Redskins, hammers and sickles, burning flags

[Volokh, Eugene]

        Well, it seems to me that trademarks and copyrights are an example
of a designated public forum, a la the program in Rosenberger v. University
of Virginia:  The government creates a special sort of subsidy that is
broadly available to virtually all comers, and that is aimed at promoting
the participants' own speech rather than adopting the speech for its own.
(I don't see any more of a government imprimatur behind the likely millions
of trademarks out than there is behind any speech in a typical designated
public forum.)

        The government does have substantial authority to define the
boundaries of the forum, even in a content-based way; for instance, an
evenhanded prohibition on the "Seven Dirty Words" from Pacifica would
probably be constitutional.  But it can't do this in a viewpoint-based way
-- for instance, it can't say "we'll allow all trademarks but not racist
ones," or say "we'll allow all trademarks but not offensive ones" but then
interpret offensiveness to apply only to certain viewpoints.

        Do people who support the rejection of the Redskins trademark reason
that the government has the constitutional power to deny registration to any
trademark that it just doesn't want to allow, for instance a mark that uses
the hammer and sickle, or a mark that shows a burning U.S. flag?  Or is the
claim only that the law can apply a viewpoint-neutral "offensiveness"
standard -- and, if so, (1) is there any reason to think that it's being
applied in a viewpoint-neutral way here, and (2) how relevant (if at all) is
it that most Americans *and most American Indians* do not find the mark
offensive?

        Eugene

> -----Original Message-----
> From: Frank Cross [SMTP:crossf at MAIL.UTEXAS.EDU]
> Sent: Tuesday, March 12, 2002 3:14 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Sports Illustrated Survey etc
>
> While not a true trademark expert, I don't think First Amendment law has
> applied to the grant of trademarks.  For example, I know of marks that
> were
> denied on the grounds they were "immoral," which is a standard that falls
> far short of obscenity.
>
> Nor do I think this is necessarily unwise.  While a trademark award may
> not
> be "government speech," it does convey a sort of governmental imprimatur,
> and the government has an interest in the content of that speech.  Nor
> does
> a trademark denial prohibit speech in any way, it just limits the profits
> that may be derived from such speech.
>
>
>
> Frank Cross
> Herbert D. Kelleher Centennial Professor of Business Law
> CBA 5.202
> University of Texas at Austin
> Austin, TX 78712
>
>
>
        -----Original Message-----
        From:   Malla Pollack [SMTP:L10MXP1 at WPO.CSO.NIU.EDU]
        Sent:   Tuesday, March 12, 2002 3:01 PM
        To:     CONLAWPROF at listserv.ucla.edu
        Subject:        Re: Sports Illustrated Survey etc

        As you originally framed the issue, I thought it questioned the
propriety of the government acting to suppress speech.  But I suggest that
we also consider the extent to which we want our government to affirmatively
support something less than ideal.  This is similar to the First Amendment
theoretical distinction between what the government can do as a speaker or
funder of speech and what the government can do regarding third persons'
speech.
             As a trademark specialist (among other things), I am very aware
of the extent the courts are willing to interfere with the "speech" of
"alleged infringers."  Unlike the copyright act which purports to be content
and view point neutral, the federal trademark statute (the Lanham Act) has a
provision barring registration of several subsets of "offensive" marks.  .
As far as I know, this has never been challenged as a violation of the First
Amendment.
             While I do not want to suggest exactly what standard to use in
any case, I do think that we should consider the type of government action
(or non-action) we are considering.  Hojo merely involved an action
requesting that a mark's registration be canceled.  It did not involve an
action requesting the government bar use of the mark.


        Malla Pollack
        Northern Illinois Univ., College of Law
        DeKalb, Illinois 60115
        815-753-1160; (fax) 815-753-9499
        mallapollack at niu.ed <mailto:mallapollack at niu.ed>u

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