Naming things and rights

Volokh, Eugene VOLOKH at
Thu Aug 11 16:28:36 PDT 2005

	The constitutional law answer, if this were (say) a "hostile
public accommodations environment" lawsuit against such a team (or, more
controversially, the cancellation of the Washington Redskins trademark),
is "the First Amendment."  Given that the NCAA is not a state actor, of
course, the issue isn't really a matter of legal rights.

	But in any event, I should note that a seemingly scientific
Sports Illustrated survey reported on p. 66 of the Mar. 4, 2002 issue (n
= 351 American Indians) reported the following:

	"Asked if high school and college teams should stop using Indian
nicknames, 81% of Native American respondents said no.  As for pro
sports, 83% of Native American respondents said teams should not stop
using Indian nicknames, mascots, characters and symbols.  Opinion is far
more divided on reservations, yet a majority (67%) there said the usage
by pro teams should not cease, while 32% said it should.  Asked if they
were offended by the name Redskins, 75% of Native American respondents
in SI's poll said they were not, and even on reservations, where Native
American culture and influence are perhaps felt most intensely, 62% said
they weren't offended.  Overall, 69% of Native American respondents--and
57% of those living on reservations--feel it's O.K. for the Washington
Redskins to continue using the name. . . . Only 29% of Native Americans,
and 40% living on reservations, thought [the owner of the Redskins]
should change his team's name."

	Naturally, there are possible flaws with many surveys.  But if
the survey is right, then it suggests that the question is subtly
different -- it's "by what right does one continue to use terms that
some members of the group find offensive, but that a majority of the
group finds not to be offensive, and that a majority of the group thinks
it's OK to keep using."  (It may also matter whether the term has often
been used as a pejorative; for instance, I'm not wild about the
Redskins, though I think there's a constitutional right to keep using
the name free of government restriction or government discrimination in
the administration of the trademark system, but I find the arguments
against using other Indian-related team names to be quite weak.)


> -----Original Message-----
> From: conlawprof-bounces at 
> [mailto:conlawprof-bounces at] On Behalf Of Bob Sheridan
> Sent: Thursday, August 11, 2005 4:17 PM
> To: Bradford P. Wilson
> Cc: conlawprof at
> Subject: Re: on the question of naming things
> The issue comes up again in another context, that of the NCAA 
> prohibiting Indian, oops, Native American names for athletic teams:  
> Seminoles, Illinois, etc.
> These names acquire what seems to be a vested interest among some in 
> continuing to use words that are offensive to those described or 
> caricatured. 
> My question is, by what right does one continue to use 
> offensive terms 
> after one has been told that they are offensive or insulting?
> I ask it here.
> rs
> Bradford P. Wilson wrote:
> > *Nelson's point is well taken.  I was using the term "legitimate" in
> > the sense of "legal".  The description of Scalia as a 
> homophobe struck 
> > me as preposterous, for the reasons Nelson and Matt Franck have 
> > mentioned.  Maybe I should take this opportunity to say that the 
> > recent posting describing Roberts's advice on congressional control 
> > over Supreme Court jurisdiction as "troubling" is itself 
> troubling.  
> > The Supreme Court has itself long held that the "exceptions clause" 
> > allows control by Congress of the Court's appellate jurisdiction.  
> > Roberts is about as conventional as one can be on the 
> subject.  What's 
> > troubling?  Brad Wilson*
> > 
> --------------------------------------------------------------
> ----------
> > *From:* Nelson Lund [mailto:nlund at]
> > *Sent:* Thursday, August 11, 2005 6:43 PM
> > *To:* Bradford P. Wilson
> > *Cc:* conlawprof at
> > *Subject:* Re: on the question of naming things
> >
> >     I'm not sure you're right, Brad. Part of the agenda pursued by
> >     some seems to be a form of moral bullying in which those who use
> >     neutral, non-judgmental terms like "homosexual" are accused of
> >     being "homophobes," so that they and others will be pressured to
> >     use alternative terms that connote approval of homosexual
> >     behavior. This kind of bullying certainly is and should 
> be /legal/
> >     in a free society, whether or not it effectively advances the
> >     agenda of those who use the technique. But I'm not sure it's
> >     "perfectly legitimate."
> >
> >     Nelson
> >
> >
> >     Bradford P. Wilson wrote:
> >
> >>     *I've been following the discussion of whether the use of the
> >>     term "homosexual" is pejorative, or whether it isn't but
> >>     shouldn't be used because of current sensibilities of 
> many people
> >>     whom the term accurately describes, and so forth.  It 
> may be that
> >>     there's a generational consideration here.  Someone 
> mentioned the
> >>     "old-fashioned" way of putting things.  If the use by
> >>     old-fashioned people (e.g, older people) is innocent of moral
> >>     baggage, it's hard to get in high dudgeon about it, 
> isn't it?  My
> >>     roommate and best friend in college, when he had gained my
> >>     confidence, let me in on his secret, describing himself as
> >>     homosexual.  This was circa 1970.  I don't believe he 
> would today
> >>     take offense at his self-description.  I rather think it the
> >>     better word to use in a juridical context in which the 
> judge does
> >>     not think it proper to comment on the morality of the person or
> >>     the behavior being described.  Here is the OED on 
> "homosexual":  *
> >>     ** 
> >>     *A.* /adj./ Involving, related to, or characterized by a sexual
> >>     propensity for one's own sex; of or involving sexual activity
> >>     with a member of one's own sex, or between individuals of the
> >>     same sex.
> >>      
> >>     *No doubt many of you are familiar with DuBois's 
> letter to young
> >>     Roland Barton in 1928, when DuBois was 60 years old (and old
> >>     fashioned?), defending the use of the word "Negro".  He
> >>     acknowledged that there were historical reasons for Barton to
> >>     dislike the word.  Still, given the "wide and 
> continued use" that
> >>     has rendered in the course of time many a customary name
> >>     accurate, "'Negro' is quite as accurate, quite as old and quite
> >>     as definite as any name of any great group of people."*
> >>     ** 
> >>     *How does he conclude?  "Get this then, Roland, and get it
> >>     straight even if it pierces your soul: A Negro by any 
> other name
> >>     would be just as black and just as white; just as ashamed of
> >>     himself and just as shamed by others, as today.  It is not the
> >>     name--it's the Thing that counts.  Come on, Kid, let's 
> go get the
> >>     Thing!"  That's not advice for the judge, in my 
> opinion.  But it
> >>     /is/ advice for those with an agenda that it is perfectly
> >>     legitimate to pursue in a free society (as Justice Scalia makes
> >>     clear in his dissent in Lawrence).  Brad Wilson*
> >>
> >>------------------------------------------------------------
> ----------
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