The ACLU is famous for its absolutist position on free speech. It once defended the right of neo-Nazis to march through a neighborhood where Holocaust survivors lived in Skokie, Illinois. So after activists asked the government to cancel the trademark of the Washington Redskins for disparaging Native Americans, the ACLU jumped to the Redskins' defense.
But the group wanted to be very clear it wasn't endorsing the football team's name. "You’re not wrong, you're just an a**hole," the group said in a Friday blog post explaining why it submitted an amicus brief siding with the Redskins.
The law empowers the US Patent and Trademark Office to cancel trademarks it judges to be "disparaging," "immoral," or "scandalous." The problem is that these terms are often in the eye of the beholder:
These vague terms have led to a host of arbitrary decisions about what is "immoral" or "scandalous," leading to the inconsistent policing of speech. This results in the Trademark Office deciding that while it is permissible to register "Wanker" for beer, it is not allowed for clothing. And "Cocaine" is fine for clothing, but not for soft drinks. You can have a book series trademarked "Managing Your Inner A**hole" but not "The Complete A**hole's Guide To..."
Even more problematic is that the Trademark Office has attempted to protect minority groups from self-disparagement, by considering the race of the speaker. Take the example of the band The Slants. The band describes itself as Asian-American and chose its name as a method of reappropriating the term. The Trademark Office nonetheless rejected the trademark because of its members' ethnic heritage, stating that the term "slant" as applied to a band composed of Asian-Americans could only be seen as a slur.
The ACLU argues that letting the government decide which trademarks are "disparaging" violates the First Amendment. And the First Amendment protects everyone — even assholes.