The ACLU gets it wrong

The ACLU has decided to take the side of the Washington Redskins:

Last June, the U.S. Patent and Trademark Office cancelled the football team’s federally registered trademark, which it deemed disparaging to Native Americans. We don’t disagree with that judgment, but the government should not be able to decide what types of speech are forbidden – even when the speech in question reflects viewpoints we all agree are repellent.

Here’s the first error: canceling the Redskins’ trademark does not forbid any speech whatsoever.

The team took the case to court, and the ACLU filed an amicus brief yesterday, alongside the ACLU of Virginia and NYU Tech Law & Policy clinic, arguing that the government cannot constitutionally deny trademark benefits on the basis of speech that it disagrees with or finds controversial.

This misses the fundamental point that trademarks are themselves a restriction on speech.

The entire purpose of a trademark is to restrict how other people can use the specified word or phrase. In this case, the government is allowing speech that would not otherwise be allowed, on the basis that the speech is offensive. In doing so, yes, it is refusing to protect the commercial activities of the Washington Redskins — but government has no constitutional mandate to protect business profits. The first amendment does not mandate that government must ensure that I can make a profit from all of my protected speech. (If the ACLU thinks otherwise, perhaps they can get me some of the riches I should be raking in from this web site.)

Generally, the ACLU should not be taking part in lawsuits attempting to force the government to restrict speech for a business’s commercial gain — even if government’s refusal to restrict speech makes the business less likely to speak because it can’t make enough profit. I say this because if we start allowing that argument, the ACLU will presumably have to start taking part in lawsuits to try and force the government to grant patents and trademarks and broad copyright coverage on absolutely everything.

Government doesn’t want software patents? Why, that’s a first amendment violation of the company’s right to make money by shipping patented software, which counts as protected speech — or so ACLU logic would apparently have us believe. Copyright expired on an old book? Why, that’s a first amendment violation of the right to make money by being the exclusive source of said work, right?

Furthermore, cancelling the Washington team’s trademark may not even be effective, because cancelling a trademark doesn’t prevent the team from using it. It does, however, make it easier for other people to disseminate it. So the Trademark Office decision in this case might result in even more use of a distasteful term – not less.

Exactly. The ACLU points out the stupidity of its own argument. Canceling the trademark simply does not restrict the speech of the (former) trademark owner. It merely makes them less able to use exclusivity to profit from that speech. But again, making all speech profitable is not a constitutional mandate; if you think otherwise, tell me where I can get my payout.