DRI-319 for week of 6-22-14: Redskins Bite the Dust – and So Do Free Markets

An Access Advertising EconBrief:

Redskins Bite the Dust – and So Do Free Markets

The Trials and Appeals Board (TTAB) of the United States Patent and Trademark Office (USPTO) recently suspended validity of the trademarks previously held by the Washington Redskins professional football team of the National Football League (NFL). The legal meaning of this action is actually much more complex than public opinion would have us believe. The importance of this action transcends its technical legal meaning, however. If we can believe polls taken to test public reaction to the case, 83% of the American public disapproves of the decision. They, too, sense that there is more at stake her than merely the letter of the law.

The Letter of the Law – and Other Letters

The federal Lanham Trademark Act of 1946 forbids the registration of “any marks that may disparage persons or bring them into contempt or disrepute.” That wording forms the basis for the current suit filed by a group of young Native American plaintiffs in 2006. The hearing was held before TTAB in March, 2013. This week the judges issued a 99-page opinion cancelling each of the 6 different trademark registrations of the name “REDSKINS” and the Redskins’ logo, an Indian brave’s head in silhouette with topknot highlighted on the left. The decision called the trademarks “disparaging to Native Americans at the respective times they were registered.” The wording was necessary to the verdict; indeed, the dissenting judge in the panel’s 2-1 ruling claimed that the majority failed to prove that the registrations were contemporaneously disparaging.

This was not the first attempt to invalidate the Redskins trademarks – far from it. The previous try came in 1999 when the TTAB also ruled against the team. That ruling was overturned on appeal. The grounds for rejection were both technical and substantive. The judges noted that the plaintiffs were well over the minimum filing age of 18 and that the registrations went as far back as the 1930s. Thus, the plaintiffs had undermined their claim to standing by failing to exercise their rights to sue earlier – if the trademarks were known to have been such an egregious slur, why hadn’t plaintiffs acted sooner? The plaintiffs also cited a resolution by the National Congress of American Indians in 1993 that denounced the name as offensive. The Congress claimed to represent 30% of all Native Americans, which the judges found insufficiently “substantial” to constitute a validation of plaintiffs’ claim.

Meanwhile, an AnnenbergPublicPolicyCenter poll found in 2004 that “90% of Native Americans [polled] said the name didn’t bother them,” as reported in the Washington Post. Team owner Daniel Snyder’s consistent position is that he will “never” change the team name since it was chosen to “honor Native Americans,” the same stand taken by NFL President Roger Goodell. Various Native American interest groups and celebrities, such as 5000-meter Olympic track gold-medalist Billy Mills, have sided with the plaintiffs. Senate Majority Leader Harry Reid jumped at the chance to play a race card, calling the team name a “racial slur” that “disparages the American people” (!?). He vows to boycott Redskins’ games until the name is changed. Roughly half his Senate colleagues sent a letter to the team demanding a name change.

The Practical Effects of the Ruling

Numerous popular sources have opined that anybody is now “free” to use the name “Redskins” for commercial purposes without repercussions. Several lawyers have pointed out that this is not true. For one thing, this latest decision is subject to judicial review just as were previous ones. Secondly, it affects only the federal registration status of the trademarks, not the right to the name. The enforceability of the trademark itself still holds under common law, state law and even federal law as outlined in the Lanham Act. The law of trademark itself takes into account such concepts as “pervasiveness of use,” which reflects actual commercial practice. In this case, the name has been in widespread use by the team for over 80 years, which gives it a strong de facto claim. (If that sounds confusing, join the club.) Finally, the appeals process itself takes at least two years to play out, so even the registration status will not change officially for awhile.

Thus, the primary impact of the ruling will be on public relations in the short run. The same commentators who cast doubt on the final result still urge Daniel Snyder to take some sort of token action – set up a foundation to benefit Native Americans, for instance – to establish his bona fides as a non-racist and lover of Native Americans.

Why the Law is an Ass

There are times when you’re right and you know why you’re right. There are other times when you’re right and you know you’re right, but you can’t quite explain why you’re right. The general public is not made up of lawyers. If judges say the trademark registrations are illegal, the public is prepared to grant it. But, like Charles Dickens’ character Mr. Bumble, they insist that the law is an ass. They just can’t demonstrate why.

The provision in the Lanham Act against disparaging trademarks is the kind of legal measure that governments love to pass. It sounds both universally desirable and utterly innocuous. Disparaging people and holding them up to ridicule and contempt is a bad thing, isn’t it? We’re against that, aren’t we? So why not pass a law against it – in effect – by forbidding disparaging trademarks. In 1946, when the Lanham Act passed, governments were big on passing laws that were little more than joint resolutions. The Employment Act of 1946, for example, committed the federal government to achieving “maximum employment, purchasing power and income.” There is no objective way to define these things and lawmakers didn’t try – they just passed the law as a way to show the whole world that they were really, really serious about doing good, not just kidding around the way legislatures usually are. Oh, and by the way, any time they needed an excuse for spending a huge wad of the taxpayers’ money, they now had one. (Besides, before the war a famous economist had said that it was all right to spend more money than you had.)

The law against disparaging trademarks was passed in the same ebullient mood as was the Employment Act of 1946. Government doesn’t actually have the power to guarantee maximum employment or income or purchasing power and it also doesn’t have the power to objectively identify disparagement. Unlike beauty, a slur is not in the eye of the beholder. It is in the brain of the author; it is subjective because it depends on intent. Men often call each other “bastard” or “son of a bitch”; each can be either deadly serious invective or completely frivolous, depending on the context. The infamous “n-word,” so taboo that it dare not speak its name, is in fact used by blacks toward each other routinely. It can be either a casual form of address or a form of disparagement and contempt – depending on the intent of the user.

Everybody – including even Native Americans – knows that Washington football team owner George Preston Marshall, one of the legendary patriarchs of the NFL, did not choose the team name “Redskins” in order to disparage Native Americans or hold up to ridicule or contempt. He chose it to emphasize the fighting and competitive qualities he wanted the team to exemplify, because Indians in the old West were known as fierce, formidable fighters. Whether he actually meant to honor Native Americans or merely to trade on their reputation is open to debate, but it is an open-and-shut, 100%, Good-Housekeeping-seal-of-approval-certified certainty that he was not using the word “Redskins” as a slur. Why? Because by doing so he would have been committing commercial suicide by slandering his own team, that’s why.

That brings us to the second area resemblance of between the Lanham Act and the Employment Act of 1946. The Employment Act was unnecessary because free markets when left to their own devices already do the best job of promoting high incomes, low unemployment and strong purchasing power than can be done. And free markets are the best guarantee against the use of disparaging trademarks, because the inherent purpose of a trademark is to promote identification with the business. Who wants their business identified with a slur? We don’t need a huge bureaucracy devoted to the business of rooting out and eradicating business trademarks that are really slurs. Free markets do that job automatically by driving offending businesses out of business. Why otherwise would businesses spend so much time and money worrying about public relations and agonizing over names and name changes?

If the only reason for the persistence of legislation like the Employment Act and the Lanham Act were starry-eyed idealism, we could write off them off as the pursuit of perfect justice, the attempt to make government write checks it can’t cover in the figurative sense as well as the financial. Idealism may explain the origin of these laws but not their persistence long after their imposture has been exposed.

Absolute Democracy

By coincidence, another political-correctness scandal competed with the Redskins trademark revocation for headlines. The story was first reported as follows: A 3-year-old girl suffered disfiguring facial bites by three dogs (allegedly “pit bulls”). She was taken to a Kentucky Fried Chicken franchise by a parent, where she was asked to leave, after an order was placed for her favorite meal of sweet tea and mashed potatoes, because her presence was “disrupting the other customers.” Her relatives took this story of “discrimination” to the news media.

Representatives of the parent corporation were guarded in their reaction to the accusation, but unreserved in the sympathy they expressed for the girl. They promised a donation of $30,000.00 to aid in treatment of her injuries and for her future welfare. They also promised to follow up to confirm what actually happened at the store.

What actually happened, according to their follow-up investigation, was nothing. This was the result of their internal probe and a probe by an independent company they hired to do its own investigation. Review of the store’s surveillance tape showed no sign of the girl or her relatives on the day in question. A review of transactions showed no order for “sweet tea and mashed potatoes” on that day, either. KFC released a finding that the incident was a hoax, a conclusion that was disputed by another relative of the girl who was not one of those supposedly present at the incident.

Perhaps the most significant part of this episode is that KFC did not retract their promise of a $30,000.00 donation to the girl – despite their announced finding that her relatives had perpetrated a hoax against the corporation.

The Redskins trademark case and the apparent KFC hoax are related by the desire of interested parties to use political correctness as a cover for extracting money using the legal system. Pecuniary extortion is crudely obvious in the KFC case; $30,000 is the blackmail that company officials are willing to pay to avoid being crucified in a public-relations scandal manufactured out of nothing.

Their investigation was aimed at avoiding a charge of “discrimination” against the girl, which might have resulted in a six- or seven-figure lawsuit and an even-worse PR scandal. But their willingness to pay blackmail suggests an indifference to the problem of “moral hazard,” something that clearly influences Daniel Snyder’s decision not to change the Redskins’ team name. Willingness to pay encourages more blackmail; changing the team name encourages more meddling by activists.

The Redskins case is more subtle. Commentators stress that plaintiffs are unlikely to prevail on the legal merits, but doubt that the team can stand the continuous heat put on it by the PR blowtorch lit by the TTAB verdict. That is where the money comes in – owner Daniel Snyder will have to pony up enough money to the various Native American interest groups to buy their silence. Of course, this will be spun by both sides as a cultural contribution, meant to make reparations for our history of injustice and brutality to the Native American, and so on.

Of course, Snyder may turn out to be as good as his word; he may never agree to change the Redskins’ team name. The NFL – either the Commissioner or the other owners exerting their influence – may step in and force a name change. Or Snyder may even sell the team rather than be forced to change their name against his will. That would leave the plaintiffs and Native American interest groups out in the cold – financially speaking. Does that invalidate the economic theory of absolute democracy as applied to this case?

No. Plaintiffs stand to benefit in an alternative manner. Instead of gaining monetary compensation for their efforts, they would earn psychological (psychic) utility. From everyday observation, as well as our own inner grasp of human nature, we realize that some people who cannot achieve nevertheless earn psychic pleasure from thwarting the achievements of others. In this particular case, the prospective psychic gains earned by some Native Americans from overturning the Redskins name and the prospective monetary gains earned from blackmailing the Redskins’ owner are substitute goods; the favorable verdict handed down by TTAB makes it odds-on that that one or the other will be enjoyed.

This substitution potential is responsible for the rise and continued popularity of the doctrine of political correctness. “Race hustlers” like Jesse Jackson and Al Sharpton have earned handsome financial rewards for themselves and/or clients by demonizing innocuous words and deeds of whites as “racist.” What is seldom recognized, though, is the fact that their popularity among blacks at large is owed to the psychic rewards they confer upon the rank-and-file. When (let us say) a white English teacher is demoted or fired for teaching the wrong work by Mark Twain or Joseph Conrad, followers of Jackson and Sharpton delight. They know full well that the exercise is a con – that is the point. They feel empowered by the fact that they may freely use the n-word while whites are prevented from doing so. Indeed, this is simply a reversal of the scenario under Jim Crow, when blacks were forced to the back of the bus or to restricted drinking fountains. In both cases, the power of the law is used to earn psychic rewards by imposing psychic losses on others.

Legal action was necessary in the Redskins’ case because plaintiffs were bucking an institution that had been validated by the free market. The Washington Redskins have over 80 years of marketplace success on their record; the free market refused to punish their so-called slur against Native Americans. In fact, the better case is that the team has rehabilitated the connotation of the word “redskins” through its success on the field and its continuing visibility in the nation’s capital. Goodness knows, countless words have undergone this sort of metamorphosis, changing from insults to terms of honor.

When plaintiffs could not prevail through honest persuasion they adopted the modern American method – they turned to legal force. However tempting it might be to associate this tactic exclusively with the political correctness of the left, the truth is that it is the means of first resort for conservatives as well. That is the seeming paradox of absolute democracy, which represents the dictatorship of the law over free choice.

Inevitably, advocates of political correctness cite necessity as their justification. The free market is not free and does not work, so the government must step in. The planted axioms – that free markets usually fail while governments always work – are nearly 180 degrees out of phase. The failures of government highlight our daily lives, but the successes of the free market tend to be taken for granted. The famous episode of Little Black Sambo and its epilogue serves as a reminder.

The Little Black Sambo stories and Sambo Restaurants

The character of Little Black Sambo and the stories about him have been redefined by their detractors – that is to say, demonized as racist caricatures that dehumanize and degrade American blacks. This is false. In the first place, the original character of Little Black Sambo, as first portrayed in stories written in the late 19th and early 20th centuries, was Tamil (Indian or Sri Lankan) – a reflection of the ecumenical reach exerted by the term “black” in those days. Eventually, the character was adapted to many nationalities and ethnic identities, including not only American black but also Japanese. (Indeed, he remains today a hero to children of Japan, who remain blissfully untouched by the political correctness familiar to Americans.) This is not surprising, since the stories portray a little boy whose heroic perseverance in the face of obstacles is an imperishable life lesson. Presumably, that is why the stories are among the bestselling children’s storybooks of all time.

When American versions of the story portrayed Little Black Sambo as an American or African black, this eventually caught the eye of disapproving blacks like the poet Langston Hughes, who called the picture-book depiction a classic case of the “pickaninny” stereotype. Defenders of the stories noted that when the single word “black” was removed and any similarity to American or African blacks deleted from the illustrations, the stories attracted no charges of racism. Yet black interest groups echoed the psychologist Alvin Poussaint, who claimed that “I just don’t see how I can get past the title and what it means,” regardless of any merit the stories might contain. The storybooks disappeared from schools, nurseries and libraries.

In 1957, two restaurant owners in Santa Barbara, CA, opened a casual restaurant serving ethnic American food. In the manner of countless others, they chose a name that combined their two nicknames, “Sam” (Sam Battistone) and “Bo” (Newell Bohnett). Over time, Sambo’s Restaurant’s popularity encouraged them to franchise their concept. It grew into a nationwide company with 1,117 locations. Many of these were decorated with pictures and statuary that borrowed from the imagery of the “Little Black Sambo” stories.

The restaurants were a marketplace success, based on their food, service and ambience. But in the 1970s, black interest groups began raising objections to the use of the “Sambo” name and imagery, calling it – you guessed it – racist. Defenders of the franchise cited the value and longstanding popularity of the stories. They noted the success and popularity of the restaurants. All to no avail. By 1981, the franchising corporation was bankrupt. Today, only the original Santa Barbara location remains.

This was certainly not a victory for truth and justice. But it was a victory for the American way – that is, the true American way of free markets. Opponents of Sambo’s Restaurants went to the court of public opinion and made their case. Odious though it seemed to patrons of the restaurants, the opponents won out.

So much for the notion that free markets are rigged against political correctness. In the case of Sambo’s Restaurants, people concluded that the name tended to stigmatize blacks and they voluntarily chose not to patronize the restaurants. The restaurants went out of business. This was the appropriate way to reach this outcome because the people who were benefitting from the restaurants decided that the costs of production outweighed the benefits, and chose to forego those benefits. The decisive factor was that bigotry was (apparently) a cost of production.

Instead of achieving their aim through legal coercion or blackmail, activists achieved it through voluntary persuasion. Alas, that lesson has now been forgotten by both the political Left and Right.