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Are We Free to Offend?

An illustration of Donald Grinde and Nellie Drew in coffee foam

Donald Grinde (left) and Nellie Drew. Illustrations: Chris Lyons, BFA ’81

In Matal v. Tam, a case deciding the constitutionality of a trademark law banning the use of offensive names, the Supreme Court ruled in favor of an Asian-American rock band called The Slants, allowing them to keep their name as a matter of free speech. Many have seen this as a win for the NFL’s Washington Redskins, baseball’s Cleveland Indians and other entities that have chosen not to change their names despite decades of protests. We asked Helen “Nellie” Drew, an adjunct professor of sports law in the UB School of Law, and Donald Grinde, a professor of transnational studies who specializes in Native American studies, what this means for the future of free speech and civil rights.

(Any use of potentially offensive language in the following commentary is strictly for purposes of academic discussion. The use of such terms outside that context is not condoned by UB, the discussants or the departments they represent.)

Nellie Drew: I think the First Amendment compels the result that the justices reached. Alito, writing for the majority, said, “Our proudest boast is that we protect the speech that we hate.” That’s probably a pretty accurate description of what we have here. There’s also a significant difference between an ethnic group using a name like The Slants to reclaim what has been a derogatory term and the Washington Redskins situation.

Donald Grinde: It’s important to make that distinction. The Slants are Asian-Americans. If they want to use the term, that’s similar to black rappers using the N-word. The owners of the Washington Redskins are not Native people. Bill Maher had Ice Cube on his show after he’d used the N-word on his program recently, and Ice Cube said it’s OK for me to use that word, but you using it is like a knife.

ND: The primary point being made in the Supreme Court case was that the mark was registerable under the Lanham Act even though it was disparaging, because that particular section of the Lanham Act which prohibits the registration of disparaging marks is a violation of the First Amendment. That’s separate and apart from the question of whether or not, as a moral or ethical matter, those marks should be entertained.

DG: One of the fundamental aspects of free speech is that you do not have the right to yell “fire” in a crowded building, because it would create damage to people. The popular use of the term “redskins” creates damage to Native people. I’m concerned that the precedents limiting free speech are being ignored.

ND: Historically, those limitations are very carefully guarded. Hate speech is protected speech up to that line where you have incitement to violence. If it could be argued that the use of the mark might give rise to violence, then you might have the capacity to say that speech is no longer protected, but that’s a very high bar. I’d hope people would vote with their feet and their pocketbooks.

DG: In terms of the marketplace, you can get away with the term “redskins” because you’re disparaging less than one percent of the population. If you start doing it with African-Americans who are roughly 15 percent, or white people who are about 60 percent of the population, using terms like the N-word and “white trash” won’t be commercially viable. As long as that’s the case, I feel that the use of racial slurs and offensive images against American Indians will continue.

ND: I’m wondering whether there might be support from the players to change these names. Players have compelled ownership to rethink aspects of their approach to the game, as when Lakers owner Donald Sterling used racial slurs against African-Americans and was ousted from the NBA.

DG: There have been pitches, but that has not been successful. The players for the Washington Redskins know that most of their fans are completely OK with it, and as a player, you don’t want to anger your fans over something like that.

ND: What is your perspective on the Chicago Blackhawks?

DG: It’s not disparaging. They’re glorifying a leader of the resistance. Abraham Lincoln fought against Black Hawk. So that’s not like “redskin.” But for us, the Kansas City Chiefs name is almost as bad as the Redskins. If you refer to a Native man as “chief,” it’s a lot like calling a black man “boy.” As a child, I remember the Milwaukee Braves had a teepee behind the wall in center field, and inside the teepee was Chief Noc-A-Homa, as in “knock a homer.” Every time the Braves hit a home run, Chief Noc-A-Homa would come out through a gate in center field and do a dance in the outfield. Finally, we got them to do away with Chief Noc-A-Homa, but they don’t stop the crowd’s tomahawk chop and chant. So there has been incremental change.

ND: I would be interested in seeing studies about the impact of the embodiment of those images on Native American children over time. It has to be devastating.

DG: California passed a law against schools using the name “Redskins,” but that came demographically, once the state was a majority people of color. That may happen in the rest of the United States. Also in the last 30 years, 40 years, the number of high school teams called the Redskins has dropped by two-thirds, including at the nearby Lancaster High School.

ND: I have a question for you, and that has to do with the Florida State Seminoles. The school claims they are embraced by the Seminole nation, and that the Seminoles are proud of the way they use the trademark. Is that something you find to be true?

DG: Well, I’m Yamasee. Some of us became Seminoles. It’s not like “redskins.” These are Native people in Florida, and we’re celebrating that. Our attitude is, yes, it’s a caricature, but as long as the Seminoles go along with it, it’s OK.

ND: They’ve endorsed it. In 2005 when the NCAA required the schools with potentially insensitive marks to revise their approaches, there were a small number of schools that appealed based on ongoing relationships with local Native American groups that had endorsed their use. But I was curious about the Native perspective generally, that that was an honor as opposed to a disparagement.

DG: At the University of Utah, where I was the director of Native American studies, the teams are called the Utes. Now that’s not disparaging. It’s a representation of a tribe within the state of Utah. Actually Utah is named after the Utes, and the Utes then said that’s OK.

ND: So that’s consent.

DG: Right. That’s similar to The Slants using the term “slants.”

How do you take your coffee?

Donald Grinde and Nellie Drew

Donald: Black.

Nellie: Black.