The Redskins football team can keep its trademark name and logos, a federal judge ruled Wednesday, because a group of activists didn’t provide enough evidence that the team’s moniker insulted and disparaged a substantial number of Native Americans.
… The Native Americans, led by Cheyenne activist Suzan Shown Harjo, had argued that the team’s name and feather-wearing Indian mascot trivialize a tragic time when Indians were victims of genocide and forced off their land by settlers and U.S. soldiers. They cited a 1946 federal law that prohibits the government from registering a trademark that disparages any race, religion or other group.
According to the SF Chronicle article, the reason U.S. District Judge Colleen Kollar-Kotelly gave for overturning the Trademark Board’s 1999 decision was because relied on a “1996 survey of Native Americans’ general reactions to the word ‘redskin’” rather than demonstrating that the trademark “disparaged a “substantial composite” of Native Americans at the time the first trademark was registered in 1967.”
But, Geoff Nunberg, who served (pro bono) as the expert witness for the plaintiffs, says otherwise:
In making our case, we put together what I think was a pretty strong portfolio of evidence to support the claim that redskin was a disparaging term when the mark was originally registered and remained so afterward. We had print citations for the word going back to the nineteenth century, like a passage from the 1910 edition of the Encyclopedia Britannica that described the word as not being “in good repute.”
And, according to Nunberg, the actual decision was far less coherent than the Chronicle article implies:
Her arguments betrayed the mix of ignorance and illogicality that are depressingly common when courts stray into linguistic territory.
But what really caught my attention was a follow-up Language Log post by Christopher Potts:
The decision is surprising because it is so clearly opposed to the established conventions for using and understanding epithets and other expressive content words. In general, such words have the property that their interpretation on a given occasion of use is out of the speaker’s control. It rests instead with the audience.
… Why are the meanings of expressive content items basically out of their users’ control? The answer probably lies in the fact that they are a kind of performative word . Peformatives permit speakers to accomplish certain acts merely by uttering them. The verb promise is a typical example: uttering I promise to take out the trash just is the act of promising to take out the trash. … Thus, it is surprising that lawyers arguing against the name Redskins did not win their case merely by presenting evidence that redskin is likely to be interpreted by a large segment of the audience as offensive. The court’s assumption seems to have been that every possible use of a word must be offensive in order to make it an inappropriate brand name. But this just isn’t how the conventions of language work.
Both posts are well worth reading. Here is the actual court decision (PDF file).