Ham: Athlete Free Speech — It’s Not The Standing, Stupid

By Eldon Ham–

(CBS) Has NBA commissioner Adam Silver lost his way?

By issuing a memo to teams that reminded them that players are expected to stand for the national anthem, he sounded like a schoolmarm scolding a class of third-graders. This is a league that has been uniquely progressive in recent years, and its stars have been vocally supportive of NFL players taking a knee in protest. Silver, though, seems late to the party while telegraphing a surprising indifference to the long history of expression in sports that got us to this point.

In 1968, American sprinters Tommie Smith and John Carlos stood at attention at the Summer Olympics wearing a raised black glove to protest racism, assassinations and war — and they were ostracized. Have we come full circle? Today there’s much debate over the notions of offensiveness and free speech on and off the field of play. But the two main arguments about thin-skinned political correctness in sports actually contradict each other — just as the NBA is taking a rigid stand against player expression.

Today’s assault on “political correctness” began with “Redskins” trademark apologists who believe the rest of us are too easily offended in a world in which fans can’t speak their minds anymore. Yet when they decry the now famous Colin Kaepernick knee, it’s they who are offended about player rights of expression — enough to shut down the players and even to boycott the NFL.

These free-speech arguments can’t coexist. On the one hand, fans are scolded for being too easily offended, just as many of those same detractors are themselves offended if they can’t force protesting athletes to stand, sit, sing and otherwise show respect just as they are told. So which is right — are we free to offend each other with impunity or not?

In 2014, an appeal board of the Patent and Trademark Office (PTO) voted to cancel the federal trademark protection for six “Redskins” marks (the “Marks”) owned by the Washington NFL franchise called Pro Football, Inc. (the “Team”). The 99-page opinion found the word “Redskins” to be a disparaging term.

The word “Redskins” was once widely used when the government paid a bounty for dead Indians, according to research. Bounty hunters used redskin scalps as a type of currency to trade for the money, hence the offensive disparagement of the term.

In today’s world, according to U.S. Code Sec. 1052, no federally registered and protected mark shall be one that consists of, among other things, disparaging or scandalous words.

Complicating matters was a 2015 court ruling about an Asian rock band called “The Slants,” holding that the anti-disparagement standard of trademark law is an unconstitutional infringement of free speech. The U.S. Supreme Court soon agreed, ruling that the Trademark Office can’t reject disparaging and offensive trademarks. This means that it violates free speech to reject offensive trademarks like “Redskins” or these actual examples of thousands of other marks previously rejected as offensive and disparaging: Heeb; Ride Hard Retard; 2 Dyke Minimum; Urban Injun; and NIGGA Naturally Intelligent God Gifted Africans.

Many argue that the Redskins name is justified as a stand against political correctness, and it certainly isn’t politically correct for Kaepernick to take the knee during our national anthem. So why the fuss by those who laud the Redskins and chide political correctness? The term “offensive” has become a highly subjective lightning rod, and the only constant seems to be whose ox is being gored.

The First Amendment allows the Redskins to use an offensive name without interference from the Trademark Office. Yet the same First Amendment also gives all the NFL and NBA players the legal right and political cover to make their statements without interference by local governments, Congress, offended political groups or the president of the United States. Yes, the privately owned leagues might legally enforce rules disallowing such conduct. Yet the NFL isn’t doing that; rather, it seems to support the players’ right to take thoughtful positions.

But not the NBA? The literal NFL rules require the players to stand at attention, be respectful and not talk or joke with each other, but everyone is free to overlook such literal mandates in favor of a larger purpose — peaceful free speech in the great American tradition of protest rather than protecting mere rituals like singing, standing or saluting.

As Smith and Carlos discovered, it’s not the standing, stupid. It’s the message that riles people. But that’s the point, is it not, Mr. Silver?

Eldon Ham is the WSCR sports legal analyst, a professor of Sports, Law & Society at IIT/Chicago-Kent College of Law and the author of numerous sports books, including All the Babe’s Men, the 2014 bronze medal winner in the national IPPY book awards for sports. Click here to read his previous work for 670thescore.com.

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