Today’s ruling by the U.S. Supreme Court, that even trademarks which are racially disparaging are protected by the First Amendment, and therefore such trademarks are entitled to federal registration, almost certainly dooms a legal action by Native Americans to cancel several “R*dsk*n” trademarks.
However, the ruling does not necessarily shield radio and TV broadcasters from legal attacks based upon their repeated and unnecessary use of what many Native Americans refer to as the “R-word” – which they maintain is as racially disparaging to them as the “N-word” is for African Americans – because the Supreme Court has ruled the Federal Communications Commission [FCC] can punish broadcasters which use language which in other situations would be protected by the First Amendment, says public interest law professor John Banzhaf.
Banzhaf has led the movement to use broadcast law as a weapon against the continued use by radio and TV stations of the word “R*dskins” – which many American Indians, and even some legal rulings, have characterized as a very harmful racist slur – because broadcasters are required to operate in the public interest in order to retain their valuable public license. The ability to use a name to refer to yourself or your group is very different from the exclusive right to operate a station on a given frequency, maintains Banzhaf.
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For example, the Supreme Court has repeatedly said that the FCC may regulate the use of various expletives, including the word “f*ck,” but upheld the right of a man to wear a jacket in public in a courthouse which read “F*ck the Draft.” Even when the issue very recently became the extent to which the FCC can regulate what it calls “fleeting expletives” – rude words used only once, and in a completely non-sexual context – the Supreme Court has not undercut this power.
An initial challenge to “r*dsk*ns” upon this ground was rejected by the staff of the FCC, in part because it was not filed in a timely fashion. Moreover, said Banzhaf, any decision limiting broadcaster use of the name of the popular football team would almost certainly have to be made by the FCC’s commissioners, not just by the staff. The Commission has not yet ruled on this issue, noted Banzhaf.
In the Supreme Court case, musicians of Asian heritage decided to name their music group the “Slants,” ordinarily a disparaging word. However, many would probably agree that it is much less derogatory when the group which voluntarily adopted it is the very group allegedly being disparaged.
However, the name “R*dsk*in” was not adopted by Native Americans, and it has been found to be a racially disparaging slur by virtually every Native American organization.
Even so, Banzhaf questions whether the FCC would let a group of African American musicians which named itself the “N*gg*rs” be referred to by that name on the air. Interestingly, broadcasters usually refrained from using the proper name “Niggas With Attitude” by its full name, instead saying NWA.