So Chainsaw Danny Snyder is digging in his heels again. This time, after the federal government determined this week that his football team’s name disparages Native Americans, he trotted out his trademark lawyer, Robert Raskopf, to yawn at the decision and assure racists and idiots everywhere that he’d seen this movie before and knew how it ended, which is the opposite of how most Redskins’ games end—in victory.
At least we were spared hearing anything from the execrable Lanny Davis, another of the execrable Snyder’s execrable henchmen. Lanny, a quick Google reveals, has had plenty on his plate lately anyway, the kinds of items one would expect of the ur-Fox Democrat: Writing for HuffPo that Jeb Bush would be a great candidate, whacking Obama on Fox News over the Bowe Bergdahl deal. Thank God it’s an election year. This is like choosing between water torture and nipple clothespins, but I’d much rather have to hear Davis lecture us about how he has regretfully come to conclude that the Democrats deserve to lose the Senate than listen to him bray about the grand tradition of the Washington football club’s name.
Snyder and Raskopf, alas, have a case—not an irrefutable case, but a case—on First Amendment grounds. But that question, remember, has never been tested. When a federal court in 2003 overruled the Patent and Trademark Office the last time that office declared the team’s name disparaging, it did not do so on free-speech grounds. It tossed the case mainly on the grounds that the plaintiffs had waited too long to file suit.
Presuming that the plaintiffs won’t make that mistake this time (and they apparently have not), we might someday soon have a court decide the question on the merits. That will be interesting. As I say, Snyder has an argument. Thursday morning on the radio, I heard Bruce Fein, the estimable conservative-but-heterodox constitutional scholar, say it was basically an open-and-shut First Amendment claim: Just as the American Nazi Party was allowed to march in Skokie, Illinois, in the 1970s (a heavily Jewish Chicago suburb full of Holocaust survivors), so Chainsaw Dan is entitled to call his team whatever he wants to call it.
Snyder, who is Jewish, ought to give some serious reflection to the notion that an expert defending his position had to reach deep enough into the constitutional barrel to haul out the American Nazi Party.
First of all, Snyder, who is Jewish, ought to give some serious reflection to the notion that an expert defending his position had to reach deep enough into the constitutional barrel to haul out the American Nazi Party. But second, while I can’t claim to match Fein on constitutional bona fides, as the good citizens of Carrboro, North Carolina, would no doubt attest based on the night I debated him there, I would venture that his analogy is pretty inexact. The First Amendment is not absolute. There’s the clear and present danger exception. The fighting words exception. The libel and slander exception. The time, place, and manner exception. Read of them here. Obviously, a federal judge so inclined could very easily find that the offensive name constitutes fighting words or slander. In fact, I find it difficult to imagine that a federal judge who isn’t a knuckle-dragging hellspawn of the Federalist Society could find in 2014 (or 2015 or whenever the case is decided) that the name Redskins isn’t slander.
But that’s for down the road. For now, what should happen? It seems to me, decent and like-minded citizens who are leading this fight, that your next target is FedEx. The delivery giant has, of course, paid the Snyder organization since the late 1990s to have its name plastered on the stadium. FedEx is paying the team $7.6 million a year through 2025. Only—and this is really odd, but true—Royal Phillips Electronics pays more per year for naming rights, shelling out $9.3 million per annum to the Atlanta Hawks for the naming rights to Phillips Arena. Most naming rights run in the $1 million to $3 million a year range.
FedEx is probably already locked in for this fall’s season. But suppose enough pressure could be placed on the corporation that by next fall, or the next, it is willing to say: We no longer wish to be associated with this team. The company will say that if it is made to feel that its association with the team is bad for business. Into the bargain, FedEx would save itself—and cost the Redskins—something on the order of $75 million over a decade. FedEx is public. It has stockholders. Like pension funds and universities. You follow?
Imagine the blow that would be: “FedEx Withdraws Name From Stadium Over Redskins’ Name.” Sure, some other whorish corporation would step in. Maybe Sambo’s restaurant! There still is one. Redskins’ Field at Sambo’s Stadium. In a perverse way, I’m almost for it.