Redskins throw serious shade at The Slants’ counsel in new cert petition

April 26, 2016

(Reuters) –

On Monday, the National Football League’s Washington Redskins asked the U.S. Supreme Court to review the cancellation of several of the team’s long-held trademarks for violating the Lanham Act’s non-disparagement clause. One of the team’s arguments is that if the justices plan to consider the constitutionality of the Lanham Act’s non-disparagement provision, they need to hear from the team’s lawyers, who are “best positioned to ensure that this court enjoys the full benefits of the adversarial process.”

The petition’s very clear implication is that lawyers representing the Asian rock band The Slants in a parallel case before the Supreme Court won’t do as good a job as the team’s counsel from Arnold & Porter and Quinn Emanuel Urquhart & Sullivan. That’s a quite aggressive argument considering that The Slants and the Redskins are on the same side of the Lanham Act non-disparagement issue.

But the team had to give the Supreme Court a reason to take its case at a procedurally unusual moment. The U.S. Patent & Trademark Office cancelled the team’s trademarks in 2014, finding them to disparage Native Americans. In 2015, U.S. District Judge Gerald Lee of Alexandria, Virginia, held that the cancellations did not violate the team’s First Amendment or due process rights, even though the PTO decision came decades after the first mark was registered. The team appealed Lee’s decision to the 4th U.S. Circuit Court of Appeals, where the case has been fully briefed but not yet argued. The appellate court, in other words, has not decided whether it considers the Lanham Act’s non-disparagement clause constitutional.

Ordinarily, as you know, litigants wait for a circuit court decision before they go to the Supreme Court. The Redskins, however, have been watching developments in The Slants’ case, which was being litigated at the Federal U.S. Circuit Court of Appeals while the team’s case was before the 4th Circuit. (Trademark applicants can appeal rulings to either the Federal Circuit or their home circuit courts.) In December, the Federal Circuit issued its en banc decision in The Slants’ case, reversing the PTO’s refusal to grant the band a trademark and holding that the Lanham Act’s non-disparagement clause is unconstitutional under the First Amendment’s strict scrutiny standard.

Last week, the Justice Department and the PTO filed a petition asking the Supreme Court to review the Federal Circuit ruling. The government’s petition prompted the Redskins’ filing on Monday.

The team’s brief argues that if the Supreme Court decides to take The Slants’ case, it must also hear from the team – and not just as an amicus. According to the petition, The Slants’ case presents too limited a question because it involved only the First Amendment right to register a trademark. The team’s case, because it involved the cancellation of long-lived trademarks, “poses the gravest threat to free speech and is by far the most constitutionally suspect,” according to the team’s petition, which also invokes due process concerns.

Fair enough, and the team was able to cite two relatively recent examples of cases in which the Supreme Court granted cert before appellate judgments in order to expand its review of important constitutional questions. One case was a companion to U.S. v. Booker, the 2005 case on the federal sentencing guidelines. The other was related to the 2003 affirmative action case of Grutter v. Bollinger.

So why does the team believe it must be heard as a party? Because, among other reasons, it believes its lawyers can best present arguments that the non-disparagement clause violates the First Amendment. According to the team’s cert petition, The Slants’ lawyers from Archer & Greiner “omitted key points” in their First Amendment briefing before the en banc Federal Circuit, filing “an undersized brief that was barely half the word limit.” The Federal Circuit, according to the team, ultimately rejected Archer & Greiner’s centerpiece argument that trademarks are commercial speech “and instead adopted the team’s position that (the non-disparagement clause) regulates core expressive activity-and does so for reasons unrelated to any commercial purpose.”

In fact, the team said, the Federal Circuit’s First Amendment analysis in The Slants’ case seems to have relied on the Redskins’ opening brief at the 4th Circuit, which had been filed a couple months before the Federal Circuit ruling. (The team also appeared as an amicus in The Slants’ case at the Federal Circuit.) So according to the team, if the Supreme Court wants to decide whether the Federal Circuit was right about trademarks, disparagement and the First Amendment, it should hear from the best-prepared advocates.

“This court relies on a robust adversarial process to fully vet questions before it,” the cert petition said. “The Team, not (The Slants), is the best suited to serve this function here.”

I emailed Ronald Coleman of Archer & Greiner, who argued for The Slants at the Federal Circuit, to see what he thought of the team’s cert petition. “We’re just reviewing these papers now, so we’re not in a position to comment,” he wrote back. “In any event, however, in all likelihood our response will almost certainly be reserved for the court.”

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