AP National Writer
POSTED: 11:07 a.m. HST, Jun 21, 2014
LAST UPDATED: 11:13 a.m. HST, Jun 21, 2014
Something is happening just beneath the fight over the name of a certain Washington, D.C., pro football team: America is working through the process of determining what is -- or is not -- racially offensive.
What is a slur, and who gets to decide? How many people must be offended to tip the scales? Why should some be forced to sacrifice their traditions out of respect for others?
We are a long way from consensus on these questions, judging by the response to a federal ruling that the "Redskins" team name is disparaging and its trademarks should be canceled.
The team is appealing the decision, and even if it loses its trademark, it can still use the name. But this latest development highlights the limitations of how America wrestles with certain racial statements, and our struggle to balance free speech and social good.
A rapidly diversifying nation has more need than ever to figure out what is racially offensive.
Some offenses are undeniable: NBA owner Donald Sterling earned universal condemnation for asking his mistress not to bring black people to his games.
Yet in an era of blunt and sometimes coarse online discussion and political debate, Americans continue to disagree about the nature of calling Hispanics who cross the border without documents "illegals," or the propriety of images that depict President Barack Obama as a "witch doctor."
And it took years of discussion to win makeovers for Aunt Jemima and Uncle Ben, the stereotypical black faces used to sell syrup and rice.
Jim McCarthy, a lawyer who followed the Redskins trademark case, said he is not offended by the name, but "there's no denying the fact that a certain percentage of Native Americans are offended. We don't know if it's a minority, a majority, but it's a fact."
"If we want to be the best version of ourselves in our society, do we want to promote that, or do we want to minimize that?" he asked.
"I'd love it to be different where people just cooperate to effect change," he said. "But we're a very adversarial society."
Michael Lindsay, who was lead attorney for Indians in a prior trademark case, said there are two ways to determine if something is offensive.
"The first is the legal path. The other is out in the real world. The legal test, it seems to me, actually does have something to teach the real world," said Lindsay, of the Dorsey and Whitney firm in Minneapolis.
Here is what the Trademark Trial and Appeal Board, ruling Wednesday in a case first filed more than 20 years ago, tried to show the real world:
-- What matters is if "Redskins" is disparaging to Native Americans -- whether other ethnic groups are offended doesn't matter.
-- A "substantial" percentage of Native Americans must be offended -- not a majority. The judges defined that threshold at 30 percent.
-- A disparaging term does not require intent: "Redskins" can still be disparaging even if the team says it is intended to show honor and respect.
Based on testimony from linguistics and lexicography experts, and a review of how the term was used in dictionaries, books, newspapers, magazines and movies, the board ruled 2-1 that the term was disparaging to Native Americans.
The dissenting opinion was not a ringing endorsement of the term: "I am not suggesting that the term "redskins" was not disparaging ... Rather, my conclusion is that the evidence petitioners put forth fails to show that it was," the judge wrote.
All of which left Paul Calobrisi, co-founder of www.savethewashingtonredskins.com, quite unsatisfied. In his opinion, there's a simple way to determine whether something is a slur: The majority rules.
"I think an overwhelming majority of Native Americans should be against the name before we change it," said Calobrisi, who grew up in Virginia rooting for the team.
He resisted the idea that a few people could decide something is offensive when he did not intend to offend them.
"If they think we're demeaning them, if they think we think they are mascots, if we were doing it in any negative way, they are wrong ... As Redskins fans, we love them. Cowboys and Indians, we were the Indians. We cherish these people."
But intent is irrelevant to Lindsay, the attorney: "When a substantial percentage tell you this is offensive, you should stop. It's really that simple."
"Even if you meant no offense, if you keep using it, what does that say about you?"
It says that some people care more about their traditions than determining what is offensive, said Gillian McGoldrick, editor-in-chief of the school newspaper at Neshaminy High School in Langhorne, Pennsylvania.
Neshaminy's mascot is the "Redskins." Her newspaper recently chose to no longer print the name, but school administrators ordered them to do so. When McGoldrick and her staff resisted, administrators briefly confiscated the newspapers.
At first, McGoldrick thought the name honored Native Americans. But when an Indian school parent objected, she researched the history and usage of the word and changed her mind. She doesn't think those who support the team name have fully investigated the issue.
"I don't think they want to," she said. "I think they want to decide the word for themselves. But that's not how this works. We have dictionaries for that."
The Merriam-Webster Dictionary says the term is "very offensive and should be avoided." But again, given today's confrontational discourse on the Internet and in politics, do we really care about giving offense? Or has that value gone the way of curtsies and tipping hats?
"As a general culture, I think we care about offending certain people," said Karmit Bulman, executive director of the Conflict Resolution Center in Minneapolis. "We are still very much a power-based society. We care if we offend those in power. We don't care if we offend those who we see as irrelevant and invisible."
"You can look at this (Redskins case) as a trivial dispute, it's just a name," she said. "Or you can look at it as demonstrating how we still have huge clashes between people who we see as different than we are. And that our systems that we use to try to address those issues are really unsatisfactory."