Government speech, Chief Wahoo, Matal v. Tam
Close your eyes and imagine yourself driving to a concert. On the way, you pass a car bearing a license plate with the image of a Confederate flag. You pause, and ask . . . Did the state approve that license plate? Does the state endorse the use of the Confederate flag? You keep driving. Eventually you reach the concert and walk in. To your surprise, an Asian- American band named “The Slants” is opening. You pause, and ask . . . I thought the government approves trademarks? Does the Patent and Trademark Office endorse derogatory slurs? These questions strike at the heart of government speech—a doctrine which allows the government to speak as it pleases. Why is a license plate government speech, but a trademark not? On what basis can a court distinguish between the two? Given that government speech occurs outside of First Amendment protections, the answer has profound implications. And that answer may come from left field. The Cleveland Indians’ controversial logo, Chief Wahoo, provides the perfect context for explaining why a license plate is government speech while a band’s trademark is not. Before the publication of this Note, the Indians announced that, starting in 2019, they would remove Chief Wahoo from their jerseys. Even though the removal is a step forward in respecting indigenous communities, Chief Wahoo will continue to appear on team merchandise and will remain on the team’s jerseys for the 2018 season. This Note examines how Chief Wahoo’s appearance in the publicly-owned Progressive Field may constitute government speech. To do so, this Note introduces basic principles for reconceptualizing government speech after Matal—understanding government speech as a subset of state action and thus applying state action tests to discern the line between government speech and private speech.
Robert H. Hendricks, Don't Take Me out to That Ballpark: State Action, Government Speech, and Chief Wahoo after Matal, 103 Cornell L. Rev. 1589
Available at: https://scholarship.law.cornell.edu/clr/vol103/iss6/9