The New Hampshire State Board of Education recently originated a resolution banning the use of ôIndianö mascots within public schools. In the resolution, the Board stated, ôno matter how well or meaning their intentions, their actions may be offensive and harmful to some and therefore, need to be eliminatedö (New, 2004, 1). Temporarily leaving aside the First Amendment which protects the right of offensive speech to be expressed, the idea of offensiveness is wrongly applied by the BoardÆs decision. School mascots are usually a symbol of school pride, like the famous Georgia Bulldogs or the Florida Gators. They symbolize pride, achievement, and athletic prowess, not anything derogatory in the typical sense of the word.
Michelle B. Lee (1997) agrees that controversy over school mascots is part of the overly restrictive nature of ôpolitical correctnessö (1). With respect to the rule of law, Section 2 of the Lanham Act allows for cancellation of trademarks that are ôoffensive,ö ôscandalous,ö and ôdisparagingö (Lee, 1997, 1). However, allowing such an imposition on the naming of teams is, according to Lee (1997) a violation of both the First and Fifth Amendments. Trademark is a form of commercial speech and, as such, is protected under First Amendment law as ruled in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York (447 U.S. 557, 1980), (Lee, 1997).
The restriction on team names is also a potential violation of the Fifth Amendment, with respect to a trademark being recognizes as a property right. As Lee (1997) asserts, ôThis taking is a æregulatory takingÆ and results in the loss of economic viability for a given mark. Such a taking could be justified only if there was a ælegitimateÆ state purpose in protecting the public from harmö (Lee, 1997, 1-2). In many cases school mascots with Indian names stem from a rich Native American heritage in the schoolÆs region or as a sour...