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Could Pro-Football v. Blackhorse Be a Knock-Out Punch to Trademark Law?

Now is an exciting time, because political correctness and trademark law are clashing like never before.  Two cases involving starkly different facts have recently petitioned for writ of certiorari to U.S. Supreme Court, which ask whether Section 2(a) of the Lanham Act violates the First Amendment.  The cases are Lee v. Tam[1] and Pro-Football v. Blackhorse.[2]  While both cases have unique subplots, this paper focuses on Blackhorse, since Blackhorse has the potential to change the landscape of trademark registrations.

In Blackhorse the E.D. of Virginia upheld the Trademark Trial and Appeal Board (“TTAB”) of the United States Patent and Trademark Office’s (“PTO”) decision to cancel six of the Washington Redskins’ famous trademarks.[3]  Blackhorse held that the Redskins’ trademarks “bring Native Americans into ‘contempt and disrepute,’” thus are disparaging under Section 2(a) of the Lanham Act.[4]  The court reasoned that this scarcely used provision is constitutional, because trademarks can be regulated as governmental speech[5] under the newly articulated test in Walker v. Tex. Div., Sons of Confederate Veterans, Inc.[6] 

By extending Walker, Blackhorse brings trademark law into a new era.[7]  Trademark law is now being used as leverage in civil rights disputes where the Equal Protection and Due Process Clauses are inappropriate or unpersuasive.[8]  This is unprecedented.  The question remains unanswered whether Blackhorse will issue a Mike Tyson-sized bite or a Sugar Ray Robinson-caliber punch to trademark law.  While Blackhorse certainly reached the correct result under the specific factual scenario, its broad holding sets dangerous precedent and will provide the PTO with much more power to control “governmental speech” than contemplated by the First Amendment.  Thus, a majority of trademarks could be cancelled or denied as offending some composite of the American public.[9]  This runs counter to the familiar and longstanding jurisprudential understanding that trademark law is intended to help facilitate—not unduly burden—interstate commerce.[10]

Factual Background: The Redskins’ Trademarks Have a Long, Onerous History

The National Football League first endorsed the “Redskins” trade name in 1933 when the Boston team joined the league.[11]  Four years later, the team relocated to Washington D.C.  The PTO first registered the Washington Redskins’ trademark in 1967.[12]  Thereafter, the PTO renewed the trademarks in 1974, 1978, and 1990.[13]  Since inception, the Redskins trade name has been a source of controversy in Native American and national communities.[14]  Many individuals and groups have published opinions stating that the team name is a harmful form of ethnic stereotyping that promotes misunderstanding and prejudice, which contribute to other problems faced by Native Americans.[15] 

Procedural and Substantive History: Blackhorse is the PTO’s Second Jab At the Redskins’ Trademarks because First Jab Left Pro-Football Unfazed

As a result of the perceived injustice, Amanda Blackhorse and four other concerned citizens filed a petitioned to the TTAB on August 11, 2006.[16]  The petition requested that the PTO cancel the Redskins’ trademark registrations.[17]  But Blackhorse filed the petition when another case regarding the validity of the Redskins’ trademarks was pending in the District Court of D.C.[18]  Therefore, the TTAB suspended Blackhorse until Harjo concluded in 2009.[19] 

The decade-long litigation of Harjo followed from the TTAB’s 1999 decision to cancel the Redskins’ trademarks.[20]  Therein, the TTAB accepted the Harjo’s contention that the Redskins’ trademarks violated Section 2(a) of the Lanham Act:

[T]he word “redskin(s)” . . . “was and is a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation for a Native American person” and [Pro-Football’s] use of the marks . . . “offends” petitioners and other Native Americans, therefore, under Section 2(a) of the Trademark Act, 15 U.S.C. 1052(a), the identified registrations should be canceled.[21]

When Pro-Football appealed this decision to the D.C. Circuit,[22] the court narrowed the legal issue to whether the trademark was disparaging or scandalous when the mark was first registered in 1967.[23]  The court held that the record evidence did not support a finding of disparagement at any time between 1967 and 1990,[24] and that Pro-Football successfully asserted a Section 2(a) disparagement-cancellation laches defense.[25] 

Once the D.C. Circuit procedurally disposed of the TTAB’s first decision to cancel the Redskins’ trademarks, the TTAB revisited Blackhorse.[26]  The TTAB found that Redskins’ trademarks carry with them, a meaning that “may have disparaged”[27] a substantial composite of the Native American population, “which need not be a majority.”[28] As a result, on June 18, 2014, the TTAB scheduled the cancellation of six Redskins’ trademark registrations.[29]  TTAB relied on two evidentiary grounds for the substantial composite disparagement finding.[30]  First, the court found that “record establishes that, at a minimum, approximately thirty percent of Native Americans found the term REDSKINS used in connection with respondent’s services to be disparaging at all times including 1967, 1972, 1974, 1978 and 1990.”[31]  These data were based on U.S. Census Bureau studies, which surveyed Native American populations’ views of the term.[32]  Second, the TTAB corroborated the U.S. Census Bureau studies with a “trend in dictionary usage labels” during the registration periods whereby lexicographers described the term as offensive.[33]  To discount Pro-Football’s counterargument that the term Redskins is perceived differently by the sport’s target audience, the TTAB noted: “once a substantial composite has been found, the mere existence of differing opinions cannot change the conclusion.”[34]

Next, the TTAB found that the Redskins tradename causes “contempt or disrepute” because Redskins carries a longstanding history as racial epithets.[35]  The TTAB rejected Pro-Football’s argument that “the name ‘Redskins,’ when used in association with professional football . . . denotes only the team and connotes the history and tradition of the Club.”[36]  In response, the court noted that “this is not a case where, through usage, the word ‘redskin(s)’ has lost its meaning, in the field of professional football.” [37]  Instead, when considered in relation to the company’s services and trademark illustrations, “’Redskins’ clearly both refers to respondent's professional football team and carries the allusion to Native Americans inherent in the original definition of that word.”[38]  However, the TTAB did not address Pro-Football’s constitutional arguments in order to preserve the issue for appeal.[39] 

Almost immediately, Pro-Football appealed the TTAB’s decision to the E.D. of Virginia by contending that “the TTAB’s decision was replete with errors.”[40]  Of Pro-Football’s seven causes of action,[41] the District Court reviewed two narrow issues.  The first issue turned on whether “Section 2(a) of the Lanham Act violates the First Amendment by restricting protected speech, imposing burdens on trademark holders, and conditioning access to federal benefits on restrictions of trademark owners’ speech.”[42]  Second, the court examined whether record establishes by the preponderance of the evidence that “a substantial composite of Native Americans believe that the Redskins Marks consisted of matter ‘may disparage’ them at the time of their registrations (1967, 1974, 1978, and 1990).”[43]

District Court’s Decision: Trademark Registrations Constitute   Governmental Speech And the PTO Does Not Support Vile Racial Epithets

After a detailed recap of the tradename’s history, and the Harjo litigations leading up to the case, the court examined the threshold issue of whether the TTAB was cancelling the Redskins’ trademarks or merely the trademark registrations.[44]  In framing this issue the court concluded: 

Just as Allen Iverson once reminded the media that they were wasting time at the end of the Philadelphia 76ers’ season “talking about practice ” and not an actual professional basketball game, the Court is similarly compelled to highlight what is at issue in this case—trademark registration, not the trademarks themselves. It is the registrations of the Redskins Marks that were scheduled for cancellation by the TTAB’s decision, not the trademarks.[45]

Drawing this distinction is significant to the court’s decision because trademarks themselves are a property interest outside the domain of Federal law, including the Lanham Act.[46]  Section 2(a) of the Lanham Act is only relevant to the PTO’s registration process.[47]  In order to have jurisdiction, the court needed to implicate the Constitution, which it correctly did.[48]

  1. PTO’s trademark registration program is outside First Amendment scrutiny because it is a form of governmental speech

Once the court properly framed the issue, it examined the constitutionality of Section 2(a).  For the constitutional issue, the court held that cancelling the trademarks could not be permitted under the Constitution—due to constitutional guarantees of intellectual property—but the PTO can cancel trademark registrations as expressions of governmental speech.[49]  PTO’s trademark registration program is not commercial speech, but governmental speech, because commercial speech is defined as “speech that does no more than propose a commercial transaction.”[50] To justify this finding, the court relied on the Supreme Court’s newly articulated Walker test.[51]  In Walker, the Supreme Court examined an issue where Texas created specialty driver’s license plates for any group or individual that applied to Texas Department of Motor Vehicles Board (“Board”) and paid a fee.[52]  Texas gave the Board discretion to refuse any design that “that might be offensive to any member of the public.”[53]  When the Sons of Confederate Veterans “applied to sponsor a specialty plate with a design that included a picture of the Confederate flag,”[54] the Board rejected the design because the flag was offensive.[55]  In defense of its decision, the Board reasoned “that a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”[56]  In reversing the Fifth Circuit’s determination that the license plate program was not a form of governmental speech, the Court noted that license plates “are[ ] essentially government IDs” and issuers of IDs “‘typically do not permit’ the placement on their IDs of ‘messages with which they do not wish to be associated.’”[57]  Because license plates are essential government IDs, Texas “maintains direct control over the messages conveyed on its specialty plates.”[58]  “This final approval authority allows Texas to choose how to present itself and its constituency.”[59]  

By analogizing the Texas license plate program to the PTO’s trademark registration program, Blackhorse held that once the PTO places an ® next to the trademark, it becomes governmental speech.[60]  As governmental speech, the trademark registration program “does not implicate First Amendment” scrutiny.[61]

But Blackhorse did not solely relying on Walker for the proposition that the PTO’s trademark registration classified as governmental speech;[62] perhaps in fear that appellate courts may narrowly interpret Walker, and perhaps because the court already had most of the decision written before the Supreme Court decided Walker.  Nevertheless, the court supported its governmental speech finding by relying on the Fourth Circuit’s mixed / hybrid speech test.[63]  Therein, hybrid speech test considers four factors: (1) “the central purpose of the program in which the speech in question occurs”; (2) “the degree of editorial control exercised by the government or private entities over the content of the speech”; (3) “the identity of the literal speaker”; and (4) “whether the government or the private entity bears the ultimate responsibility for the content of the speech[.]”[64]  Blackhorse surmised that all four factors were present in the PTO’s trademark registration program.[65]  First, the government has “long played a role in protecting trademarks.”[66]  The purpose of the trademark registration program is “not for the expression of private views or interests” but, instead, “to provide federal protection to trademarks.”[67] Second, the court analogized the Board’s editorial control in Walker to the PTO’s editorial control of trademark registrations.[68]  The court explained that “the PTO regularly rejects applications for registration on grounds enumerated in Section 2 of the Lanham Act.”[69]  Third, the court found that government is a literal speaker that literally publishes registered trademarks in the Official Gazette of the PTO.[70]  Finally, “[b]ecause the mark owners apply to avail themselves of the benefits of the federal trademark program and defend the registration of their marks in any subsequent litigation, the Court finds that the fourth factor weighs in favor of finding private speech.”[71]  Thus, the district court found that Section 2(a) was constitutional under the Fourth Circuit’s hybrid speech test in addition to Walker.

  1. Multiple lines of evidence prove more likely than not that Redskins’ trademarks “may disparage” a substantial composite of the Native American population

After finding that Section 2(a) was constitutional, because trademark registrations constitute governmental speech, the court examined the specific factual issue of Blackhorse.[72]  As previously mentioned, the PTO can deny or cancel trademarks which may disparage a substantial composite of the affected group.[73]  For the factual of whether the trademarks may disparage a substantial composite of the affected group, the district court adopted the TTAB’s argument and rational.[74]  The district court made no additional factual findings.[75]  Therein, the court reiterated the three evidentiary grounds for the “may disparage” finding.[76]  The evidence used includes dictionary definitions of the term Redskin, “scholarly, literary, and media references,” and individual witness testimony.[77]  This section of the opinion includes 15 pages of illustrations and graphics showing how Native Americans were depicted in the context of football during the years in which the trademarks were registered.[78]  Much of the court’s discussion on the “may disparage” finding, however, was probably unnecessary since Blackhorse only needed to show that it was more likely than not that a substantial number of Native Americans viewed the trademarks as disparaging.[79]  No intent is required.[80]  Therefore, once court found that Section 2(a) fell outside First Amendment scrutiny, the Section 2(a) test was easy to prove.[81] 

Critique of the Court’s Decision: Blackhorse Incorrectly Reasoned, but Reached the Correct Result.

Although the court correctly held that the Redskins trademarks “may disparage a substantial composite” [82] of the Native American community, Blackhorse sets dangerous precedent by baldly analyzing Pro-Football’s First Amendment claim.[83]  Herein, the court made a couple egregious errors, which resulted in a much too broad holding.[84]  Blackhorse’s extension of Walker to federal trademark law is unnecessary and unpersuasive.[85]  The Walker analysis is dicta since the Fourth Circuit’s hybrid speech test would nevertheless place the PTO’s speech outside the First Amendment.[86]  Additionally, Blackhorse went too far by boldly finding that “[t]he Free Speech clause does not regulate government speech, and government speech is exempt from First Amendment liability.”[87]  Recently decided Supreme Court cases have not made the governmental speech doctrine impermeable.[88]  Therefore, the court’s purported broad holding should be narrowed on appeal.    

The primary, and most obvious, criticism of Blackhorse is that the court’s reliance on Walker is inappropriate and unpersuasive.[89]  The court could have reached the same result—albeit much narrower holding—by solely relying on the Fourth Circuit’s well-established hybrid speech test.  Walker is easily distinguishable because the problem at issue in Blackhorse quite different from the specialty plate issue in WalkerWalker turned on the facts that: “ license plates ‘long have communicated messages from the States;’ Texas license plate designs ‘are often closely identified in the public mind with the State;’ and Texas maintains direct control over the messages conveyed on its specialty plates.”[90]  None of those specific factual circumstances were present in Blackhorse.[91]  First, the registration program has never communicated any particular message since, “the USPTO [registration program] does not endorse any particular product, service, mark, or registrant.”[92]  Also, although the ® next to the product may be identified with the PTO, a reasonable person would not misinterpret the trademark as conveying governmental speech—especially in light of the PTO’s policy that it does not endorse any of the registered products.[93]  Furthermore, unlike license plates, the PTO does not have direct control over the creation process of trademarks.[94]  Trademark registrations merely signal to the world that the trademark owner has exclusive right to use the mark that the owner created.[95]

Additionally, Blackhorse erroneously assumes that a finding of governmental speech automatically precludes First Amendment liability.[96]  A series of well-recognized cases, however, firmly suggest that governmental speech is not completely immune from constitutional violations.[97]  Governmental speech may be invalidated under the Free Speech Clause if “the government seeks to compel private persons to covey governmental speech.”[98]  For example, Wooley v. Maynard implicated the First Amendment because New Hampshire enjoined individuals from covering—presumably with tape—the message “Live Free or Die” on their license plates.[99]  The Supreme Court held that “where the government’s interest ‘is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual’s First Amendment right to avoid becoming the courier for such message.’”[100]  In so finding, the Court reasoned “the First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster an idea they find . . . objectionable.”[101]  Although the government can espouse its own policies through viewpoint-based governmental speech, the government may not “invade the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”[102]

Here, it does not appear that the government is compelling individuals to covey certain governmental messages, but it is certainly channeling the scope of messages that can be made.[103]  Only those trademarks that must be viewed as non-disparaging fall outside of Section 2(a)’s limitation.[104]  Although Section 2(a) is not completely banning the speech—as would be clear viewpoint discrimination—it discourages people from creating and using trademarks that espouse a point of view different from the majority.[105]  Therein, the Supreme Court has rejected certain programs that channel speech in favor of the majority.[106]  By discouraging trademarks that espouse ideologies different than the PTO’s policy, speech is chilled.[107]  This chilling effect is highlighted by the many benefits that individuals receive by having their trademark’s registered.[108]  Therefore, Blackhorse errored in its out-of-hand dismissal of any First Amendment challenges to the governmental speech doctrine. 


Despite the strong left cross that Blackhorse threw, valid reasons exist for believing that it was not a knock-out punch to trademark law as we know it.  Blackhorse left the Supreme Court a great amount of room to maneuver around the district court’s broad holding.  Although the court’s factual findings that the Redskins’ marks “may disparage” Native Americans should not be overruled, the Supreme Court should narrow the district court’s holding.  Plenty of issues exist in the threshold issue of whether the PTO’s registration program is completely outside of First Amendment liability.  Thus, the district court’s cursory glance at the Free Speech Clause does not do Pro-Football’s First Amendment challenge justice, since over 200 years of Supreme Court precedent has arguably valued First Amendment rights over any other constitutional protections.    

1. Brief for Petitioner at 1, Lee v. Tam, 785 F.3d 567 (Fed. Cir. 2015) (No. 15-1293) (petitioning for certiorari the Federal Circuit decision holding that the Patent Office unconstitutionally denied trademark registration of the Asian-American rock band name “The Slants”).

2. Brief for Petitioner at 1, Pro-Football v. Blackhorse, No. 14-1043, 2015 WL 4096277 at *1 (E.D. Va., July 8, 2015) (No. 15-1311) (Pro-Football petitioning for certiorari the E.D. Virginia decision denying renewal of the Washington Redskins trademarks).

3. No. 14-1043, 2015 WL 4096277 at *1 (E.D. Va., July 8, 2015).

4. Id. at *36; 15 U.S.C. 1052(a) (2015).

5. Blackhorse, 2015 WL 4096277 at *11-3.

6. 135 S.Ct. 2239, 2246 (2015).

7. See generally Blackhorse, 2015 WL 4096277.

8. See id.; In re Simon Shiao Tam, 785 F.3d 567, 568-69 (Fed. Cir. 2015).

9. See In re Simon Shiao Tam, 785 F.3d at 568 (the PTO denied trademark registrations to an Asian-American rock band called “The Slants” because the name could offend a substantial composite of the Asian community).  However, “Asian American activists have been using ‘slant’ to present a bold portrayal of [Asian] culture for decades.”  World Intell. Prop. Rev., Federal Circuit pulls the plug on ‘disparaging’ trademark application (Apr. 21, 2015),

10. See Taylor v. Carpenter, 23 Fed. Cas. 742, 744 (D. Mass. 1844).  An infinite list of currently registered trademarks could be cancelled.  See U.S.P.T.O., Trademark Elec. Search Sys. (last visited Oct., 7, 2015), (complete list of federally registered trademarks).

11. Blackhorse, 2015 WL 4096277 at *2. 

12. Id. 

13. Id. at *2-3.

14. See Walker, 135 S.Ct. at 2262 (Alito, J., dissenting) (recognizing “Redskins” as a controversial name).

15. A.P.A., Legislative efforts to eliminate native-themed mascots, nicknames, and logos: Slow but steady process post-APA resolution (Aug. 2010),  

16. Blackhorse compl. at *1 (Blackhorse v. Pro-Football, 111 U.S.P.Q.2d 1080 (Trademark Tr. & App. Bd. 2014) (No. 92046185).

17. Blackhorse, 111 U.S.P.Q.2d at *34.

18. See Pro-Football, Inc. v. Harjo, 565 F.3d 880, 881 (D.C. Cir. 2009); Pro-Football, Inc. v. Harjo, 567 F. Supp. 2d 46, 47 (D. D.C. 2008).

19. Blackhorse, 2015 WL 4096277 at *4.

20. Harjo v. Pro-Football, Inc., 50 111 U.S.P.Q.2d 1705 at *48 (Trademark Tr. & App. Bd. 1999) (No. 21069).

21. Id. at *2. 

22. Pro-Football, Inc. v. Harjo, 284 F. Supp.2d 96, 99 (D. D.C. 2003).

23. Id. at 105.

24. Id. at 135-36.

25. Id. at 139, 144.

26. Blackhorse, 111 U.S.P.Q.2d at *1.

27. Id. at *28.

28. Id. (citing In re Heeb Media LLC, 89 U.S.P.Q.2d 1071 at *5 (Trademark Tr. & App. Bd. 2008); cf. Ritchie v. Simpson, 170 F.3d 1092, 1094 (Fed. Cir. 1999) (“Whether a mark comprises immoral and scandalous matter is to be ascertained in the context of contemporary attitudes, and the relevant viewpoint is not necessarily that of a majority of the general public, but of a ‘substantial composite.”’) (quoting In re Mavety Media Group Ltd., 33 F.3d 1367, 1371 (Fed. Cir. 1994)).

29. Blackhorse, 111 U.S.P.Q.2d at *1-3.

30. Id. at *29

31. Id. (emphasis in original).

32. Id. at nn.144, 204, 215 (citing Campbell Gibson & Kay Jung, Historical Census Statistics on Population Totals By Race).

33. Id. at *29.

34. Id.

35. Blackhorse, 111 U.S.P.Q.2d at *8.

36. Pro-Football compl. at *20, ¶ 71 (Blackhorse, 2015 WL 4096277 at *8-9).

37. Blackhorse, 111 U.S.P.Q.2d at *9.

38. Id.

39. Id. at *1 n.1.

40. Pro-Football compl. at *1, ¶ 1 (Blackhorse, 2015 WL 4096277 at *1).

41. See id. Pro-Football raised seven causes of action: (1) the Redskins’ trademarks “do not . . . disparage Native Americans in violation of Section 2(a) of the Lanham Act,” id. at *32 ¶ 131; (2) the Redskins’ trademarks “do not . . . bring Native Americans into contempt or disrepute in violation of Section 2(a) of the Lanham Act,” id. at *32 ¶ 133; (3) Section 2(a) of the Lanham Act Violates the First Amendment because it is “a content-based restriction on speech” and facially overbroad, id. at *32 ¶ 135-36; (4) Section 2(a) of the Lanham Act is void for vagueness, id. at *32 ¶ 139; (5) the TTAB’s cancellation of the Redskins’ trademarks violates Due Process Clause of the Fifth Amendment, id. at *33 ¶ 141; (6) the TTAB’s cancellation of the Redskins’ trademarks violates Takings Clause of the Fifth Amendment, id. at *33 ¶ 146; and (7) Blackhorse was barred from bringing the claim to the TTAB by the doctrine of laches. Id. at *34 ¶ 148.

42. Blackhorse, 2015 WL 4096277 at *1.

43. Id.

44. Id. at *6-7.

45. Id. at *6.

46. Id. at *7 (citing In re Trade-Mark Cases, 100 U.S. 82, 92 (1872).

47. See 15 U.S.C. 1052(a) (2015). See generally Hanover Star Milling Co. v. Metcalf, 240 U.S. 403 (1916) (explaining the scope of trademark law).

48. See Blackhorse, 2015 WL 4096277 at *6-7.

49. Id. at *8.

50. Id. at *11 (quoting Harris v. Quinn, 134 S.Ct. 2618, 2639 (2014)).

51. Id. at *11-3.

52. Walker, 135 S.Ct. at 2243.

53. Tex. Transp. Code Ann. § 504.801(c) (West 2013) (emphasis added).

54. Blackhorse, 2015 WL 4096277 at *11. 

55. Walker, 135 S.Ct. at 2245.

56. Id.

57. Id. at 2249 (quoting Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 471 (2009)).

58. Id.

59. Id.

60. Blackhorse, 2015 WL 4096277 at *19.

61. Id. at * 1, 11-4.

62. See id. at *10-6.

63. Id. at *13-4. See Sons of Confederate Veterans, Inc. ex rel. Griffin v. Comm’r of Virginia Dep’t of Motor Vehicles, 288 F.3d 610, 616 (4th Cir. 2002).

64. Blackhorse, 2015 WL 4096277 at *13.

65. Id. at *13-5.

66. Id. at *13. 

67. Id. at *14.

68. Id. (citing Sons of Confederate Veterans, Inc. ex rel. Griffin, 288 F.3d at 620-21).

69. Id.

70. Blackhorse, 2015 WL 4096277 at *14.

71. Id. at *15.

72. Id. at *22-38.  

73. Id. at *24.

74. See id. at *23-6.  

75. See id. at *20-38.  

76. Blackhorse, 2015 WL 4096277 at *23.

77. See id. at *23-6.   

78. See id. at *22-37.

79. See id. at *21.

80. See id.

81. See id.

82. See 15 U.S.C. 1052(a) (2015).

83. See Blackhorse, 2015 WL 4096277 at *1.

84. See id.

85. See id. at *11-3.

86. See Sons of Confederate Veterans, Inc. ex rel. Griffin, 288 F.3d at 616.

87. Blackhorse, 2015 WL 4096277 at *18.

88. See Walker, 135 S.Ct. at 2246; Summum, 550 U.S. at 460.

89. See Blackhorse, 2015 WL 4096277 at *11-3.

90.  Rideout v. Gardner, No. 14-cv-489-PB, 2015 WL 4743731 at *10 (D. N.H., Aug. 11, 2015) (quoting Walker, 135 S.Ct. at 2248-49).

91. See Blackhorse, 2015 WL 4096277 at *1-40.

92. Rideout, 2015 WL 4743731 at *10. (declining to extend Walker by interpreting the holding narrowly).

93. See id.   

94. See id.

95. See id.

96. See id. at *9-18.

97. See Walker, 135 S.Ct. at 2246; Summum, 550 U.S. at 460.

98. Summum, 550 U.S. at 460.

99. 430 U.S. 705, 707 (1977).

100. Id. at 717.

101. Id. at 715.

102. Id. (quoting Minersville District v. Gobitis, 310 U.S. 586, 596 (1940)).

103. See Blackhorse, 2015 WL 4096277 at *13-9.

104. See 15 U.S.C. 1052(a) (2015).

105. See Wooley, 430 U.S. at 717.

106. See United States v. United Foods, Inc., 533 U.S. 405, 405 (2001) (“First Amendment values are at serious risk if the government can [channel] speech to the side that it favors; and there is no apparent principle distinguishing out of hand minor debates about whether a branded mushroom is better than just any mushroom. Thus, the compelled funding [for certain mushrooms but not others] must pass First Amendment scrutiny.”).

107. See id. at 410.

108. See id.

© Michael James NovotnyNational Law Review, Volume VI, Number 193

About this Author

Michael Novotny, Law Student, SMU Dedman School of Law, Dallas
Law Student

Michael Novotny is a 4E at SMU Dedman School of Law in Dallas.  Michael has focused his entire law school and pre-law school work experience to serving Native American communities, and he plans to continue that passion after graduation.  Before law school, Michael worked as an archaeologist in the American Southwest for nearly a decade.  During law school, Michael has worked at multiple Department of Justice divisions, and at a private law firm that focuses on American Indian Law.  He is also a Squire Patton Boggs Fellow in Public Policy, where he worked at Navajo Nation...