Here is “Racial Slurs Shouldn’t Be Trademarked:The Washington football team’s name is an obstacle for interstate commerce,” by Robert Tsai and Christine Haight Farley.
But one argument the DOJ makes only tepidly deserves far greater emphasis: In regulating commerce, Congress has the power—and perhaps even an obligation—to confront pervasive forms of inequality. As the DOJ explains, trademark law “prevents a mistaken perception of official endorsement of insult and calumny.” Yet the power to deny state approval goes further than that: It implicates the very idea of democratic self-governance. Disparaging marks can foster corrosive cultural stereotypes on the basis of race, religion, sex, or sexual orientation. Left entirely unregulated, the market would become the engine for perpetuating, and even entrenching, illiberal values.