HURRICANE, W.Va. (WBOY) — One of West Virginia’s contenders for governor wrote an op-ed defending Hurricane High School’s use of the “Redskins” moniker in response to a Charleston Gazette-Mail opinion piece calling for a mascot change.

While the original piece, written by Elliot Namay, argues the term is “obviously racist,” and that it should be changed, current Secretary of State and Republican Primary candidate Mac Warner has a different take.

“I felt it important to present the facts and statistics as to why such rhetoric to cancel Native Americans from history is not only racist, but dangerous,” Warner opened.

Warner argues, “The term ‘Redskins’ is a reference to the elite Indian warriors who would paint themselves in red paint in preparation for death prior to going into battle. The truthfulness of this fact won out in State and Federal Court when the Supreme Court of the United States ruled that the term ‘Redskins’ is not a derogatory term.”

Namay mentioned the history of the term but argued that history doesn’t mean it isn’t considered derogatory.

“But, this tired argument conveniently ignores the pejoration of the word through the 18th to 20th centuries, and the use of the word ‘redskins’ as a quantifier of scalps when collecting the bounty on murdered members of the original inhabitants of this land,” Namay’s piece said.

Warner also mentioned a 2016 Washington Post poll that found nine in 10 Native Americans didn’t find the Washington Redskins’ name offensive. The survey included 504 people, and The Post said it showed perception was unchanged from a 2004 poll by the Annenberg Public Policy Center that found a similar result.

A UC Berkeley study found different results. It surveyed more than 1,000 Native Americans and found that more than half were offended and that respondents who strongly identify with being Native American or frequently engage in tribal cultural practices were more likely to be offended.

As Warner mentioned, a case involving the “Washington Redskins” name did make it to the Supreme Court in 2016, Pro Football Inc. v. Blackhorse, which argued that the then-team name violated the Lanham Act, which allows trademarks to be denied if they “disparage * * * persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The case was brought forward by a group of five different Native Americans who were originally petitioning the United States Patent and Trademark Office (PTO) to cancel the federal registrations of six trademarks that contained the word “Redskin” and argued that because of the Lanham Act, those trademarks never should have been registered in the first place.

The Trademark Trial and Appeal Board did originally grant a petition to cancel the trademarks, pending judicial review after “the Board explained that petitioner’s marks refer to Native Americans, id. at 113a, 162a, 173a-174a, and it concluded, based on the record evidence (consisting of expert testimony, exhibits, reports, dictionary definitions, and other materials), that the marks were disparaging to a substantial composite of such people at the time of registration.”

Pro Football Inc. v. Blackhorse wasn’t granted a writ of certiorari because the court decided to take up a similar case, Matal v. Tam, which addressed the issue of an Asian-American band called “The Slants”—a term of disparagement it was re-appropriating.

That 8-0 decision ruled in favor of the band’s trademark, saying, in part “These marks make up part of the expression of everyday life, as with the names of entertainment groups, broadcast networks, designer clothing, newspapers, automobiles, candy bars, toys, and so on. […] To permit viewpoint discrimination in this context is to permit Government censorship.”

While the court didn’t necessarily rule on the offensiveness of the terms involved in the cases, it did rule on the government’s ability to cancel the trademarks on such grounds.

Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive. For reasons like these, the Court’s cases have long prohibited the government from justifying a First Amendment burden by pointing to the offensiveness of the speech to be suppressed.

Matal v. Tam decision

While Namay argues that changing the name is a matter of empathy, Warner argues “you can’t cancel history.”

This isn’t the first time that Hurricane’s team name has drawn attention. Back in 2020, a petition was started calling to change the name. It gathered more than 4,500 signatures.

Click here to read Namay’s op-ed and click here to read Warner’s.