Nick Wass, File, Associated Press
Something is happening just beneath the fight over the name of a certain Washington, D.C., pro football team: America is working through the process of determining what is — or is not — racially offensive.
What is a slur, and who gets to decide? How many people must be offended to tip the scales? Why should some be forced to sacrifice their traditions out of respect for others?
We are a long way from consensus on these questions, judging by the response to a federal ruling that the "Redskins" team name is disparaging and its trademarks should be canceled.
The team is appealing the decision, and even if it loses its trademark, it can still use the name. But this latest development highlights the limitations of how America wrestles with certain racial statements, and our struggle to balance free speech and social good.
A rapidly diversifying nation has more need than ever to figure out what is racially offensive.
Some offenses are undeniable: NBA owner Donald Sterling earned universal condemnation for asking his mistress not to bring black people to his games.
Yet in an era of blunt and sometimes coarse online discussion and political debate, Americans continue to disagree about the nature of calling Hispanics who cross the border without documents "illegals," or the propriety of images that depict President Barack Obama as a "witch doctor."
And it took years of discussion to win makeovers for Aunt Jemima and Uncle Ben, the stereotypical black faces used to sell syrup and rice.
Jim McCarthy, a lawyer who followed the Redskins trademark case, said he is not offended by the name, but "there's no denying the fact that a certain percentage of Native Americans are offended. We don't know if it's a minority, a majority, but it's a fact."
"If we want to be the best version of ourselves in our society, do we want to promote that, or do we want to minimize that?" he asked.
"I'd love it to be different where people just cooperate to effect change," he said. "But we're a very adversarial society."
Michael Lindsay, who was lead attorney for Indians in a prior trademark case, said there are two ways to determine if something is offensive.
"The first is the legal path. The other is out in the real world. The legal test, it seems to me, actually does have something to teach the real world," said Lindsay, of the Dorsey and Whitney firm in Minneapolis.
Here is what the Trademark Trial and Appeal Board, ruling Wednesday in a case first filed more than 20 years ago, tried to show the real world:
— What matters is if "Redskins" is disparaging to Native Americans — whether other ethnic groups are offended doesn't matter.
— A "substantial" percentage of Native Americans must be offended — not a majority. The judges defined that threshold at 30 percent.
— A disparaging term does not require intent: "Redskins" can still be disparaging even if the team says it is intended to show honor and respect.
Based on testimony from linguistics and lexicography experts, and a review of how the term was used in dictionaries, books, newspapers, magazines and movies, the board ruled 2-1 that the term was disparaging to Native Americans.
The dissenting opinion was not a ringing endorsement of the term: "I am not suggesting that the term "redskins" was not disparaging ... Rather, my conclusion is that the evidence petitioners put forth fails to show that it was," the judge wrote.
All of which left Paul Calobrisi, co-founder of www.savethewashingtonredskins.com, quite unsatisfied. In his opinion, there's a simple way to determine whether something is a slur: The majority rules.
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