Pro-Football Seeks Certiorari-Before-Judgment in REDSKINS Appeal

On April 25th, Pro-Football, Inc. filed a Petition for Writ of Certiorari Before Judgment (pdf here), in the REDKSINS case now pending before the U.S. Court of Appeals for the Fourth Circuit, asking the Supreme Court to consider immediately the issue of the constitutionality of Section 2(a)'s disparagement clause. Pro-Football argues that the Supreme Court should either deny certiorari in the SLANTS case, or consider the REDSKINS case in tandem with In re Tam.

According to Pro-Football, the REDSKINS case is an "essential and invaluable complement to Tam:

Assuming the Court grants review in Tam, this case is the paradigmatic candidate for certiorari before judgment because it is a necessary and ideal companion to Tam. The Court often has granted certiorari before judgment to consider complementary companion cases together, especially when the two cases raised important questions of constitutional law. Granting certiorari before judgment allows the Court to consider the question presented in a wider range of circumstances, resolve intertwined, equally important questions, and avoid piecemeal review. All of that is true here.

As in other cert-before-judgment cases, this case would allow the Court to consider Tam’s First Amendment question in the full range of circumstances, including both initial denials of registration and after-the-fact cancellations. The cancellation context here not only rounds out the scenarios in which § 2(a) applies, but also poses the gravest threat to free speech and is by far the most constitutionally suspect. Thus, even were the government to prevail in Tam, this Court’s decision likely would not govern the cancellation context.

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TTABlog comment: I hope the Supremes take both cases.

Text Copyright John L. Welch 2016.