By Rich Lowry
Tuesday, June 20, 2017
With the Left feverishly attempting to squash unwelcome
speech on college campuses, with the president of the United States musing
about tightening libel laws, with prominent liberals asserting that so-called
hate speech is not protected by the First Amendment, free speech in America at
least has one reliable friend — the Supreme Court of the United States.
In a firm 8-0 decision, the court slapped down the Patent
and Trademark Office for denying a band federal trademark registration for the
name “The Slants,” a derogatory term for Asian-Americans. The case involves a
very small corner of federal law, but implicates the broader logic of political
correctness, which is that speech should be silenced for the greater good if
there is a chance that someone, somewhere might be offended by it.
As it happens, The Slants is an Asian-American band that
seeks to “reclaim” and “take ownership” of anti-Asian stereotypes (it has
released albums called The Yellow Album
and Slanted Eyes, Slanted Hearts).
This didn’t matter to the trademark office any more than it presumably would to
the dean of students at the average liberal-arts college. The Slants appealed
the initial rejection to the trademark office, got rebuffed again and then
rightly made a federal case of it.
The litigation hinged on a provision of federal trademark
law referred to as the “disparagement clause.” This clause forbids registration
for any trademark “which may disparage … persons, living or dead, institutions,
beliefs, or national symbols, or bring them into contempt or disrepute.” Taken
literally, this provision would forbid the disparagement of the KKK, an
institution; or Benito Mussolini, a person who is dead; or Vladimir Putin, a
person who is living.
The trademark office interprets the clause with all the
wisdom you’d expect of a federal bureaucracy. As the trademark office’s manual
puts it, an examiner determines whether or not the mark would be found
disparaging by a “substantial composite, although not necessarily a majority,
of the referenced group.” So, merely a plurality of the offended will do, and
common sense is no defense: “The fact that an applicant may be a member of that
group or has good intentions underlying its use of a term does not obviate the
fact that a substantial composite of the referenced group would find the term
objectionable.”
This is classic safe-space reasoning — the harm that
would allegedly befall some portion of a group from encountering an offending
trademark should trump the free-speech rights of the likes of The Slants. The court utterly rejected this
posture, deeming it inimical to a free society and untenable under the U.S.
Constitution.
In a passage that should be pasted into the student
handbook of every college and read aloud by progressives who have convinced
themselves that hate speech is not free speech, the court held, “Speech that
demeans on the basis of race, ethnicity, gender, religion, age, disability, or
any other similar ground is hateful; but the proudest boast of our free speech
jurisprudence is that we protect the freedom to express ‘the thought that we
hate.’”
As the court’s concurring opinion noted, basing the
trademark prohibition on the presumed reactions of an offended group doesn’t
help — “a speech burden based on audience reactions is simply government
hostility and intervention in a different guise.”
The practices of the Patent and Trademark Office
obviously aren’t the most significant grounds for contention over speech. But
the disparagement clause was the wedge that activists were trying to use to
force the Washington Redskins to change the NFL team’s name (the team has been
fighting the cancellation of its trademark in court). And every effort by the
speech police to spread their operations from college campuses to the wider
society must be resisted.
In this case, they came for a self-described “Chinatown
Dance Rock” band with a cheeky name, and the Supreme Court said, Sorry, not in
America.
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