Trademarked Hate Speech

I was overjoyed to see that the Asian-American band called “The Slants” has heard from a unanimous Supreme Court that their band name is legal. They had been denied the right to use their band name based on a trademark law called the Lanham Act. It was a part of the Lanham Act that the Supremes said was unconstitutional.

the slants 2

That part of the Lanham Act banned any trademarks that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” I note the similarity between this and many so-called “hate speech” laws in place in most European and other repressive regimes. Those governments would like to control what their citizens think, and they do that in part by regulating what they can say.

I certainly hope that this unanimous Supreme Court ruling will make the position of so-called “hate speech” in American law very clear. Here’s the TL;DR version:

In the USA, there is no such thing as “hate speech”.

Here, “hate speech” doesn’t exist. You can say the most hateful things that you want to say, put them on a poster, write them in capital letters on your blog, skywrite them above the city. It’s this crazy thing called “Freedom Of Speech”.

Most folks don’t realize that in Europe, the totalitarian repression of people’s speech is widespread. As one example among many, recently a 70-year-old Swedish pensioner looked out of her window and was horrified to see Islamic immigrants torching cars and defecating in the street. So she posted her observations on Facebook … big mistake. She was arrested and is being prosecuted for “hate speech” because she was disparaging the poor immigrants …

In Sweden, “hate speech” is defined as “publicly making statements that threaten or express disrespect for an ethnic group or similar group regarding their race, skin colour, national or ethnic origin, faith, or sexual orientation.” Funny how much that sounds like the now-discredited Lanham Act …

The Swedes’ cockamamie law says you can’t “express disrespect” for a group? Get real! If Sweden were to apply that uniformly, they would arrest every Imam. The Koran either threatens women or expresses disrespect for women on almost every page … but somehow, in Sweden and the rest of Europe, that’s not hate speech.

These European “hate speech” laws are being used in a very selective manner against anyone that the state wants to attack. Geert Wilders and Marine Le Pen have both faced “hate speech” prosecutions.  Meanwhile, virulent Islamists are allowed to say whatever they wish. It is that totalitarian selective application of the “hate crime” laws which lead me to say above that these are typical of “European and other repressive regimes”. Those kind of “Thought Police” laws are indeed Orwellian.

the slants 1

You can say what you will about America … but at least we can say what we will.

w.

PS—I still hold that as long as such totalitarian “hate speech” laws exist, that Europeans should agitate for them to be applied to people advocating the ideas of the Koran. See my post here

PPS—My previous posts on freedom of speech are here, and posts on Islam are here.

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22 thoughts on “Trademarked Hate Speech

  1. Great post! I was thrilled to read about this case and it will be central to my unit on the First Amendment in the new course I’m designing on the Bill of Rights. I’m a lawyer (15 years practicing business law in Silicon Valley) and a teacher at a high end private high school in Silicon Valley. The “hate speech” prohibitions have now extended to include the amorphous concept of “microaggressions”. We have been ordered to “check our white privilege”, change posters in our rooms if they could possibly offend some group, and learn how to avoid “unsafe” discussions. Students are taught to seek out a person in authority if they’ve been offended by someone’s words so they can feel “safe” again. The newest wrinkle is gender. Did you know there are approximately 60 of them? Each one has its own pronoun too. We’re soon to be expected to memorize each student’s correct pronoun. Kinda difficult because gender is “fluid” and can change hour to hour. I learned that this year. Fun stuff.

    Enough said. This will be my last year of teaching. This is craziness.

    Liked by 1 person

      • Willis
        Thank you for putting this statement ‘out there”. There are too few doing this today. I am an old fart, so I am to be ignored. With experience in many parts of the world, including your own territory, I enjoy your responses to the BS of the ‘elites’.

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    • Until very recently, I taught physics at a good university that focused on STEM in New York. Despite the focus on hard sciences, political correctness was clearly taking over. During one faculty meeting, I was told that if two males where overheard to call each other a “pansy”, that it was borderline sexual harassment. I was supposed to intervene to tell them to stop, but if it continued, then I should report them for Title IX violation.

      At another meeting, we were told by a lawyer, that if any student takes offense to anything we say, then we could end up under investigation and fighting for our jobs. This includes someone who misunderstands a what we says, or if someone overhears a conversation between two other people and is offended by something lacking context. If we are then under investigation, we are then not allowed to know the details of the allegation during the investigation.

      I attended a group that discussed better teaching methods. During one of these meetings, I was told by an education researcher that talking to a POC (person of color) the same way I talk to a white person is actually bad. For example: because there are often only a couple of POC in the class, they believe that I should immediately know their name, but if I forget their name, they will assume I’m racist. Therefore I must make an effort to memorize POC names first.

      Of course, during this time, New York passed the “yes means yes” law (for campuses only) that says that affirmative consent is required for every type of sexual encounter, including such things as touching, hugging, and kissing. So, every day when my wife dropped me off in the parking lot on campus, and I kissed her goodbye without asking, I was committing sexual assault as defined under the law.

      I enjoy teaching, but I just cannot deal with this.

      Liked by 1 person

  2. I am over whelmed. What I say is not what is allowed. I guess, I am relegated to the dungeon of thought control where I do have time to think of what I want to think, only, I am not allowed to say what I think.

    You say this is Sweden? Hmm. Time to acknowledge how glad I am to be in America.

    Liked by 1 person

  3. It is funny, in the early 1980’s I knew several men from various European countries while in US Army, and each of them said, essentially, “You can’t say that, it is not allowed.” and I would ask “Why not?” and they would respond “Authorities do not allow it!”. Three of them simply refused to believe the 1st Amendment actually meant what it actually said, the others got this awed expression. Pretty sure all of them are US citizens today, I know one is because I have corresponded with him over the years and he is saddened and frightened by what he sees going on in America. He grew up in East Germany, defected to Germany and I met him while he was going through courses at the Artillery School at Ft Sill. Point of this? Speech laws lead to thought laws. Gunier grew about in a “society” where it had already happened and 35 years ago he warned me it would come to America, eventually. We are fighting against it, and we have to KEEP fighting against it.

    Liked by 1 person

  4. I have always had trouble with those initials when applied to speech. You no – PC. I know it is supposed to mean politically correct, but I have always assumed it meant pre-communist. I look at the way it and the party that supported it – as in PC – has evolved, and I think I was right.

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  5. I’m about your age Willis, and I find myself just shaking my head at the current attempts to “sanitize” ordinary speech.
    To the frequent annoyance of my missus, I often inject politically incorrect but funny quips into a conversation just to watch people struggle with being amused or feigning offence.
    I’m really starting to enjoy playing the “crazy old uncle” though. There have to be some perks to trade off against rampant ageism.

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    • Wonderful…we should all be “crazy old uncles” to bring the PC brigade back to earth with a thud now and then!

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    • In that case I am older than both of you. Keep it up; I piss off my wife being the ;crazy old uncle’ but no one can argue with my experience in many countries. Give ’em shit.

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  6. I hope the “The Slants” develop a following and make a bundle of bucks because of this . . . and that they are able to continue to annoy the fool(s) that tried to take their name away.

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    • Me and Boy looked them up on his phone and they are OK, nothing that is going to knock the Rolling Stones or Foo Fighters of my playlists. Hope they can capitalize on all this free publicity!

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  7. Pretty funny when the headlines are ~US SC supports constitution~! Shocking! Well, surprising; the 9th circuit would have found a way to wriggle around it. Maybe they already did. Even the Supremes didn’t come right out and say “Free Speech is in the constitution”. I haven’t read what the actually did say (TL;DR) but according to Forbes (and my paraphrase) they say that only the government has free speech and everyone else has limits. “Laws that discriminate against viewpoints and content are generally subject to judicial “strict scrutiny,” meaning that the law must be “necessary” to further a “compelling actual purpose.”” — except for the government. BUT… “Rather than attempt to pass strict scrutiny, the USPTO argued that the Lanham Act’s disparagement clause is not subject to strict scrutiny because trademarks constitute government speech.” I find that rather a stretch too.
    <blockquote
    In further dismantling the USPTO’s position, the Supreme Court noted that the USPTO itself has long held that “registration does not constitute approval” and that that if it did, that would mean the “Federal Government is babbling prodigiously and incoherently” since it registers many inarticulate and viewpoint-inconsistent marks.

    oooh, so not PC! more here…

    Another fascinating article is about the story of the bassist’s costly fight for his chosen band name.
    http://www.rollingstone.com/music/news/inside-asian-american-band-the-slants-scotus-win-w488615
    He points out the PTO approved the band name N.W.A. where the N is said to stand for the N-word.

    As much as “everyone” wants free speech, they want even more to make some exceptions, such as limits on hate-speech, however they define that. Two problems, where to draw the line and who draws it. If you expect the state to do it, are you okay with giving the task to bureaucrats who don’t care or to politicians who are apt to abuse it? It’s like a centrally planned economy; it’s too big for the state to manage, besides, they are incompetent at it.

    Liked by 1 person

    • You need to read the actual decisions. Thy do NOT say that Free Speech is a balancing act requiring benefits. They say that anything that limits Free Speech needs to meet many criteria, including showing that the limit achieves a needed result that cannot be achieved in any other way, and that the limit is as narrow as possible and does not limit Speech that does not cause the problems that the law is attempting to fix.

      If the law limits Speech that is not related to the problem the law is attempting to fix, then the law is not allowed, even if there is no other way to achieve the result.

      Arguing about a legal decision based on newspaper reporting is a very bad thing to do, you end up arguing against a strawman at best.

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  8. Pingback: Trademarked Hate Speech | Skating Under The Ice | Cranky Old Crow

  9. Thanks for this interesting post Willis.

    There are limits on the freedom of expression in all countries; on one side we want to protect the democratic right of the freedom of speech, on the other hand we also need some limits to protect against misuse.

    I am not claiming to be an expert, so I am only offering some thoughts to this
    Examples of expressions I think most of us want to be illegal are:

    • Urge someone to perform an illegal act for instance a terrorist attack
    • Distribute a detailed instruction on how to make a suicide bomb, how to use it, and lie about all the benefits the user’s soul will gain from this.
    • Expressing that a named person in your neighborhood is a rapist, read child pornography or perform other criminal activities without any reason at all. I think this should be illegal, at least if some powerful person or group express this against a less powerful person.
    • Shouting “Fire” in a full theater without any reason

    /Jan

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