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.
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.
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.
Skating Under The Ice 
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.
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Teaching in that circumstance sounds like torture. Thanks for the effort, in any case. I’m sure that some of your students have heard you.
Regards,
w.
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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.
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c4c
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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.
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Definition of “hate speech” – speech someone hates.
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Q. What is sexual harassment?
A. Anything a man says, does or thinks.
Q2. What is it when a woman does the same thing?
A. Fair turnabout.
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Who cares?
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I hate when people look at you and say “what ever”. Could this qualify as hate speech? 😉
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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.
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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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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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I been the crazy longhaired whiteboy who says whatever for years, getting older has just made it funner!!!!
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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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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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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.
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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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Sorry, I mangled the blockquote and the link to the Forbes article got left out:
https://www.forbes.com/sites/legalentertainment/2017/06/20/the-slants-win-big-supreme-court-ip-battle/
My paraphrase doesn’t do it justice; do read their opinion.
For official SCOTUS documents, see:
http://www.scotusblog.com/case-files/cases/lee-v-tam/
https://supreme.justia.com/cases/federal/us/582/15-1293/
http://www.scotusblog.com/2017/06/symposium-increasing-first-amendment-scrutiny-trademark-law-matal-v-tam/
and for people who REALLY like to read, Google “supreme court Matal v. Tam”
The lawyers can fight over the minutiae. I’d rather think about the philosophical concepts. Is free speech possible? Can you have democracy without free speech? I recommend this article by Jonah Goldberg:
http://www.nationalreview.com/article/448793/free-speech-tool-good-evil-steve-scalise-shooting-political-violence
Tolerance, there’s a forgotten word. Some believe that people are easily persuaded, so we must prevent them from hearing anything that is wrong or fake. Some believe that people are intelligent to decide for themselves, so we can let them hear all sides of the story. I think we have passed “peak enlightenment”.
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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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#3 is against the law as a matter of libel and defamation, it doesn’t matter if it’s a statement by a powerful person against a less power or by less powerful people against more powerful people.
#4 is a result of it putting people’s lives at immediate risk.
But the first two are actually not illegal, and it’s arguable if they should be (in part, what’s the definition of “urging” someone).
I’m also interested in how you can prove that any statement about the benefits to a person’s soul is a lie.
If you think that any laws outlawing information can actually eliminate that information, you just are dreaming. The Soviet Union tried very hard to outlaw some types of information, and even before computers and the Internet, they failed miserably.
Having laws on the books that cannot possibly be enforced breeds contempt for the law. It’s just not a good idea.
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Of course, no one can prove anything about anyone’s soul.
When I wrote, “lie about the person’s soul” it was just a shorthand for a story that can play out something like this:
A theological authority claims that they are fighting a holy war for God and against Satan. Furthermore he guarantees that all soldiers who fight for God will be rewarded in paradise and suicide bombers will be rewarded most. Then he lies about guaranteeing that the person’s soul will be rewarded.
Googled number 1, and it seems to be illegal if the action is to take place is imminent, but it is protected as free speech if the action is meant to take place in the indefinite future.
https://en.wikipedia.org/wiki/Incitement
/Jan
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correct, I was talking in the context of Internet communication.
In person:
Standing in front of a crowd and trying to convince them to turn and attack a group next to them is illegal.
Making a very similar speech that is then posted on the Internet is probably not, because of the disconnect between the speech and immediate action.
Similarly “fighting words” (if it still survives) only allows an immediate reaction to the words, it covers (or covered) the in-your-face insults that would generate an immediate punch as a result, not anything online or any time the reaction is delayed.
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The problem with using laws to do some things is that laws cannot do those things, and the legal system can’t do justice to those laws anyway. Using laws in this way results in a quagmire and/or a police state. Trivial example: the fines for littering have not prevented littering and probably not even reduced it. But social pressures (culture) have changed and have made a difference. Another example: abortion. There is no compromise possible here because beliefs are strong at both ends of the spectrum.
It comes down to this: you cannot legislate morality. Even if you make the laws, you can’t change the morals.
“Ah, but a man’s reach should exceed his grasp, Or what’s a heaven for?” (Robert Browning)
I don’t know what that means, but no matter how much you desire a law to do, it should stick to the things it’s good at. And stick to things on which there is a consensus (a real one).
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Making laws which the citizens refuse to obey seems to be a major problem. People have, for quite some time, held many laws in contempt and this has morphed into holding all laws in contempt.
As for the abortion and law angle, the major problem people have with abortion being legal is the fact the political left INSISTS that tax payers fund abortions, not that abortion is legal. I know a lot of people on both sides of this issue, and those against are against having to pay for it. Only a few are against the medical procedure being legally available. And yes, this is one of the points that has led to a growing contempt for law in America, whole lot of people see the “law” forcing them to financially support something they vehemently do not want to support. And it is pissing them off, more and more I hear what you would consider rock-ribbed conservative middle Americans declaring that if laws are being used to force them to pay for things which are morally reprehensible why obey them. This is dangerous and scary, and I believe it is a major point of the political left’s strategy, undermine the public’s support of and adherence to law and order.
Thus endeth the rant. Got to get more coffee and walk down to the beach, look at the beautiful vista of Cape Cod bay on this gloriously sunny morning!
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“Shouting “Fire” in a full theater without any reason”. This hypothetical is getting stale. It needs to be modernized. How about “shouting Allahu Akbar in a crowded theater. or rock concert. or subway.
How about just “shouting “Allahu Akbar” anywhere”. Making that illegal should solve the problem. (sarc)
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I recently took a flight from a regional airport in the UK. As I was in the line for security checks, the next person who arrived was a POC of Indian appearance (Am I allowed to write this?) wearing a T shirt showing the US flag crumbling and the words ‘DEMOCRACY IS CRAP’ overlaid. He was wearing a large rucksack. This was the week after the teenage girls were blown apart in Manchester but before the London knifing and van attack. Everyone, including the security staff said nothing and did nothing, One lady whispered “He didn’t have to wear that”. Afterwards I wondered what would have been done if a man with a T shirt with a crumbling ISIS flag and the words ISLAM IS **** had turned up. I live in the UK where emails are now monitored and Miss Dick, who runs the Metropolitan Police has a large team monitoring hate crime, so I missed the last word out..
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