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Crosstalk: Boundaries on free speech?



The U.S. Supreme Court ruled last week that even hate speech qualifies for constitutional free speech protection, a welcome ruling in an age when the left is using political correctness to go after anyone who doesn’t share its ideology.

In a firm 8-0 decision, justices slapped down the Patent and Trademark Office for denying a band called The Slants federal trademark registration because the name is a derogatory term for Asian-Americans.

Band leader Simon Tam argued that The Slants was Asian-American and sought to “reclaim” and “take ownership” of negative stereotypes.

The litigation centered on a provision of federal trademark law from 1946 referred to as the “disparagement clause.”

The clause is interpreted by an examiner who determines whether or not the mark would be found disparaging by a “substantial composite, although not necessarily a majority, of the referenced group.”

In classic safe-space reasoning, the trademark office determined that the name The Slants could offend a segment of the population, which the court utterly rejected, deeming free speech rights vital to a free society and inviolate in the U.S. Constitution.

“Speech that demeans on the basis of race, ethniticity, gender, religion, age, disability, or any other similar grounds is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedoom to express ‘the thought that we hate,’” wrote Justice Samuel Alito.

Justices determined that basing a trademark prohibition on the presumed reactions of an offended group is “simply government hostility and intervention in a different guise.”

“If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,” free speech would be endangered,” wrote Alito.

A friend-of-the-court brief filed by the “Cato Institute and a Basket of Deplorable People and Organizations” urged the court to “make the jobs of employees (at the trademark office) much easier by putting an end to the disparagement clause.”

The brief argued that government officials cannot be trusted to “neutrally” identify speech that disparages. After all, the trademark office had approved rocks bands named the Dying Fetus and Sex Pistols and Niggaz Wit Attitude. So were entities with names such as Take Yo Panties Off and Capitalism Sucks Donkey Balls.

In 2014, the trademark office denied protection to the name of the Washington Redskins, despite a Washington Post poll showing that 90 percent of Native Americans were not offended by the name and only 18 percent of “nonwhite football fans” favored changing it.

Bureaucrats should not be given power to regulate speech based upon their own prejudices or political agenda. Especially with the frightening trend underway to target and shut down conservative Christian viewpoints.

Earlier this year, Merriam-Webster released a collegiate dictionary that was lauded by social justice activists for joining the fight to make it “impossible to use any word or grammar that has not been approved as multi-culturally sensitive, nonsexist, inoffensive, nondiscriminatory, non-racist, diplomatic, gender-free or non-biased.”

Merriam added 1,000 new words that included “safe-space” and “micro-aggression.” These words have been used on college campuses to stop conservative speakers from delivering “offending” messages.

Nothing like having a different point of view expressed to interfere with educational indoctrination.

Ending the free-exchange of thoughts, ideas and intellectual challenge sets the stage for persecution of minority voices. If this relentless assault on free speech succeeds, those who resist conformity will be silenced and no one will be safe from the tyrants who rule us.

Thankfully, the Supreme Court set back that agenda with its ruling. Even when speech offends, it must be tolerated in a free society.

— RaeLynn Ricarte

Members of the Asian-American rock band The Slants have the right to call themselves by a disparaging name, the Supreme Court says, in a ruling that could have broad impact on how the Frist Amendment is applied in other trademark cases.

The case centered on the 1946 Lanham Act, which in part prohibits registration of a trademark that “may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

Although the act evenhandedly prohibits trademarks that insult any group, the law was deemed unconstitutional because it violates the Free Speech Clause of the First Amendment.

The band said it wanted to reclaim what is often seen as a slur. With the trademark, they have the right to restrict use of The Slants name.

The decision will likely impact another active case involving the “Redskins,” which is defending its use of a trademark some believe disparaging to Native Americans, living and dead alike. Which it is.

While I agree the government should have no role in legislating speech and morality, the decision does raise a simple question, one not easily answered: How do we, as Americans, address speech that is disparaging, hateful, expressing contempt or otherwise offensive?

An Asian-American rock band calling itself “The Slants” strikes some as being acceptable, much in the way many find the “N-word” (a word which I would never use or print) acceptable provided those using the word are black.

Words are powerful, and if it is not the role of government to legislate the use of offensive language — which it isn’t — how do we as Americans guard against offensive and derogatory language being used against our fellow Americans?

Here in Oregon, we have even greater protections of free speech than is provided at the federal level. Article 1, Section 8 of the Oregon Constitution says, ''No law shall be passed restraining the free expression of opinion or restricting the right to speak, write or print freely on any subject whatsoever; but every person shall be responsible for the abuse of this right.''

Oregon’s unrestrained “freedom of expression” has been challenged and interpreted in many ways. In 1982 an appeal of one count each of “possessing obscene material to disseminate and of disseminating obscene material” was upheld, the court ruling that ''In this state any person can write, print, read, say, show or sell anything to a consenting adult even though that expression may be generally or universally 'obscene.' ''

That ruling opened the door to a great deal of “obscene material” being made available in the state, and when applied to nudity inspired a great many strip clubs and bars as well.

In fact, Portland, Oregon is #1 in a ranking of strip clubs per capita in the United States, according to a report on priceonomics.com.

Where we accept the rights of a business to “aim to tease,” the proliferation of such clubs has also created in Oregon a sort of “meat market,” with an illegal underbelly of prostitution, drugs and sex trafficking.

With both verbal and body language protected by the Oregon constitution, and boundaries regarding both being constantly pushed and stretched, it’s worth noting the final line of the Oregon Constitution quoted above, which reads, “but every person shall be responsible for the abuse of this right.”

We are each of us responsible for our words and actions, and have both the right and responsibility to speak against abuse of those rights.

Take the trademark “Redskins.” Native American individuals, tribes and organizations have been questioning the use of the name and image for decades.

Legal? Maybe. But “legal” doesn’t make it “right,” and such ethnic stereotyping is harmful and it’s time the team (following the lead of The Dalles High School) retires this divisive logo.

— Mark Gibson



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