Right On: Getting ‘The Slants’ on freedom of speech

Top row from L-R: Chief Justice John G. Roberts, Jr., Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer; bottom row from L-R: Justices Samuel Alito, Sonia Sotomayor, Elena Kagan, Anthony Kennedy. Not shown: Justice Neil Gorsuch as he did not vote in the matter discussed in the attached opinion column. | Photos by Steve Petteway (cropped) from the Collection of the Supreme Court of the United States, St. George News

OPINION — Who’d a thunk it?

The country just had a freedom of speech victory that I can cheer and I suspect that my fellow St. George News opinion columnists, liberal Ed Kociela and libertarian Bryan Hyde, will as well.

The victory: All four conservative Supreme Court Justices joined with all four liberal justices for an 8-0 decision. How on earth did that happen?

A rock band calling themselves “The Slants” – composed entirely of Asian Americans – chose their seemingly offensive name to mock those with racist and bigoted stereotypes of Asians. Following normal business practice, they applied to trademark the name with the U.S. Patent and Trademark Office.

The Trademark Office rejected the application, citing a Lanham Act provision that prohibits trademarks that “disparage” others. That seems reasonable at first blush: To most of us, racially-disparaging names are offensive, as are those disparaging religion, ethnicity or gender.

So who would argue with good manners and sensitivity to others’ feelings?

It turns out “The Slants” chose to argue, taking their case all the way to the Supreme Court. And after a little reflection, most of us, including Ed, Bryan and me, should be glad they did.

Our First Amendment states that “Congress shall make no law … abridging the freedom of speech ….” Like most of the freedoms we enjoy, we often take this one for granted. That is, until someone starts saying things that touch a raw nerve. That’s different!

But is it really? Ed and I often disagree but in a recent column he strongly defended the First Amendment rights of “even those with poor judgment.” It’s likely you agreed that some of his examples embodied not only poor judgment but were downright offensive.

Here’s the rub. Empowering someone or some government body like the Trademark Office with the authority to decide whether something is offensive puts us all on a slippery downhill slope.

Was candidate Trump offensive? How about the nationally-televised vulgar language of Democratic Party Chairman Tom Perez and Democratic Sen. Kirsten Gillibrand? Chances are you’ve been offended by one or another or maybe all three, while others hardly noticed.

The problem with subjective government judgments about offensive speech is that, well, they’re subjective. “Disparagement” is in the eye of the beholder and the power to make that determination could be easily abused.

Instead of accepting the Trademark Office’s judgement and changing their band’s name, “The Slants” went all the way to the Supreme Court. The Court ruled decisively that offensive speech is not prohibited speech.

The decision was greeted enthusiastically by the owners of the Washington Redskins and Cleveland Indians professional sports teams. Both have been under pressure from those who claim these nicknames are offensive.

But neither team is likely to feel much heat from those supposedly offended. Per the liberal Washington Post, over 90 percent of Native Americans say the name “Redskins” does not bother them.

Nonetheless, there are limits to free speech. You can’t yell “fire” in a crowded theater. Displaying child pornography will send you to prison. Violating copyright laws, making intentionally false statements of fact, as well as publishing false or misleading advertising are punishable offenses.

So far, so good; I’m OK with those exceptions. But how about threats of violence?

A number of high profile leftists have advocated violence and death for their political opponents. As I discussed in last week’s column, this is a very troubling incitement to mentally unstable followers like James Hodgkinson who shot Congressman Steve Scalise and four others this month in Virginia.

Are these advocates of death protected by the First Amendment?

The Court has held that “threats of violence that are directed at a person or group of persons that has the intent of placing the target at risk of bodily harm or death are generally unprotected.” (Virginia v. Black, 538 U.S. 343) However the Court has also held that such “threats may not be punished if a reasonable person would understand them as obvious hyperbole.” (Watts v. United States, 394 U.S. 705)

One person’s “hyperbole”- a statement not meant to be taken literally – could easily be interpreted by another as “placing the target at risk of bodily harm or death”, particularly by threatened victims. Members of Congress of both parties have received death threats that they don’t view as hyperbole and have called for additional protection.

I agree with them. These explicit threats are not “obvious hyperbole” regardless of the speaker’s intent. While the public figures making death threats are unlikely killers, their words clearly incite others. To me, that removes their First Amendment protection. Bring charges and let a jury decide hyperbole or not.

Bottom line: Feel free to offend your neighbors with offensive words and apparently even death threats as long as they are deemed hyperbole. But I’m with Ed, doing so will still evidence poor judgment. It’s also likely to keep you off the invite list for your neighborhood’s annual barbecue.

Howard Sierer is an opinion columnist for St. George News. The opinions stated in this article are his own and may not be representative of St. George News.

Email: hsierer@stgeorgeutah.com

Twitter: @STGnews

Copyright St. George News, SaintGeorgeUtah.com LLC, 2017, all rights reserved.

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