Thursday, July 13, 2017

Offensive is Protected (somewhat at least)

There has been so much written about freedom of expression lately. There are those in our society that wish to never be offended. They seek government intervention to protect them from the statements of others. There are even those who advocate repeal of the First Amendment to the United States Constitution, arguing that both the framers were, and and the document is, "flawed." 

Fox News reported in 2015 that Ivy Leagers sign 'petition to repeal First Amendment. The National Review reported that "many Americans support making it a criminal offense to make public statements that would stir up hatred against particular groups of people." The NY Times reports that American universities have striven to provide "safe spaces" for people to shelter from speech that they might find "troubling or triggering." That has not been without controversy according to the Atlantic

In a general sense, America seems to be eschewing the age-old maxim that "sticks and stones may break my bones, but names can never hurt me," which most will remember as a recess mantra of some bygone era. Another favorite was "I'm rubber, you're glue, everything you say sticks right back to you." Ah, those were the days, remember recess? If you were looking for a definitive "non-safe zone" the elementary school playground was often a good bet back in the day. 

Incidentally, this year House Bill (HB) 7069 passed in Florida, which requires "free-play recess" for students. We have to legislatively force schools to provide recess. Don't get me wrong, I like recess (why not a statute that mandates "free-play recess" for workers' compensation judges?). But, I digress. 

Can we make the world "offense free?" There are efforts underway. There are street names being changed, college buildings being renamed,  statutes being removed, statutes being replaced, emblems being reconsidered, and even lawsuits over state symbols. Each represents some level of offense perceived by someone. However, recognizing that people are individuals, can we build an environment that is not offensive to anyone? One might win the Nobel Prize and yet not enjoy universal acceptance or admiration. Can the city name the street I live on after such a Prize winner with whom I disagree?

This subject arose again recently with the United States Supreme Court's decision in Matal v. Tam, 137 S.Ct. 1744 (June 2017). Simon Tam is a singer and his band is called "the Slants." Mr. Tam tried to register "THE SLANTS" as a trademark, to protect the intellectual property of his band. The Patent and Trademark Office (PTO) denied that application under a provision of "the Lanham Act" (note there is no "g" there, no relation whatsoever). This law prohibits "registration of trademarks that may 'disparage . . .or bring  . . . into contempt or disrepute' any 'persons, living or dead.'" The PTO found the term "slants" offensive in this context and therefore denied Mr. Tam's application. He sued, after all that is the American way. 

This is commonly referred to as the "disparagement clause." And, there is certainty that the term "slants" can have a negative and even insulting connotation. But, Tam is of Asian descent and he "chose this moniker in order to 'reclaim' and 'take ownership' of stereotypes about people of Asian ethnicity." Similarly, the band has named its albums "The Yellow Album," and "Slanted Eyes, Slanted Hearts." This appropriation is not new per se, others have expressed that the same logic, of appropriation and ownership. It has been employed by others who appropriate insulting epithets directed at their own perceptions of identity. There is a perceived power in appropriating derogation and denying words power over one's self. 

An eight judge unanimity of the Unites State Supreme Court concluded in Tam that employment of the "disparagement clause" is an unconstitutional infringement of "the First Amendment's Free Speech Clause." The Court rejected the government's contention that by granting such a government protection (trademark or copyright) that the speech would become "government speech." In a humorous paragraph, Justice Alito noted
For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to “make.believe” (Sony), “Think different” (Apple), “Just do it” (Nike), or “Have it your way” (Burger King)? Was the Government warning about a coming disaster when it registered the mark “End Time Ministries”?
These are great examples. By the same token, is the government endorsing someone is actually a Good Neighbor, that you will actually Be all You Can Be, or can eat your way to success with the Breakfast of Champions? Is government endorsing that we Eat Fresh, or Got Milk, or that something might actually be Good to the Last Drop? Let's face it, a great many trademarked promotional phrases make some pretty strident promises. 

Justice Alito wrote that if trademarks were government speech, then undeniably "The Federal Government is babbling prodigiously and incoherently" (some might find such a characterization to be offensive, but I am sure none was intended by the Justice). It is possible that this potentially offensive characterization hurt the feelings of some few government lawyers at the PTO (who may have simply adopted a "sticks and stones" stance in response, or who may now be seeking counseling to assuage their insulted feelings). 

This characterization of trademarks being "non-government speech" is compared by the Court to actual government statements. Coincidentally, the Court has held that "monuments in the park represent government speech." That distinction may be of interest in the instances of building renaming, statute removal and more discussed above. The Court similarly dismissed comparisons to the content of messages on state-issued, state-owned, vehicle license plates. These actually are government speech, and perhaps treated differently than individual speech. 

So, the law currently, seemingly, supports that free speech protections of the First Amendment protect the private ("non-government") expression of ideas that are offensive to some. Mr. Tam has won his right to appropriate and copyright a term that to some derogates his heritage, but by which he refuses to be personally offended. He has won the right to use and protect the term. 

It is nonetheless possible that others of Asian descent and heredity might nonetheless take offense at THE SLANTS. It is possible (or factual) that Native Americans, or those of native American descent, could find the Washington Redskins trademark as offensive. That is a trademark that has similarly been in the news in recent years. A federal judge in 2015 ordered "Redskins" and other trademarks cancelled because they were "disparaging to a substantial composite of Native Americans." 

And, there will be discussion in the future about whether our individual identity, or identity perceptions, matter in the delineation of offense. Is it acceptable for Mr. Tam to appropriate the potentially offensive "SLANTS" because he is of Asian descent, or will equal protection be afforded if a non-Asian seeks to use some similar potentially offensive term? Does the identity of the user matter? 

That will be at least two-fold, does identity matter in trademark (will the non-native american owners of the Redskins receive the same treatment as Tam), and does the identity matter in public perception (will society be more forgiving of spoken utterances of derogation if they are spoken by those they originally or traditionally disparaged)? Despite receiving a trademark, might some individuals nonetheless stage protests against either the Redskins or the Slants?

The fact that the law protects this speech seems settled, at least in this PTO or trademark context. But, that does not mean that language will not offend or hurt (the fallacy of "sticks and stones" is that words really do sometimes hurt, like it, admit it, or not). Does it matter in that context that the speaker is self-deprecating or appropriating as strength (as in Tam or Kanye), as opposed to purposely insulting others? May a listener be offended by such expression despite the identity or intent of the speaker? 

In a far broader context, is it possible to render the world an "offense free zone," or even to render smaller "zones" so? It seems a difficult proposition, particularly in light of the subjective nature of people's perceptions. What might seem innocuous to many in Tallahassee (an FSU Seminole jersey, bumper sticker, or lapel pin) might be downright offensive to some whose loyalty lies in other 'villes around Florida. Can one freely eat a hot dog without fear of offending some passing vegan? There seems so much that might offend, upset or disconcert. I have seen fist fights erupt over the relative desirability and reliability of the Bow Tie versus the Mopar. 

It is a fascinating discussion, about speech, expression, government involvement, offense, perceptions, feelings, and more. Perhaps it will turn out that each of us will invariably hear and see things periodically that offend or hurt us. Not necessarily because someone intended to hurt us, but because the speakers have no way of knowing our individual thoughts, beliefs, and trigger points? Is it possible that there might be a little "snowflake" in all of us, but that some of us internalize and cope with our offense more? Or, is "snowflake" per se offensive and inappropriate to say or to trademark?

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