The Supreme Court Rejection of a Law could help Washington Redskins.
Prejudice increases when the government lends its authority to slurs: Opposing view.
The Supreme Court’s ruling in The Slants case worries me; it looks more like a victory for government-sanctioned bigotry than a win for free speech. The court voided, on free speech grounds, a federal law barring “disparaging” trademarks — using a judicial sledgehammer in a case calling for a judicial scalpel.
Trademark enforcement is a powerful means for businesses to silence expression they view as harmful to their commercial or political interests. The holders of controversial or disparaging trademarks, such as sports teams with Native American symbols, can sue or threaten to sue people who criticize the use of such marks. The result may chill protest.
Nor does the decision take sufficient account of the collateral damage caused by encouraging widespread commercial use of offensive and derogatory marks. Racial and ethnic slurs lead to harmful prejudice against minority groups.
Prejudice increases when the government lends its authority to those slurs. A trademark is a monopoly granted by the government. A disparaging trademark puts the imprimatur of government on a racial or ethnic slur.
Genuine concern for free expression requires a more tailored solution than the Supreme Court reached. “Reclaiming” an ethnic slur or other derogatory term with entrenched historical and cultural connotations to turn it into something more positive requires collective action and community acceptance.
Removing the federal bar against registering disparaging marks does not empower minority communities to “reclaim” previous slurs to show pride or make the terms acceptable. It only threatens vast social harm by opening the federal registration system and its benefits to epithets and terms of personal abuse.
The Supreme Court should have considered a narrower holding. It could have set criteria for “reclaiming slants” without throwing out the disparagement statute. It should have more carefully balanced the interests of free speech with the strong public policy against prejudice and discrimination.
Daniel J. Kornstein is a lawyer in Manhattan who submitted a friend of the court brief in The Slants case for Asian Americans Advancing Justice.
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