June 20, 2017

The idea that the Court "should have more carefully balanced the interests of free speech with the strong public policy against prejudice and discrimination."

Expressed in an op-ed in USA Today called "A win for state-sponsored bigotry." The author is a lawyer who filed an amicus brief for the losing side in the "Slants" case. (A musical group won the right to trademark their name "The Slants," even though the government deemed that name "disparaging.")
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.
I'm so glad that side lost. It's horrible, this notion that the individual must wait for the "collective."

And I like the way the poll is going over there at USA Today:

50 comments:

Birkel said...

5 out of 6 people disagree and 6 out of 7, of those, strongly disagree.

But 10% want government to control. Those 10% will never give up their hope of making us slaves.

Dave from Minnesota said...

So the op-ed writer wants a gov't bureaucrat to tell the Asian-Americans that they can't call their band "the slants"? Does he also want the gov't to tell rappers that they can't use bad words in their.....are they called songs?

Sebastian said...

"It's horrible, this notion that the individual must wait for the "collective."" I appreciate the sentiment. But "wait" is not quite the right verb: the point of the left is to make us bow. After a century of progressive politics, they are well on their way, USA Today "poll" results be damned, aided and abetted by law profs, Dem officials, and violent thugs.

Wilbur said...

"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."

I agree - the decision does not empower them. They already have the power. And you don't like it? Too bad. Amend the Constitution. If you can.

Virgil Hilts said...

Haven't read the briefs for losing side, but if they are on a par with this guy's ramblings the 8-0 decision makes sense. "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." What a bunch of ignorant crap. Almost makes me wonder if the Redskins paid him to write an amicus brief for the other side.

iowan2 said...

I only wish SCOTUS would more often realize that the political solution is the only true way to reslove an issue. Homosexual marriage> political solution.

Virtually Unknown said...

Yankee was a slur that references masturbation, Knickerbocker? Maybe, sounds like it was.

Tommy Duncan said...

Ann said: "I'm so glad that side lost. It's horrible, this notion that the individual must wait for the "collective."

What in your constitutional law background could possibly make you even consider the individual's interests in light of the greater good?

Democracy is mob rule with a ballot box.

Virtually Unknown said...

A slur, I mean.

Virtually Unknown said...

Yankee Doodle = Jerking turd. But we won anyway.

great Unknown said...

Remember that one of the arguments against confirming Judge Gorsuch was that he ruled according to the text, not according to feelings.

Chris Breisch said...

Allahpundit, quoting Alito:
"Alito counters: Does that mean the government could refuse to recognize an author’s copyright to his book if it found his views offensive? Game, set, match."
http://hotair.com/archives/2017/06/19/redskins-win-disparaging-trademarks-protected-first-amendment-says-scotus/

Dave from Minnesota said...

Remember that one of the arguments against confirming Judge Gorsuch was that he ruled according to the text, not according to feelings.

See the collections ruling from a couple of weeks ago. The law may not have been written in the best way, but he ruled according to the law. Now it is up to Congress to fix the law so the collections rules apply to more entities (if that is what is wanted).

Bruce Hayden said...

This is how strict scrutiny for an enumerated, fundamental, Constitutional right should work. Now, if the courts would just st treat the 2nd Amdt as well as they do the 1st.

Ann hits an important point - our Bill of Rights is essentially anti-democratic. Part of its purpose is to protect individual rights from the collective, from the terrorism of the collective, or the majority. This is also why state sanctioned hate speech codes and the like, such as those sprouting up at state colleges and universities, should be soundly rejected by the courts.

Tank said...

As has been noted here before, it's the "bad" speech that needs protection.

John Borell said...

"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."

They can sue or threaten to sue but they won't win.

Come on, Daniel J. Kornstein, free speech isn't that hard. Trademark law isn't that hard, either. One can use another's mark to criticize.

Jeeze. These people.

holdfast said...

On issues like gun rights I'll take any majority I can get, but it's nice to see that all the Justices seem to understand what's at stake here.

EDH said...

Isn't the purpose of a Trade Mark to restrict the use of a term?

Simple economics: If it's truly offensive to the "collective", and it's use is restricted by law to only one owner, then it will be both worthless and its use more rare than if it were left in the public domain.

HoodlumDoodlum said...

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.

See, when the wrong people stand up for free expression they're doing so for non-genuine reasons and their concern is non-genuine.
When will we know when "community acceptance" has been achieved? Oh, probably when this son of a bitch gives his say-so.
Fuck you, Kornstein, you piece of shit. I don't think your concern for people who might be offended is genuine--you just want the power to control other people's expression. You're a tiny step above a Stalinist stooge and even the left wing of the Supreme Court rejects your position. Power-hungry little loser.

khesanh0802 said...

I guess the most important question is: "Are we seeing the beginning of the end of The PC movement?" I am willing to utter a tentative "yes". The speech police have been exposed as the frauds they are ("only your speech shall be monitored"). The First Amendment is intended to apply to all Americans, not just to the supremely self-important.

gregq said...

Here's what I would have posted there, if they didn't do Facebook for comments:

You have two failings:

1: You apparently don't know how to read (as demonstrated by the ignorant stupidity you're babbling here, you clearly didn't bother to read the decision)

2: You are a hate filled totalitarian thug

If a gov't trademark is "Government approval", then so is a gov't copyright. So essentially, if you actually believed the stupidity you're spouting, you're saying teh gov't should be in the business of agrressively denying people the right to say things you don't like.

Here's hoping you're the first person President Trump uses that power on.

gregq said...

Tommy Duncan said...
Ann said: "I'm so glad that side lost. It's horrible, this notion that the individual must wait for the "collective."

What in your constitutional law background could possibly make you even consider the individual's interests in light of the greater good?

Democracy is mob rule with a ballot box.

Yes, it is. Which is why we have Constitutional rights, because the mob has decided that "this thing" will be outside the mob's ability to rule

HoodlumDoodlum said...
This comment has been removed by the author.
richlb said...

@Dave from MN - So the op-ed writer wants a gov't bureaucrat to tell the Asian-Americans that they can't call their band "the slants"? Does he also want the gov't to tell rappers that they can't use bad words in their.....are they called songs?

I have mixed feelings about this one. Technically the government wasn't telling them they couldn't call their band The Slants. They were merely saying that they couldn't enjoy a government-approved form of Censorship known as Trademark Protection. They could call themselves the Cracker Slant Wop Heebies if they wanted to.

In the end it the system used to determine what was "disparaging" was indeed open to too much interpretation. It was bound to be abused and inconsistent. I'm glad it was overturned, but I can't say that I think the government limiting trademarks is a bad thing overall.

Fernandinande said...

"A win for state-sponsored bigotry."

State-sponsored bigotry isn't as good as private bigotry, but it's better than no bigotry at all.

rhhardin said...

The left got japped.

Eric the Fruit Bat said...

What's getting lost in all this rigmarole is the fact that "The Slants" is a great name for a band full of Asian-Americans.

Martin said...

"Vast social harm?"

Sorry, no. The Holocaust was "vast social harm." The Soviet Union or Nazi Germany caused "vast social harm." One might argue that the Great Depression caused "vast social harm." Slavery and Jim Crow. Pol Pot. Rwanda 1994.

This case barely qualifies as a tempest in a teapot--tho I am glad it went the way it did, because someone has to stand up for freedom of expression and free speech when they are under assault, and who better than the Supreme Court?

"State sponsored bigotry?" At worst, "State-permitted bigotry," which is not a positive action but the negative one of forebearance. And that is letting slide his use of teh word "bigotry," which is fatuous.

This is a real twit, and if an actual lawyer, it says nothing good about where that profession has gone.

Richard Dolan said...

There was another line in Kornstein's op-ed that was really off, where he suggested that the registration of a trademark gives the trademark holder a shot to shut down criticism of the trademark. Kornstein is a prominent player in the NY legal community, but this op-ed is all about Manhattan politics and what plays here in some 'progressive' circles.

Ann Althouse said...

"What's getting lost in all this rigmarole is the fact that "The Slants" is a great name for a band full of Asian-Americans."

What if they weren't of Asian descent? The ruling in no way gives special privilege to those in a disparaged group who are taking back a bad word.

Ann Althouse said...

"I have mixed feelings about this one. Technically the government wasn't telling them they couldn't call their band The Slants. They were merely saying that they couldn't enjoy a government-approved form of Censorship known as Trademark Protection."

They were denying them what groups with other names could have. That's viewpoint discrimination. Think where this theory would lead: Government could offer benefits — copyright protection, tax deductions — for the speech it likes and deny it to the speech it wants to inhibit.

What if bloggers deemed not to support progressive values were not permitted to take a tax deduction for their expenses and all the other bloggers could?

Ann Althouse said...

"They were merely saying that they couldn't enjoy a government-approved form of Censorship known as Trademark Protection."

So... this is a "property is theft" argument?

Jeff Weimer said...

And all the "hate speech isn't protected" clowns (Howard Dean, I'm looking at you) can stick this decision in their pipe and smoke it, too.

Virtually Unknown said...

What if the band was The Vapors post "Turning Japanese" and they now sincerely identify? This stuff is full of more causal contradictions than time travel.

n.n said...

They would have us click, whistle, and spit to our final resting place. Selectively, of course.

Thorley Winston said...

The votes are up to 360 now with:
3% strongly agreeing with the author
2% agreeing with the author
1% saying that they don’t know
11% disagreeing with the author
83% strongly disagreeing with the author

Trumpit said...

Look how Republicans tarred and feathered comic Kathy Griffin for protesting Trump's hatefulness and bigotry with an effigy: Trump's "blood coming out of everywhere" severed head. They trot out the First Amendment only when it suits their cynical partisan purposes.

Look how many Republicans called for Bill Maher's head for using the N-word in a joke. Now we are informed that only blacks can use that offensive word. It's okay if blacks hate themselves. In fact, it is encouraged.

Notice how right-wingers are exploiting the little-league shooting of right-wing congressmen by running highly offensive ads against Jon Osseff blaming him for the shooting. At long last, have they no shame?

Yancey Ward said...

Considering this guy is one of those filing an amicus brief for the losing side, no wonder it was essentially a unanimous decision against him.

Bay Area Guy said...

We believe in free speech! -- except for hate speech.

And, we define hate speech, as anything said by Milo Yiannapolous, because he is a racist, bigoted, homophobic homo.

Now, where is my safety pin and safe space?

Ann Althouse said...

@thorley

Maybe some votes from the readers here.

Rusty said...

Trumpit
Nobody stopped Griffin from doing what she did. You can say whatever you want and I'm free to disagree with you.
Get it?

Infinite Monkeys said...

"Yankee was a slur that references masturbation"

I think not.

Freedom89 said...

His opinion is downvoted by more than 10-1. He failed to consult with the community and the collective. Therefore, by his own logic, it can be banned, and he can lose the government benefit of his law license.

JAORE said...

A victory for NWA....

Rational moments seem to be fewer and further between. I shall savor each one.

Achilles said...

"State sponsored bigotry?"

That would be when democrats passed Jim Crow.

campy said...

His opinion is downvoted by more than 10-1. He failed to consult with the community and the collective. Therefore, by his own logic, it can be banned, and he can lose the government benefit of his law license.

Only the votes of The Woke count.

Richard said...

Well, this Confederate-American formally adopts the etymology of "Yankee" as related by Virtually Unknown, and carves it in stone for a thousand generations to know.

Unknown said...

The author of the USA Today column contradicts himself--If one may not use bad words, there is no way to "reclaim" or "normalize" them. Also, how do you find out what the majority thinks? I have heard that actual native americans don't feel offended by baseball teams using Indian images or names--but of course SOME native americans are offended and some whites are offended on their behalf. Since some people have complained that even wood paneling is "othering" or that accounting terms (in the black) are racist, the problem with officially giving an ok to some terms and not others becomes more clear: almost anything can offend someone due to their being ignorant or an idiot. A prof got in trouble for using the word "niggardly". An irishman (scottsman?) got in trouble for talking about his "clan" colors or something, and no amount of clarification would save him. So there is no "collective" to which we can refer, no way to get a gold-plated ok for anything.

Jim at said...

Trumpit clearly doesn't understand the first, damn thing about the First Amendment.

Freedom of speech is not free of consequences by private parties who disagree with said speech.

Jeebus you people are stupid.

Earnest Prole said...

Thank God (and I mean that literally) that during a rough patch for free speech, we can get a unanimous ruling on this from the Supreme Court.