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Yes, hate speech is free speech

POSTED: June 30, 2017 7:00 p.m.
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Rich Lowry is editor of the National Review.

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With the left feverishly attempting to squash unwelcome speech on college campuses, with the president of the United States musing about tightening libel laws, with prominent liberals asserting that so-called hate speech is not protected by the First Amendment, free speech in America at least has one reliable friend — the Supreme Court of the United States.

In a firm 8-0 decision, the court slapped down the Patent and Trademark Office for denying federal trademark registration to a band named "The Slants," a derogatory term for Asian-Americans. As it happens, The Slants is an Asian-American band that seeks to "reclaim" and "take ownership" of anti-Asian stereotypes (it has released albums called "The Yellow Album" and "Slanted Eyes, Slanted Hearts"). This didn’t matter to the trademark office any more than it presumably would to the dean of students at the average liberal-arts college.

The litigation hinged on a provision of federal trademark law referred to as the "disparagement clause." This clause forbids registration for any trademark "which may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute." Taken literally, this provision would forbid the disparagement of the KKK, an institution; or Benito Mussolini, a person who is dead; or Vladimir Putin, a person who is living.

The trademark office interprets the clause with all the wisdom you’d expect of a federal bureaucracy. As its manual puts it, an examiner determines whether or not the mark would be found disparaging by a "substantial composite, although not necessarily a majority, of the referenced group." So, merely a plurality of the offended will do, and common sense is no defense.

This is classic safe-space reasoning — the harm that would allegedly befall some portion of a group from encountering an offending trademark should trump the free-speech rights of the likes of "The Slants." The court utterly rejected this posture, deeming it inimical to a free society and untenable under the U.S. Constitution.

In a passage that should be pasted into the student handbook of every college and read aloud by progressives who have convinced themselves that hate speech is not free speech, the court held, "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’"

As the court’s concurring opinion noted, basing the trademark prohibition on the presumed reactions of an offended group doesn’t help — "a speech burden based on audience reactions is simply government hostility and intervention in a different guise."

The disparagement clause was the wedge that activists were trying to use to force the Washington Redskins to change the NFL team’s name (the team has been fighting the cancellation of its trademark in court). And every effort by the speech police to spread their operations from college campuses to the wider society must be resisted.

In this case, they came for a self-described "Chinatown dance rock" band with a cheeky name, and the Supreme Court said, "Sorry, not in America."

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