PD Editorial: A bittersweet triumph for free speech

The right to be offensive trumps people’s desire not to be offended. So ruled the U.S. Supreme Court this week. The government does not get to decide what words and phrases are in bad taste, at least not when it comes to private speech.

Whenever free speech triumphs, it is worth celebrating, but the victory this time is bittersweet. Cretins and worse will embrace their renewed opportunity to offend under the First Amendment.

The court case in question involved a dance-rock band from Oregon that called itself The Slants. The members of the band are Asian Americans, and they wanted to “reclaim” a denigrating term with their name. When they went to the U.S. Patent and Trademark Office to register it, however, officials denied their application. A federal law prohibits registering terms that disparage groups.

The Supreme Court found that law unconstitutional. The Slants can have their trademark and all the protections that go along with it.

The First Amendment’s free speech protections are a cornerstone of democracy precisely because they ensure that difficult, upsetting, challenging and offensive speech may be spoken, written or trademarked.

The government may restrict speech only under very narrowly prescribed circumstances, for example, shouting fire in a crowded theater. If the government can decide what is off-limits because some people deem it offensive, then it is a short step to suppressing messages that the government simply does not like.

Justice Anthony Kennedy wrote in a concurring opinion in the case, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

Legal analysts believe that this decision clears the way for the Washington Redskins football team to keep the trademark on its disgustingly racist name. No doubt the team’s owner and fans will do so. The best rejoinder is to call them out for it often and loudly.

The decision will not change things for California public schools forced to stop using “Redskins” under a state law, nor should it dissuade Napa High School from following a committee’s recommendation to stop using the slightly less odious but still inappropriate Indian mascot. The government may not control what citizens, bands and businesses are allowed to say, but it does have the right to set limits on its own messaging. Public schools are an arm of the government, and the state can regulate their mascots.

The First Amendment assures Americans that they may say the crassest, dumbest things. People can choose to ignore the effects of their words, mascots and trademarks on others. Or they can show compassion and consideration by eschewing speech that dehumanizes and insults. Speaking freely is easy. Speaking wisely elevates our words to their most noble ends.