Protecting “The Thought That We Hate” -Matt Phillips

As July 4 approaches, people all over the country prepare to celebrate the victory of our forefathers in establishing independence.  But there is a greater contest unfolding in America these days: a competition over the extent to which free expression should be permitted. In this vital conflict, a major victory was secured in the paneled chambers of the United States Supreme Court.  On June 19th, the highest court in the land secured a major victory for the First Amendment when they unanimously ruled in favor of the rock band “The Slants” in their defense against the U.S. Patent and Trademark Office.

The Slants is an Oregon based, Asian-American rock band founded in 2006. Their mission is to reclaim terms used in derogatory ways against Asians and champion them as emblems of their culture. “We grew up and the notion of having slanted eyes was always considered a negative thing,” said Simon Tam, the band’s front man.  “Kids would pull their eyes back in a slant eyed gesture to make fun of us . . .  I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride.”

In 2010, the band applied for a trademark on their name and was rejected on the grounds that it was offensive to a community.  The U.S. Patent and Trademark Office (PTO) cited the Lanham Act, a 1946 federal statute that bars any trademark that could “disparage . . . or bring . . . into contempt or disrepute” anyone.  Rather than accepting the denial, the Slants decided to take their case to court, eventually arguing before SCOTUS.

The longstanding opinion of the PTO, which they argued before the Court, is that federal trademarks have the approval of the federal government and represent government speech.  The government should therefore only extend trademarks to viewpoints that could in no way disparage anyone the government represents.  However, the Supreme Court sided with Tam and the Slants and ruled that the disparagement clause is in conflict with the first amendment.  “The disparagement clause violates the First Amendment’s Free Speech Clause,” wrote Justice Alito in his affirmation of the decision.  “Contrary to the government’s contention, trademarks are private, not government speech . . . if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”

 

Some might disagree with Alito’s statement and hold that government protection is equivalent to government endorsement, but in doing so they misunderstand the nature and purpose of government.  One of the primary functions of government is to protect the property of individuals from each other.  This protection extends not only to material objects but also intellectual works, such as a design or slogan.  For example, the phrase “I’m lovin’ it” is trademarked for McDonalds and protects their original idea from others who would wish to copy it.  As Justice Alito stated, the government extending protection to ideas does not mean the government adopts those ideas as their own, in the same way that protection of material objects does not imply government embracement of their use or purpose.  For example, if someone steals a book on communism from a book store and is punished for their action, the government is not adopting communism as its official opinion.  On the contrary, it is rightly operating as a mechanism employed by the people to protect their property.

 

Justice Alito went on to state that government policies like the Lanham Act jeopardize the principles of America’s founding.  “No matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend.  And, as we have explained, that idea strikes at the heart of the First Amendment.  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.’”

The Slants’ victory is one which all Americans, right or left, should be willing to celebrate. The foremost principle of a free society is that the government protects its citizens’ rights and secures for them the freedom to live peaceably.  Part of this process means that safeguards must not only be put in place against action from other people, but also from the government itself.  The First Amendment is perhaps the most important of these protections we have in place, making it unlawful for the government to prohibit our freedom of religion, speech, press, assembly, or petition.  A government that suppresses the speech of its citizens and seeks to control their opinions and ideas deteriorates into the type of tyranny we witnessed in the 20th century under Stalin and Mao.

Readers at universities are all too familiar with the mistaken government assertion that it has an interest in squashing ideas that might cause offense to anyone.  The modern college campus, from its safe spaces to its biased orientation training, has made the riddance of offensive speech its goal, and in doing so has waged war against diversity of ideas.  Although things like trademark laws or safe spaces could easily be rejected as issues too small to be relevant, they stand as one small fish among thousands in the pool of growing government power which runs ever faster towards a rejection of our liberties.  Hopefully this Supreme Court ruling will be the first of many to come that will return our great nation to its original course.

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