A Different Slant on the First Amendment?


On Monday June 19, in the case of Matal v. Tam, a unanimous Supreme Court ruled yet again that the First Amendment trumps political correctness.

This time, though, the circumstances were a bit unusual. Simon Tam, an Asian-American musician, founded the first all-Asian-American dance-rock band. The band chose to call itself the “Slants” as a way of thumbing its nose at anti-Asian stereotypes and prejudices—such as slant eyes.

According to Mr. Tam, the name worked because it allowed these young, cutting-edge performers to talk about their “slant” on life as musicians of color, and also to pay tribute to those Asian Americans who had been using the racially-loaded term in a “re-appropriated, self-empowering way for about 30 years.”

Mr. Tam argued, sensibly enough, that “irony and wit can neutralize racial slurs, because it shifts the dynamics of power.”

I say “sensibly enough” because there are plenty of instances where derogatory terms have been adopted as badges of honor by the persons that they were meant to wound. Think of “Queer,” “Mick,” “Jock,” “Southie,” “Aggie”—or even “Methodist.” (It is often overlooked, but when John and Charles Wesley started a movement at Oxford to devote regular hours to prayer, Bible study, and helping the poor and unfortunate, they were derided as “Methodists” by their more worldly peers.)

Unfortunately for him, the U.S. Patent and Trademark Office disagreed with Mr. Tam’s argument. When he applied for trademark protection for the name of his band, he was refused on grounds that persons of Asian descent would be likely to find the term offensive.

Here in a nutshell is why the First Amendment should always trump political correctness. If government can ban any exercise of free speech because of the mere possibility that it may “offend” someone, how can we have free speech at all?

In challenging the government’s refusal of a trademark, Mr. Tam pointed out that his band had been touring for several years using the name “Slants” and they had not received a single complaint from Asian Americans. But the bureaucrats at the Patent and Trademark Office took the attitude that they knew better.

Fortunately, the Supreme Court set them straight unanimously in Matal v. Tam. Writing for the majority, Justice Samuel Alito said that the very idea that government may ban speech that offends “strikes at the heart of the First Amendment.”

In a concurring opinion, Justice Anthony Kennedy added, “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.”

In 1929, in the case of United States v. Schwimmer, Justice Oliver Wendell Holmes sagely observed that “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

Justice Holmes was right. If the First Amendment does not guarantee freedom for the thought that we hate, then no thought is safe.

HGordon

Hal Gordon, who wrote speeches for the Reagan White House and Gen. Colin Powell, is currently a freelance speechwriter in Houston. Web site: www.ringingwords.com. Like this post? Share with your friends using the button below! Also be sure to like PunditWire on Facebook. 

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