Monday, June 19, 2017

Supreme Court rules The Slants gets to keep its name

The Slants get to keep their name.

I'M NOT A LAWYER, a judge or law professor. I'm just a guy who grew up with other kids pulling their eyes back and yelling "ching-chong" at me.

I'm not even Chinese but I understand the intent of the invectives thrown at all east and southeast Asians. That's why I have trouble with the Supreme Court's decision allowing the all-Asian/American rock band to continue to call themselves the Slants, a racial slur hurled at Asians.


The U.S. Supreme Court ruled today (June 19) ruled unanimously in Matal v. Tam, the band's right to use a disparaging term is protected as a form of Freedom of Speech.
(EDITOR'S NOTE: This article has been edited (June 20, 9:30 a.m. PST) since its original version to include comments from Simon Tam and clarification of the legal arguments.)
"We grew up and the notion of having slanted eyes was always considered a negative thing," band leader Simon Tam said in January. "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 instead."

The U.S. Patent and Trademark Office based their opposition to the trademark because of a 70-year-old federal law prohibiting the registration of trademarks that “disparage” any “persons, living or dead, institutions, beliefs, or national symbols.”
Despite the 8-0 vote (Justice Neil Gorsuch did not vote because he was not on the court when the case was argued.) several opinions were rendered by the justices.

Such speech may be “hateful,” Justice Samuel Alito said, “but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate.”

And in any event, Alito continued, the disparagement clause sweeps too broadly because it applies to all disparaging trademarks, including those that disparage racists or sexists. “It is not an anti-discrimination clause,” Alito lamented dryly, but instead “a happy-talk clause.”


Kennedy concluded with a reminder that laws 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,” he noted, “our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

The band issued a statement on their Facebook page:
After an excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have won this case at the Supreme Court. This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves. During the fight, we found the Trademark Office justifying the denial of rights to people based on their race, religion, sexual orientation, and political views, simply because they disagreed with the message of these groups. To that end, they knowingly used false and misleading information, supported by questionable sources such as UrbanDictionary.com, while placing undue burdens on vulnerable communities and small business owners by forcing them into a lengthy, expensive, and biased appeals process. The Supreme Court has vindicated First Amendment rights not only for our The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination.
By claiming the word intended as an racial slut, the band believes it would lessen the impact of the insult.

"We know that irony and wit can neutralize racial slurs, because it shifts the dynamics of power." Tam told the New York Times. "It makes people check in and think, “Is this actually appropriate to use or not?” Prior to that, people just make assumptions.
So while I congratulate Mr. Tam and his bandmates for their victory and their dogged determination in this David vs. Goliath six-year legal Odyssey, I find myself struggling with that argument. N.W.A. (N-word With Attitude, you see, it is even difficult to write out the word) used the same argument but that hasn't lessened the hurtful impact when the word is uttered as TV comedian and host Bill Maher learned recently.

There have been numerous instances when non-African/Americans have used the word because they felt it was no longer taboo because they heard blacks use the word in referring to each other. However, when uttered by a non-black, the original connotations are still aroused.

The case Native Americans had against the Washington professional football team's use of a racial slur for its team name has been winding its way through the courts for years. The Slant's case may give an indication how the 4th District Court may rule. Other writers brought up the idea of Asians being used - once again - to drive a wedge between the so-called model minority and other minority groups.

The narrow legal grounds used by the Supreme Court to approve the Slants' use of the word as a trademark have no bearing in the court of public opinion - out in the streets, where people aren't likely to be making the distinction between trademark law and the language they use in everyday life; where comedians think its OK to make Asians the butt of their jokes and TV hosts malign Asian males and where non-Asians still pull their eyes back and yell "ching-chong" at the "slant-eyed Chinks." 

I won't feel any less hurt or angry just because the courts ruled it's OK for a rock band to be called The Slants.
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