The First Amendment and the Freedom to Offend

All the Constitution does is to recuse government from tilting the scales of debate. The rest is up to us.

This week the Supreme Court decided, in a rare unanimous ruling, that the Trademark Office of the U.S. Commerce Department could not deny trademark protection to the wry, in-your-face, potentially offensive (if you have no sense of humor) name that an Asian-American synth-pop band had chosen for itself: the Slants.

Take a blatant racial slur and turn it into a point of ironic pride (like “queer”), forcing your mostly white audience to acknowledge its biases in the process of invalidating them — brilliant. Deserving of a trademark, and maybe a Grammy.

Predictably, though, the decision, which invalidated the Trademark Office’s “[anti-]disparagement clause” as a violation of the First Amendment’s prohibition of laws infringing the freedom of speech, was immediately hailed by conservative pundits like the Wall Street Journal’s Daniel Henninger as a body-blow to political correctness, a stalwart and much-needed defense of such retrograde (and far less clever) forms of speech as the Cleveland Indians’ “Chief Wahoo” caricature and naming the football team of our nation’s capital the Washington Redskins.

That even the liberal wing of the Court joined in the ruling is proof to Henninger that “free speech diminishers” (not the catchiest label, perhaps) within the “exterminating left” (Terminix liberals, anyone?) have become a civilian Gestapo that will “pocket any concession and roll forward toward the next target” and that their “silencing elements” must be stopped. “Free speech traditions are under pressure,” he laments, “on campuses, in high schools, in the media, in the streets and in sports.” “Agree to delete Chief Wahoo…and centuries of Western art will be heading to the furnaces….”

Previously in these pages we’ve pointed out that, particularly in the groves of academe, the left is doing the right’s job for it by suppressing a truly free exchange of ideas. In the age of Trump it’s become de rigueur to disparage “political correctness” as a vast left-wing conspiracy not only to suppress speech, but to diminish liberty across the board, despite the fact that the phrase was originally coined by liberals in self-mockery of their own often insincere posturings and has only recently been appropriated by the right as an all-purpose ideological insult.

But leaving aside Henninger’s brand of over-the-top right-wing paranoia (Lordy, I wish the left were half as powerful as he fears), there’s a failure of Constitutional logic in conservatives’ conflation of the First Amendment’s prohibition of laws infringing free speech (which the Slants decision reaffirmed) with the protection of specific kinds of speech. The First Amendment does not create a right of stupid speech; it merely prohibits Congress from making laws to prevent it, on the premise that the people, speaking freely, will sort out over time what is stupid and what is worthwhile.

There is likewise no First Amendment protection for words that offend. Henninger and his fellow conservatives may not like the fact that “informal silencing elements” and “shaming tactics” are being brought to bear to extinguish Chief Wahoo and other widely perceived expressions of racism and sexism, but what they fail to see is that those tactics, strident though they sometimes may be, are as much a product of the First Amendment as the existence of Chief Wahoo in the first place. The First Amendment guarantees not that there will be a “safe space” for whatever outlier bias finds expression, but rather that there will be none, just as there is none for the cherished ideals of liberalism, nor, as we’ve seen, for the historical norms of Presidential speech. All the Constitution does is to recuse government from tilting the scales of debate. The rest is up to us.

The First Amendment reminds us that the Founders believed in the long game, that from the clash of unfettered ideas and the rough-and-tumble of free argument, a democracy would eventually sift good ideas from bad ones. It directs that Congress will “make no law” restricting free speech and a free press, not that we will make no fuss. It allows speech that isn’t worth listening to, and presumes that we’ll know it when we hear it. It represents an underlying belief in a meritocracy of ideas, not an abandonment of moral and intellectual judgment. It provides no guarantee whatsoever that speech that offends won’t suffer that judgment, much less that it will be preserved. All it guarantees is our freedom to try to persuade one another with words.

I have no doubt that, fifty years from now, Chief Wahoo and similar manifestations of our residual race bias will be regarded with the same incredulous embarrassment with which we regard the blackface minstrel shows of the 19th century. And we will have the First Amendment to thank for it.

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