CNN’s Christiane Amanpour doesn't know what hate speech is. The Slants' frontman Simon Tam, on the other hand, knows much more about protected speech. One of the things I tell my Constitutional Law students is that if someone says something like “hate speech isn’t free speech,” or “the First Amendment doesn’t protect hate speech,” they can safely write that person off as an ignoramus and ignore anything else they have to say.
Sadly, it seems that among those ignorami is a famous journalist who should be expected to know something about the First Amendment, CNN’s Christiane Amanpour. When interviewing fired FBI director James Comey, Amanpour asked why the FBI didn’t “shut down” the “lock her up” chants at Trump rallies on the grounds that they were “hate speech.” In Amanpour’s words, “do you in retrospect wish that people like yourself, the FBI, I mean, the people in charge of law and order, had shut down that language — that it was dangerous potentially, that it could’ve created violence, that it’s kind of hate speech. Should that have been allowed?”
One would think that a famed journalist would know that the FBI isn’t in the business of shutting down “hate speech,” and in fact that the federal government as a whole has no power to do anything like that. (Comey, to his credit, quickly corrected her, in fact). But these days, for knowledgeable talk about free speech, hate speech, and the First Amendment, you’re better off going to a rock star than to a famous journalist.
No, that’s not a joke. Last week at the University of Tennessee College of Law where I teach, I heard a really excellent talk by Simon Tam, frontman for the dance-rock band The Slants, and he made clear that he knew a lot about free expression. In fact, as he summarized his new book, he spoke more clearly and informatively than many law professors I have heard. Perhaps Amanpour should look him up.
You have a right to be offensive
Tam’s band had tried to register its name as a trademark only to have it rejected by the Trademark Office on the ground that it was offensive to Asians. (The federal trademark statute allowed the office to reject marks that tended to disparage or bring people into contempt.)
The Slants objected, noting that they were an all-Asian band that had played before lots of Asian audiences, and that literally no one had found it offensive. But the Trademark Office, relying largely on UrbanDictionary.com and a few white supremacist websites, felt otherwise and denied the mark as racist, even after The Slants presented elaborate evidence to the contrary.
The Slants appealed, getting pro bono representation from famed trademark lawyer Ron Coleman, but the case wound up turning on the First Amendment, rather than on the details of trademark law or the precise shadings of language. Even if some people somewhere might be offended by the name, the Supreme Court unanimously held, that didn’t matter. Under the First Amendment, you have a right to be offensive, and the government doesn’t get to withhold its benefits just because it’s worried that someone might not lik
e what you have to say or how you say it.
Government justice is disappointing
As Justice Alito wrote for the Court, “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.’”
Every member of the Court agreed that the government can’t use its power to exterminate views it regards as wrong or hateful. Nor was that a new holding, as the Supreme Court has made this point repeatedly in earlier cases on topics ranging from flag-burning to protests at funerals. “Hate speech” is a political slogan, not a legal term: It’s all just speech, and it’s protected whether you like the ideas or the expression or not.
Tam summed up his talk with another important point, which is that if you’re relying on government bureaucrats to give you social justice you’ll be disappointed. You may imagine that a bunch of Platonic Guardians will be deciding things, but in reality it will be a harried bureaucrat looking up things on UrbanDictionary.com. If you’re looking to make society better, you’ll need to look somewhere else, and maybe do some hard work yourself.
It’s good advice. Maybe I should do some hard work myself, and start a foundation to teach the First Amendment to journalists.
Glenn Harlan Reynolds, a University of Tennessee law professor and the author of "The New School: How the Information Age Will Save American Education from Itself," is a member of USA TODAY's Board of Contributors.