“Native News Online” reports that the US #Supreme Court will hear the trademark case of Simon Shiao Tam who has an Asian American rock band named “The Slants.” Shiao Tam's trademark was initially denied under the 1946 Lanham Trademark Act on the legal ground that the name disparages Asian Americans. The Supreme Court will determine whether the Lanham Trademark Act is an unconstitutional violation of free speech. A federal appeals court has already ruled that it is. The case has significant implications for ongoing indigenous opposition against the Washington, D.C. #NFL team.
The Washington team's trademark was cancelled by the US Office of Patent and Trademark in 2014 on the ground that it disparages Native Americans. The cancellation was upheld in federal district court. The Washington team awaits another hearing in federal appeals court in the 4th Circuit in Richmond, VA. Indigenous popular opposition however, remains strong.
Recognition of hate speech vs. First Amendment absolutism
Proponents of the Washington R-word team name often assert the NFL team's First Amendment right of freedom of speech. This is problematic for a number of reasons. In the #Book “The Harm in Hate Speech” Prof. Jeremy Waldron argues against the First Amendment absolutism often encountered in the US legal community. Waldron argues that hate speech is real, and should not be recognized as speech falling under the protection of the First Amendment of the US Constitution.
The idea of freedom of speech is meant to apply to persons (i.e. human beings), not a corporation. Unfortunately, US law has enshrined the absurd notion of corporations as legal persons. First Amendment absolutists fail to recognize that there are already many forms of speech not protected by the First Amendment, such as sexual harassment, because they disparage historically oppressed groups like women. Hate speech is speech that poses a danger to society. Speech that disparages an entire group can and does lead to violence against them. The R-word is such speech. Violence has already been perpetrated against those who dare to oppose the Washington team. The R-word is just as offensive to Native Americans as the N-word is to African Americans. Its purpose is to dehumanize indigenous peoples into grotesque caricatures. Dehumanization leads to discrimination and often violence. First Amendment absolutists and supporters of the Washington team refuse to accept this reality.
False equivalencies; hate speech is not free speech
There are significant differences between Shiao Tam's case, and that of indigenous opponents to the Washington team.
Shiao Tam and his bandmates are themselves Asian Americans. They are using the band name “The Slants” as a humorous self-deprecating pun. The Washington team is not made up of Native Americans, yet it purports to represent and “honor” us despite massive popular opposition. Worse yet, the Washington team will parade around any Native American they can find who might happen to agree with them as a justification for their ongoing racism. This is nothing new. Those few Native Americans who may support the Washington team typically fall into one or two categories. One, they have not had the opportunity to have any kind of cultural or political education. They therefore identify with false symbols that appear to be representative of their culture, but in fact are not. The other category are those who accept money or favors from the Washington team in exchange for publicly supporting its continued use of a racial slur as its team name. Some are simply poor. The NFL team exploits their poverty to defend racism. Others are in fact sell-outs who know better. Our people have struggled against sell-outs since the beginning of European colonization. Those who would claim to speak for all of us by signing illegal treaties giving away our land and resources. These people do not represent us. These cases are not equivalent. Hate speech is not free speech.