Supreme Court: Free Speech Means Free Speech

A year ago, Emily Jashinsky reported in The Washington Examiner:

After year of campus protests, Supreme Court reaffirms there is no hate speech exception to the First Amendment

It's a little puzzling that this was reported in the Opinion section rather than as a straight news, because it's mostly straight news, and the small bit of opinion at the end of the piece is easily edited.

In summary, the case "Matal v. Tam" concerns a dance band ("The Slants") whose application for trademark protection was denied under a Lanham Act provision prohibiting the registration of trademarks that may “disparage ... or bring ... into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a).

In a unanimous decision, the court upheld the First Amendment and declared the clause unconstitutional. The court unambiguously declared, "We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend."

Here's the court's actual decision [PDF]

Never mind speech that might offend. Unambiguously offensive speech is protected.

And that's how it should be. As has been mentioned before, popular speech needs no protection, and cannot be the reason for the existence of the Free Speech clause of the First Amendment. As stated by Justice Kennedy:

"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. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society."

In their decision, the court holds that the trademarks people choose for their businesses is private speech, not government speech; and that it does not become government speech due to the issuance of a trademark. It is therefore protected, and the disparagement clause of the Lantham Act is therefore unconstitutional.

The court further opines, "We need not decide today whether respondent could bring suit under §43(a) if his application for federal registration had been lawfully denied under the disparagement clause." This is because the disparagement clause itself is unconstitutional and may not now be used as a reason for denying a trademark. In other words, the issue is moot.

--==//oOo\\==--

What the Examiner's story fails to mention is that the members of The Slants are Asian Americans who chose the name to "reclaim" it and strip it of its negativity. In my own opinion, denial of the trademark itself constitutes the government telling a group whether or not they should be offended by the labels they apply to themselves. I see this as being blatant patronizing. Can you imagine telling a Black rapper he can't use the "N" word because he should be offended by his own usage of it? Same thing. 

Thin-skinned opponents of Free Speech should count their blessings. Many countries, including Western societies such as those of the UK and Australia, have no such Constitutional guarantees of protection.

The defense against offensive speech are two-fold: 1. You don't have to sit and listen to it, and 2. You have the same right to voice your own dissenting opinion. Opponents of Free Speech would do well to heed the words of an English author on this subject (often attributed to Voltaire):

"I disapprove of what you say, but I will defend to the death your right to say it."

-- Evelyn Beatrice Hall (1906)

I myself spent seven years in military service voluntarily defending this and other unalienable rights for people with whom I disagree on a great many things, so it warms my heart to see the Supreme Court affirm something that has been well understood from the very inception of this country until it was forgotten by ignorant academics who, to their everlasting shame, should know better.

As I mention above, this was decided and reported a year ago. So why am I blogging about it now? Because many of the people who were ignorant a year ago are just as ignorant now. And if it was shameful then, it's a bloody disgrace now. It's time to speak up and let others do the same.

North Korea

It astonishes me that people who ostensibly want peace are so stubbornly, obstinately opposed to it when it looks like they'll get it from someone they don't like.

I've never been a fan of Trump. You only have to look in the archives of this blog where I called him "unelectable". Obviously I was wrong on that point. But let's give credit where credit is due.

President Trump Nominated for Nobel Peace Prize by Norwegian Lawmakers

This has Trump opponents squirming, although by every objective measure... EVERY objective measure... Trump has earned the nomination solidly. Do not forget that this same prize was presented in 2009 to a former U.S. President despite having had no achievements warranting the award, as nominations for the award had closed only 11 days after he had assumed his office.

Trump, on the other hand, has Korea.

Now, we can cringe at his methods. But it's important to remember that previous efforts and previous methods failed... every single time. Albert Einstein is apocryphally credited with the observation, “The definition of insanity is doing the same thing over and over again, but expecting different results”. It's not lunacy to recognize lunacy and to take a different approach.

Trump's approach is outlined in a video, produced for an audience of one (Kim Jong-un), and presented at the beginning of the Singapore negotiations:


The New York Times decided to lampoon the approach with this opinion piece: Trump Made Kim a Movie Trailer. We Made It Better. Oh, if that were only true. But it's not. This edit was made by people who clearly don't understand... well... much of anything, and who allow their emotions and tribal politics to stand in the way of actual results. This attitude is exactly why none of the previous approaches have worked, so forgive me if I'm unimpressed by the flawed criticisms of those who have repeatedly embraced failure.

To understand why this video (and approach) is likely to work, you first have to understand who Kim Jong Un is, and understand what the end-game is. What is the actual goal?

Though Trump's opponents would like to cast him as simply a despotic tyrant, this falls far short of the full picture. Kim Jong-un did not subjugate his people. That was done decades before his birth, by his grandfather, Kim Il-sung; and it was carried on by his father, Kim Jong-il. Kim Jong-un was born into this dynasty in 1984, and was raised from birth to do the same. He has known nothing else. As the heir to a dynasty, Kim Jong-un does have the vanity which makes this sort of presentation effective.

North Korea development
compared to its neighbors

He is also someone who sees the vast difference in prosperity between his own country and that of South Korea and the rest of the world. He's not blind. And he actually wants that stuff. Again, the video targets those things that are important to him. He's the audience, not you. The fact that "you're not fooled" is a silly observation. It's not intended to fool you.

It's not intended to fool Kim Jong-un, either. And this is where it moves beyond mere propaganda.

The video tells the truth.

Although the options may not be as binary as depicted in the video, North Korea's present state isn't very far from the worst case as depicted. And South Korea's present state is very much like the best case as depicted. That's how effective sales pitches are done.. by showing the best possible outcome. By throwing away the nukes, opening the borders, and welcoming investment, North Korea can actually achieve exactly what the video promises. At the very outset of open relations and investment, labor costs in North Korea will be miniscule, and North Koreans can exploit that to raise themselves by their bootstraps, just as the South Koreans, Japanese, and many other Asian countries have already done. They will become prosperous and peaceful.

A taste of respect

Kim Jong-un wants Korea to be accepted into the family of nations. The way to do that is to do it. So we see the U.S. and North Korean flags side-by-side as a taste of the respect that Kim could have permanently should he change his ways.

This meeting in Singapore was intended to give Kim a realistic path to everything he wants in terms of material, culture, and respect. That path is peace.

And that's what we want, too. That's when we focus on our goals. If we were small and tribal, we'd insist on punishment being heaped on Kim Jong-un for the current state of affairs, and for the actions of his father and grandfather as well. But that will not get us to peace. So is it unfair to "let him get away with it" by casting a despotic ruler as "the hero of his people"? Well, think about it... if you're literally born into a position of ultimate power and you voluntarily decide to step back from that so that your people can benefit with jobs and money and comfort and prestige, then the label fits. And if you can persuade someone to do that, you deserve a Nobel Peace Prize.

Bad behavior hasn't gotten Kim anywhere. But good behavior must be rewarded, or you're just not going to get it. The commentators who opine that Trump is "giving away too much" fail to see the reality that Trump's not giving away anything that won't be returned. Opening North Korea to investment will yield profit. Not only will North Korea improve, but so will the investors. That's something that even Kim can see and our socialist-minded Left ironically can not.

If you look at that and still want to be small and tribal, so be it. But you're not proving your intelligence, and your derision is simply reflected back on you. You are easily ignored, as well you should be.

Nothing in life is guaranteed. This may not work. In part it depends on gaining the buy-in of small and tribal people. But it's far more likely to work than anything we've done so far.

Credit where due.

Bill Maher gets it. Watch this.