Saturday, June 24, 2017

walking on the slant

I thought I had had a stroke.

While walking on our local bike-jogging path, I was listing notably to port. It felt as if my ballast had shifted.

A closer look at the path reassured me. I was not stroking out. The path had a slant.

Admittedly, as you can tell from the photograph, the slant is subtle. Certainly, not as bad as the slope of our beaches that are steep enough to confound a Swiss cow. But it was noticeable enough that it slowed down my walking pace. More as a matter of interest, than as an impediment.

The path has turned out to be one of the best local government infrastructure improvements. Bikers, skaters, runners, joggers, walkers. It gets used all day -- and often by people who are simply commuting to and from jobs.

If it has a flaw, it is its foundation. We are on the beach. The beach means sand. And that is what the path rests upon. Sand. Or, rather, a combination of dirt, gravel, and sand. And because we usually get our fair share of water from the sky, the foundation has shifted. So has the path. It has a slant.

Up until earlier this week, "slant" was one of those words that those of us in polite society had learned years ago not to use -- even in the privacy of one's own bedroom. It was one of those words that has a very acceptable use (just as I have used it in the paragraphs above). But it also was a vulgarity for an ethnic group.

An Asian-American rock group decided it wasn't going to play that game. They wanted "to reclaim a term that was seen as a slur." So, they named themselves, not too subtly, The Slants, and applied for trademark protection with the federal government.

The Patent and Trademark Office threw itself in front of this Orient Express and said "stop." There has been a long-standing regulation that a trademark cannot be issued if it "[c]
onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." The federal pearl clutchers thought Slants disparaged Asians.

The Slants responded it was their slur and that the First Amendment of the United States Constitution allowed them to slur themselves. And, in that argument, was buried a poison pill for the vestigal virgins who protect us all from our own natures by telling us what we can and cannot say.

The Supreme Court, as you undoubtedly know, has now decided The Slants are correct. But the decision is nowhere near as interesting as the court's reasoning. The poison pill is loose.

Justice Alioto's opinion hones in on the nature of the dispute:

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. 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.”
The distinction is important. Even speech that is hateful is protected by the First Amendment. But that is not a surprise for anyone who has studied the jurisprudence of the First Amendment. Free speech is far more than allowing only speech that is popular.

Justice Kennedy, in his never-ending search for pragmatic remedies, got to the nub of the matter.

A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” ... 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.
There it is. In a free society, we do not react as the fascists and authoritarians of Cuba, China, Russia, or Venezuela do. We do not attempt to control ideas through legal restrictions. We believe that free and open discourse will lead to the truth. That is the very philosophy behind the First Amendment.

And it is the very antithesis of attempting to control opinions with the label "hate speech." The speech codes on many campuses, designed to carve out a "safe space" for students incapable of hearing opposing views, certainly are not part of the Supreme Court's announced philosophy. (And, yes, I do know that private colleges are not protected by the First Amendment.)

I have always been a liberal on matters of free speech. I remember being scandalized in high school when we studied the Supreme Court's 1940 flag salute case -- along with carving out other rather broad exceptions to the amendment's protection. It was there that I learned that anyone who says "I support free speech, but --" is really saying they support freedom of expression if they happen to agree with the expression.

Until last night, I had decided not to write an essay on this topic, even though I consider it to be one of the Supreme Court's most important decisions. What changed my mind was a movie.

I wanted to watch something funny. The choice was easy. Blazing Saddles. One of Mel Brooks's best movies. The movie never fails to lift my spirits because of its outrageousness.

Last night was no exception. I laughed my way through most of the movie.

And then it happened. When Sheriff Bart offers the help of the railroad workers to save the town from destruction (in exchange for a plot of land), Mayor Olson responds: "We'll give some land to the niggers and the chinks ... but we don't want the Irish."

Offensive? You bet. Hateful? Without question. Should the words be banned by the government? Only if we decide we are capable of building windows into men's souls.

I cannot imagine the movie surviving on many American college campuses -- or even being shown in some cities. Simply because of those two words.

The irony is that Mel Brooks specifically used those words to unmask prejudice, and then to disarm it with humor. Doing exactly what Justice Kennedy has described as the remedy to hate -- "
our reliance must be on the substantial safeguards of free and open discussion in a democratic society."

Now, I know the Margaret Dumonds of the world will not be happy until every sentiment that makes some people uncomfortable is shunted away in the closet. That road leads to masking the piano legs with doilies.

Rather than gasping and rioting, let's accept the conservative tenet that there is evil in the world and that it, like the poor, will always be with us. But let's marry it up with Justice Kennedy's liberal assumption that truth in a democratic society can be arrived at only through free and open discussion.

The Slants may even write a song about it. I'll bet some of the words may even offend someone. 

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