A Journal of the Plague Year 2020–chapter 101

by HardyGreen on June 25, 2020

“Chinatown dance rock” group “The Slants.”

Wednesday, June 24

Emily has been taking online Continuing Legal Education courses. (All lawyers must accumulate 24 CLE credits per year, and she now has 14.) Most of these are dull, little videoed lectures delivered by lawyers who should, in many cases, avoid all microphones. I ask her if she chooses the lectures based on their potential for humor. No, she says, you generally cannot tell what the tone will be.

A case in point is the course she just took. “Government Regulation of Hate Speech” turns out to be a discussion of cases involving outrageous branding and trademark law. Could a San Francisco girl-biker group trademark its name, “Dykes On Bikes”? What about an Asian rock band, “The Slants”? Are these names invidious and thus undeserving of intellectual-property protection? What protection does trademark afford such groups, anyway?

This course was a bit like a George Carlin routine. There is something inherently funny about discussing an outrageous subject from a bureaucratic or legalistic perspective. That was the nature of Carlin’s classic monologue “Seven Words You Can Never Say on Television.” The monologue gave him an excuse for saying the words—shit, piss, fuck, cunt, cocksucker, motherfucker, and tits—again and again, on television.

Carlin was arrested in 1972 for delivering the monologue. In 1978, the U.S. Supreme Court considered whether a radio broadcast of Carlin’s monologue merited an F.C.C. complaint that could have resulted in penalties against the station. 

According to The Atlantic, “The majority decision stated that the FCC was justified in deciding what’s ‘indecent,’ saying the Carlin act was ‘indecent but not obscene.’ The Court ruled that because Carlin’s routine was broadcast on the radio, during the day, it did not have as much First Amendment protection.”

Years later, you still couldn’t say the forbidden words on broadcast TV. But the rise of anything-goes cable TV along with the Internet has made the ruling pretty much moot.

Hate speech is another matter. Defamatory words are not allowed in trademarks, but violations of the First Amendment aren’t allowed either. In the case known as Matal v. Tam, the Supreme Court, in an opinion written by Justice Samuel Alito, ruled the Trademark Act’s clause regarding disparaging language was a violation of the First Amendment. Thus the group could register the racist slur “The Slants” as its name. (FYI, the group has a well-regarded album “Slanted Eyes, Slanted Hearts.”)

I’m looking forward to seeing a YouTube video of these musical folks. Dykes On Bikes is inherently funny too. I said to Emily that of course they are based in San Francisco—had they been from Des Moines, they’d have felt compelled to move to the Bay Area.

Dinner: leftover balsamic chicken with mushrooms, couscous, and a lettuce and avocado salad.

Entertainment: Episodes from season two of Broadchurch.

Leave a Comment

Previous post:

Next post:

Google Analytics