Thursday, July 27, 2017

Civility Gives Us Hope

Co-Editor Jeremiah Ho completes his three part series on civility with this post:

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by Jeremiah Ho

Sometime between my second post on civility and this present one, things changed a bit regarding our need for civility in the national consciousness.  First, we saw the shooting of Republican congressional leaders at a baseball field while practicing for the annual Congressional Baseball Game—a terrifying event, seemingly motivated by partisan hate, which resulted in the injury of Senator Steve Scalise, the House Majority Whip.  Immediately after that incident, acknowledgment for civility in the politics and national debate of our times emerged—but only for a few days.  Now, as the Senate is headed into this new chapter over heath care, the climate in politics is back to divisiveness. 

Another event was the Supreme Court’s decision of the trademark disparagement case, Matal v. Tam, which involved an Asian-American rock band, “The Slants,” who had been denied official trademark registration of their name because the USPTO had decided that such a name disparaged Asian-Americans. The rock band disagreed with the rejection of their application, claiming that their use of “The Slants” was not intended to disparage but was a form of empowerment and cultural reappropriation over the racial slur.  I had written about the case earlier this year after arguments were made at SCOTUS.   In that post, I had expressed my hope that the law would be settled in a nuanced way that allowed similar kinds of critique and empowerment in trademark registration but would also recognize true disparagement and reject offending trademarks accordingly.   

Now I don’t disagree with Justice Alito’s opening remark in his majority opinion in Matal v. Tam that “[s]peech may not be banned on the ground that it expresses ideas that offend.”  Based on that principle, I also can rationalize how he rendered that the disparagement clause of the Lanham Act violates the First Amendment.  His decision would ultimately allow “The Slants” to be registered as a mark, but also allow the Washington Redskins football team to continue to keep “Redskins” as its mark.  But there’s a difference that’s amiss in the Matal v. Tam decision between protecting speech that offends and has little value (and I don’t mean value as in dollar signs here, which is what some would argue is ultimate deciding value that matters), and protecting speech that offends but has the potential to provoke new and worthy ideas and stimulate debate that a society invested in a liberal project would be naturally inclined to accept.  With The Slants, their use of the racial slur as an Asian-American band gives them empowerment.  The irony provides postmodern or critical legal scholars ample commentary about Asian-American visibility in the American society, past and present, and changes for that visibility, whether or not it is happening today, whether or not—borrowing from the LGBTQ world—“it gets better” or “is getting better.”  With the Redskins, their use of the pejorative has much less critical power.  It’s a brand, a moniker that has been used for decades with lots of economic capital tied to it.  But it does not help us answer whether or not things for Native Americans have gotten better.  It reminds us of the onerous past.  Yes, it is offensive and mocking, but not contributing to a bigger social dialogue or to social value in general.        

If trademarks that disparage can be permitted in the marketplace, then negative, anti-progressive sentiments, such as hate, prejudice, and bigotry, can be commodified much more easily.  With the broadness of Matal v. Tam, there’s more permission now for that on such things like T-shirts, store fronts in shopping malls, and cans of beer at the grocery store.  Prior to Tam, we saw a lot of positive corporate commodification on social issues such as same-sex marriage.  The day that SCOTUS released Obergefell v. Hodges, many corporate entities, from national department store chains to credit card companies, placed “Love Wins” in their temporary marketing.  Will we now see more of the opposite?  I don’t know.  But it’s possible now that SCOTUS has seemingly given permission for incivility.   

As I see it, we are now more apparently within a situation that is similar to the old grammar-school lesson between the meaning and usuage of the words “may” and “can.”  Just as you can do something, doesn’t mean you may do it.  Or perhaps the situation is closer to the difference between “can” and “ought.”  Just because you can say certain things, doesn’t mean you ought or should to say them.

If that’s the case, then in the aftermath of Matal v. Tam, again it’s civility and prudence in practice that’s the tiebreaker.  There will be financial considerations for some businesses that will restrain them from creating disparaging marks.  But an ethics of civility might also allow us to focus on what has social value or probe offensive ideas in ways that does not take us off track into hate and violence.  It would help groups within the current population process through their strong, visceral emotions and get to a place where they don’t feel so left behind so that the only way to change is to lash out at others or pass laws that lash out on their behalf (see for instance, the Texas anti-LGBTQ Bill SB3).

Because one thing that civility encourages is the search for authenticity and it places authenticity over immediate, rash, and reactionary inclinations.  Civility is what allows a writer and activist such as James Baldwin to say “I am not your negro” and to debate what that means in hopes to convince others to change existing inequalities in our world.  Originally, this part three on civility was going to feature a review of the recent film I Am Not Your Negro based on Baldwin’s unfinished book, Remember This House.  The importance of civility features in the background of the film—in part to show what happens when there is no civility in national debates but also the limitations of civility if it is not fully engaged in society.  I wholeheartedly urge people to see this film if they have not already done so.  The film is a good example of how civility fosters the authenticity of subordinated groups in expressing truth when they are often marginalized by the dominant group and when their journeys or statuses are mischaracterized inadvertently by the most well-intentioned progressives.  Within diversity, civility plays a necessary element to allow authenticity that leads to transcendence.  At the end of I Am Not Your Negro, Baldwin states to the camera in an interview clip that the future of race relations in America depends in part on a discussion within the dominant white culture on the constructed binary between whiteness (which Baldwin links to power) and blackness (which Baldwin characterizes with the “N” word).   Baldwin hints that it would be a dangerous, incendiary, subversive dialogue.  But the thought of that dialogue or rumination taking place in white culture—with the hope that it would result in some recognition of the wrongs against African-Americans in the past—implies that civility would play a part in starting that rumination and facilitating it toward a progressive end.  Otherwise, such a dialogue is not a non-starter and you can’t reach authenticity.  Thus, civility is what props up the continued underscoring of dignity in human rights debates.  Without civility, there is singular chaos and violence, and dignity would not be perceived in ways that authentically allows for the inherent worth of human beings.  Rather dignity would be defined relative to a hierarchy promulgated by a dominating group.  Civility gives us hope.              

http://lawprofessors.typepad.com/human_rights/2017/07/civility-gives-us-hope.html

Jeremiah Ho | Permalink

Comments

"But it’s possible now that SCOTUS has seemingly given permission for incivility."

SCOTUS started to give permission for incivility in (symbolic) speech with Stromberg v. CA in 1931.

Then in 1964 it affirmed that incivility in speech when Justice Brennan wrote, “Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open[.]”

Justice Brennan affirmed that incivility with speech by striking laws that disallowed the desecration of the U.S. flag in Texas v. Johnson (1989). You and many veterans along with many social conservatives consider such anti-U.S. speech uncivil, but such people simply have to deal with it. Such incivility in speech was celebrated back then by progressives, and such incivility in speech should be celebrated now, not suppressed in Orwellian fashion as suggested by your post. Or should the genre of acerbic satire be banned too in the name of civility?

Posted by: whatever | Jul 31, 2017 2:15:01 PM

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