Wednesday, February 19, 2020
Last week US Congresswoman Jackie Speier and Congressman Jim McGovern introduced a resolution that would support the creation of an international court to fight corruption.
According to Human Rights Watch: "The World Economic Forum estimates that 5 percent of the world’s GDP is lost to corruption, and the International Monetary Fund blames it for US$1 trillion in lost tax revenue. And corruption can rob people of their rights. It can lead to failing healthcare and education systems, lack of access to clean water – all problems that force countless people to leave their homes and countries in pursuit of better lives. It can also corrode government itself, as corrupt officials often shield themselves from accountability by hijacking the judiciary and abusively silencing critics."
An idea originally proposed by Judge Mark Wolf, any attempt to fight corruption on a global level is a first step toward addressing a serious and massive human rights problem.
Wednesday, January 25, 2017
by Jeremiah Ho
Last week, the Supreme Court heard Lee v. Tam, a case in which an Asian-American rock band that calls itself “The Slants” is challenging its unsuccessful trademark registration application at the U.S. Patent and Trademark Office. (Arguments may be heard here.) At issue is whether the PTO’s determination that “The Slants” is disparaging under the Lanham Act correctly disqualified registration as a mark. As an attorney, the legal aspects of the case are fascinating enough. But as an Asian-American gay man, I find the language aspects of the case truly mind-boggling.
Of course, as a child—particularly when I first arrived in the U.S. in the 1980s—I certainly have been on the receiving end of racially-charged slant-eyed gestures on the school playground from my all-American classmates. As an adult, I think back on moments such as that or episodes of being asked by other children whether I had cat for dinner the night before as unwelcoming gestures that perhaps every person of color or minority status have had to endure in some form or another.
What Simon Tam, the band leader of The Slants, was trying to do was to overcome those moments of victimization. In a New York Times Magazine article that ran last week, Tam claimed that his band tries to celebrate the Asian-American experience and the name was a way of reappropriating the slur—in much the same way that other groups such as Dykes on Bikes or N.W.A. have done in the past. Already, the Federal Circuit had sided with Tam, finding that the disparagement clause of the Lanham Act was unconstitutional based on viewpoint discrimination theories.
Technically, Section 2(a) of the Lanham Act (the disparagement act) prevents the registration of trademarks comprised of “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.” In effect, Section 2(a) has blocked the registration of many trademark applications in the past that had contained racial slurs, swear words, and arguably vulgar designs since the act’s post-war inception.
What complicates this case even more is to see what can be gained if the disparagement clause under the Lanham Act is found unconstitutional by SCOTUS altogether for reasons of vagueness or for contributing to viewpoint discrimination by the government. The Lanham Act, governing trademark issues, was not designed as a challenge to the First Amendment by its drafters. Rather the Lanham Act regulates unfair competition as it pertains to trademarks and intellectual property. If the disparagement clause is found to be unconstitutional for reasons of vagueness or viewpoint discrimination or otherwise, wouldn’t such a ruling allow an organization such as the Washington Redskins to legitimately register and claim rights to a mark that has disparaged and is disparaging of Native Americans?
Perhaps the term “disparage” ought to be redefined to skirt viewpoint discrimination, but also include the subtle uses of language—subtleties that allow for instances of reappropriation or reclamation of a controversial term, such as the one Tam is attempting to reclaim, versus outright use of a slur in a mark that would legitimately marginalize a certain group of people, such as in the Redskins situation. (Application of The Redskins mark was recently rejected, but a SCOTUS ruling that rids the disparagement clause could reignite attempts at a post-Lee v. Tam application.)
Although personally I don’t like the use of slurs—whether linguistically as a weapon to put down someone else or as a symbolic form of reappropriation—I see the value of what Tam was doing by giving his band the name, The Slants. I can draw the analogy to an example of an oppressor using a knife as a weapon to physically subdue another human being. The knife here can assault, victimize, and rob another person of his or her dignity. Likewise, so can an oppressor’s use of racial slurs and hate speech upon a person who belongs in a group in which the slur or speech disparages or mocks. One way of viewing Tam’s use of The Slants is as if the victim, once held at knifepoint, has now taken back the knife and is using it on him- or herself. But that view misses the point (all puns intended) of reappropriation. Instead of the victim using the knife on him or herself, the victim is using the knife in a way that both empowers the victim and also changes the character or the bluntness of the knife. Each use of the word “slant” by Tam blunts its meaning. Gradually, the knife becomes useless as a weapon. Similarly, the slur gains other utility and loses its racial significance. When that happens, it should be a sign of progress. At the same time, this perspectives shows how language is constantly fluid and how it can change over time.
One could—and I do amusingly—look at this case as one that demonstrates how clumsy and obtuse the law sometimes can be at approaching the ironies of life and civility. But in this political age, when civility is seemingly becoming a lost art, the urgency of this case is ever more apparent. I hope that SCOTUS will find a solution somewhere in middle that allows The Slants to be registered but rejects examples such as The Redskins.
One final note: during those first couple of months when I started school in the U.S. and several of my white elementary-school classmates would come up and perform their slant-eyed gestures at me, I would always wonder what they were trying to do. It wasn’t until much later that I learned that such gestures were racial slurs. (And who’s to say that my first-grade counterparts knew any better or worse?) But I do remember that at that time, when I was brand new to this country and hardly spoke any English, I would see kids making their gestures at me and think to myself, “Boy, these American kids are so weird.” The joke was always on them.
Oral arguments for Lee v. Tam is here: https://www.oyez.org/cases/2016/15-1293.
Sunday, July 3, 2016
Elie Wiesel was our conscience and our memory of the Holocaust. He was voice for millions of the murdered because of the hatred and madness of one leader and his supporters. But also the Jewish citizens died due to the overwhelming silence of others. It is both easy and difficult to understand the fear of speaking out when neighbors are disappearing. Consequences of disagreeing with Hitler, as with other dictators, were and are severe and usually fatal. But that begs the question on how dictators ascend to national control in the first instance.
Anyone who read Night was no doubt haunted by the inhumanity. But one of the lessons Mr. Wiesel taught us was not to wait in confronting hateful conditions as they are developing. Politics rooted in hate can be powerful and, if not curbed, lead to the sort of unimaginable suffering that Mr. Wiesel endured. Not confronting hatred when it first appears permits inhumanity to grow. Failure to confront hatred opens the door for demagogues.
Tuesday, August 25, 2015
In two earlier posts, we reported on the Texas case where plaintiffs sought the release of children and their mothers from immigrant detention centers. After issuing her initial order, Judge Gee gave the Obama Administration an opportunity to respond as to whether it would comply with the terms of the Flores settlement and release mothers and their young children. The Administration responded that it planned no change in its current policy.
On Friday, Judge Gee entered her order. She ordered the release of immigrant children held at the detention centers. More than 1800 mothers and children are held in three detention centers in both Texas and Pennsylvania. The Los Angeles-based Center for Human Rights and Constitutional Law said that thousands of innocent children have suffered severe psychological and sometimes physical harm during their over year-long detention.
The government has until October 23rd to comply with the order.
One basis for the Plaintiffs' claims was that the detention centers are run by private corporations, not the government, as called for in the Flores settlement. While it is noted that the Texas centers have gyms, schools and other amenities, a prior post reported that the centers are often very cold and the women and children are provided only one aluminum blanket each, which is inadequate to keep them warm.
The administration has not yet announced if it will appeal Judge Gee's decision.