Naming things and rights

Thu Aug 11 19:38:19 PDT 2005

Of course the First Amendment allows a great deal of hate speech that we 
don't want to see happening every day, especially not in university 
stadiums open to the public and on tv.

I suppose we could postulate a private university in which half-time 
shows featured cross-burnings, flag-burnings, draft-card burnings, 
bra-burnings, and swastika-armbanded storm troopers parading in front of 
the grandstand to inspire the team and for the entertainment of the 
students and alums, who presumably go in for that sort of thing.

Had I phrased my query as to what right one has to continue to insult 
people - members of the public at a university gathering who prefer not 
to be insulted or caricatured - in private, or in a non-publicly funded 
institution, then we might have reached the more challenging question, 
which is by what (moral) right do we continue to insult and caricature 
the minority portion of a group or culture that makes out a plausible 
claim to be genuinely insulted.  This lets out the handful of claimants 
as to whom we may think they are playing games of bullying in the name 
of political correctness.  It MAY also make irrelevant the fellow 
tribe-members whoclaim that absent the caricature they'd get no notice 
at all, and any notice is better than none.

My favorite example, from a documentary on the U. of Illinois 
controversy, is the Native American woman who takes her son to a game 
and must endure the fake Indian in a fake costume, doing a fake dance, 
waving a fake tomahawd, and singing a fake song.  She gets upset at 
having to explain to her son what's wrong with all this hoopla 
caricaturing their people and culture.  Assuming that she's genuinely 
upset, and has a genuine right to be upset, isn't she entitled to mount 
a protest and isn't the university obliged to heed it and cut out the 
practice.  You can substitute for Indian any other culture, ethnicity, 
or religion capable of being mocked in that fashion.

I don't see why the university president, board, or athletic director 
can't put a stop to the practice without falling afoul of the free 
expression guaranty, as a matter of common sense based on the public 
nature of the display and the harm (which is part of the given) 
inflicted on innocent viewers.  Why insult generally in public when one 
would probably not insult the mother and child to their faces if alone.  
Hitler practiced group disparagement and today Germany bans certain 
anti-ethnic hate-mongering, although we don't.

Suppose the state or federal governments told a university that is open 
to the public that it will be defunded if it continues to inflict injury 
by insulting minority members of the public by caricaturing them or 
elements of their culture.  Can't do that because of RAV v. St. Paul, 
content discrimination, vagueness, breadth problems?

Suppose the board says we must not do this.  Closing ones own mouth, I 
should think, is different than having gov't do it for you, meaning to 
you.  Yet the expressor would claim that his FA rights have been 
obstructed by a gov't funded public entity, a university, assuming it is 
open to the public and receives some public money.

Is the university itself unable to protect the mother and child?

rs

Volokh, Eugene wrote:

>	The constitutional law answer, if this were (say) a "hostile
>public accommodations environment" lawsuit against such a team (or, more
>controversially, the cancellation of the Washington Redskins trademark),
>is "the First Amendment."  Given that the NCAA is not a state actor, of
>course, the issue isn't really a matter of legal rights.
>
>	But in any event, I should note that a seemingly scientific
>Sports Illustrated survey reported on p. 66 of the Mar. 4, 2002 issue (n
>= 351 American Indians) reported the following:
>
>	"Asked if high school and college teams should stop using Indian
>nicknames, 81% of Native American respondents said no.  As for pro
>sports, 83% of Native American respondents said teams should not stop
>using Indian nicknames, mascots, characters and symbols.  Opinion is far
>more divided on reservations, yet a majority (67%) there said the usage
>by pro teams should not cease, while 32% said it should.  Asked if they
>were offended by the name Redskins, 75% of Native American respondents
>in SI's poll said they were not, and even on reservations, where Native
>American culture and influence are perhaps felt most intensely, 62% said
>they weren't offended.  Overall, 69% of Native American respondents--and
>57% of those living on reservations--feel it's O.K. for the Washington
>Redskins to continue using the name. . . . Only 29% of Native Americans,
>and 40% living on reservations, thought [the owner of the Redskins]
>should change his team's name."
>
>	Naturally, there are possible flaws with many surveys.  But if
>the survey is right, then it suggests that the question is subtly
>different -- it's "by what right does one continue to use terms that
>some members of the group find offensive, but that a majority of the
>group finds not to be offensive, and that a majority of the group thinks
>it's OK to keep using."  (It may also matter whether the term has often
>been used as a pejorative; for instance, I'm not wild about the
>Redskins, though I think there's a constitutional right to keep using
>the name free of government restriction or government discrimination in
>the administration of the trademark system, but I find the arguments
>against using other Indian-related team names to be quite weak.)
>
>	Eugene
>
>  
>
>>-----Original Message-----
>>From: conlawprof-bounces at lists.ucla.edu 
>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bob Sheridan
>>Sent: Thursday, August 11, 2005 4:17 PM
>>To: Bradford P. Wilson
>>Cc: conlawprof at lists.ucla.edu
>>Subject: Re: on the question of naming things
>>
>>
>>The issue comes up again in another context, that of the NCAA 
>>prohibiting Indian, oops, Native American names for athletic teams:  
>>Seminoles, Illinois, etc.
>>
>>These names acquire what seems to be a vested interest among some in 
>>continuing to use words that are offensive to those described or 
>>caricatured. 
>>
>>My question is, by what right does one continue to use 
>>offensive terms 
>>after one has been told that they are offensive or insulting?
>>
>>I ask it here.
>>
>>rs
>>
>>
>>
>>Bradford P. Wilson wrote:
>>
>>    
>>
>>>*Nelson's point is well taken.  I was using the term "legitimate" in
>>>the sense of "legal".  The description of Scalia as a 
>>>      
>>>
>>homophobe struck 
>>    
>>
>>>me as preposterous, for the reasons Nelson and Matt Franck have 
>>>mentioned.  Maybe I should take this opportunity to say that the 
>>>recent posting describing Roberts's advice on congressional control 
>>>over Supreme Court jurisdiction as "troubling" is itself 
>>>      
>>>
>>troubling.  
>>    
>>
>>>The Supreme Court has itself long held that the "exceptions clause" 
>>>allows control by Congress of the Court's appellate jurisdiction.  
>>>Roberts is about as conventional as one can be on the 
>>>      
>>>
>>subject.  What's 
>>    
>>
>>>troubling?  Brad Wilson*
>>>
>>>      
>>>
>>--------------------------------------------------------------
>>----------
>>    
>>
>>>*From:* Nelson Lund [mailto:nlund at gmu.edu]
>>>*Sent:* Thursday, August 11, 2005 6:43 PM
>>>*To:* Bradford P. Wilson
>>>*Cc:* conlawprof at lists.ucla.edu
>>>*Subject:* Re: on the question of naming things
>>>
>>>    I'm not sure you're right, Brad. Part of the agenda pursued by
>>>    some seems to be a form of moral bullying in which those who use
>>>    neutral, non-judgmental terms like "homosexual" are accused of
>>>    being "homophobes," so that they and others will be pressured to
>>>    use alternative terms that connote approval of homosexual
>>>    behavior. This kind of bullying certainly is and should 
>>>      
>>>
>>be /legal/
>>    
>>
>>>    in a free society, whether or not it effectively advances the
>>>    agenda of those who use the technique. But I'm not sure it's
>>>    "perfectly legitimate."
>>>
>>>    Nelson
>>>
>>>
>>>    Bradford P. Wilson wrote:
>>>
>>>      
>>>
>>>>    *I've been following the discussion of whether the use of the
>>>>    term "homosexual" is pejorative, or whether it isn't but
>>>>    shouldn't be used because of current sensibilities of 
>>>>        
>>>>
>>many people
>>    
>>
>>>>    whom the term accurately describes, and so forth.  It 
>>>>        
>>>>
>>may be that
>>    
>>
>>>>    there's a generational consideration here.  Someone 
>>>>        
>>>>
>>mentioned the
>>    
>>
>>>>    "old-fashioned" way of putting things.  If the use by
>>>>    old-fashioned people (e.g, older people) is innocent of moral
>>>>    baggage, it's hard to get in high dudgeon about it, 
>>>>        
>>>>
>>isn't it?  My
>>    
>>
>>>>    roommate and best friend in college, when he had gained my
>>>>    confidence, let me in on his secret, describing himself as
>>>>    homosexual.  This was circa 1970.  I don't believe he 
>>>>        
>>>>
>>would today
>>    
>>
>>>>    take offense at his self-description.  I rather think it the
>>>>    better word to use in a juridical context in which the 
>>>>        
>>>>
>>judge does
>>    
>>
>>>>    not think it proper to comment on the morality of the person or
>>>>    the behavior being described.  Here is the OED on 
>>>>        
>>>>
>>"homosexual":  *
>>    
>>
>>>>    ** 
>>>>    *A.* /adj./ Involving, related to, or characterized by a sexual
>>>>    propensity for one's own sex; of or involving sexual activity
>>>>    with a member of one's own sex, or between individuals of the
>>>>    same sex.
>>>>     
>>>>    *No doubt many of you are familiar with DuBois's 
>>>>        
>>>>
>>letter to young
>>    
>>
>>>>    Roland Barton in 1928, when DuBois was 60 years old (and old
>>>>    fashioned?), defending the use of the word "Negro".  He
>>>>    acknowledged that there were historical reasons for Barton to
>>>>    dislike the word.  Still, given the "wide and 
>>>>        
>>>>
>>continued use" that
>>    
>>
>>>>    has rendered in the course of time many a customary name
>>>>    accurate, "'Negro' is quite as accurate, quite as old and quite
>>>>    as definite as any name of any great group of people."*
>>>>    ** 
>>>>    *How does he conclude?  "Get this then, Roland, and get it
>>>>    straight even if it pierces your soul: A Negro by any 
>>>>        
>>>>
>>other name
>>    
>>
>>>>    would be just as black and just as white; just as ashamed of
>>>>    himself and just as shamed by others, as today.  It is not the
>>>>    name--it's the Thing that counts.  Come on, Kid, let's 
>>>>        
>>>>
>>go get the
>>    
>>
>>>>    Thing!"  That's not advice for the judge, in my 
>>>>        
>>>>
>>opinion.  But it
>>    
>>
>>>>    /is/ advice for those with an agenda that it is perfectly
>>>>    legitimate to pursue in a free society (as Justice Scalia makes
>>>>    clear in his dissent in Lawrence).  Brad Wilson*
>>>>
>>>>------------------------------------------------------------
>>>>        
>>>>
>>----------
>>    
>>
>>>>--
>>>>
>>>>_______________________________________________
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>>    
>>
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>>>>
>>>>        
>>>>
>>>-------------------------------------------------------------
>>>      
>>>
>>----------
>>    
>>
>>>-
>>>
>>>_______________________________________________
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>>>To subscribe, unsubscribe, change options, or get password, see 
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>>>
>>>Please note that messages sent to this large list cannot be 
>>>      
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>>viewed as 
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>>>private.  Anyone can subscribe to the list and read messages 
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>>>
>>that are 
>>    
>>
>>>posted; people can read the Web archives; and list members 
>>>      
>>>
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>>    
>>
>>>or wrongly) forward the messages to others.
>>>
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>>>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
>
>  
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