A New Slant on Hate Speech

the slants

The United States Patent and Trademark Office is refusing trademark protection to a Portland, Oregon based rock band called The Slants. Apparently, they believe the name the band is seeking to protect is disparaging to Asians.

When I first heard about this I wasn’t sure what to think. On one hand, it seems like a marker of progress that the U.S. government would deny trademark protection of a racial slur. But, on the other, this sounds like censorship, right?

Wrong. The fact that trademark protection is being denied doesn’t mean the group can’t use the name. This isn’t censorship. This is a struggle over protecting a business asset. So maybe this isn’t such a bad thing, right?

But here the rub. The Slants are Asian Americans. And the guys gave themselves the name as a defiant gesture against racially disparaging slurs.

I found that aspect of this case annoying. But what really infuriated me is this. Our government is fighting with an Asian American rock band over whether or not they can trademark a name it apparently finds offensive. Meanwhile, our Supreme Court just took down key voting rights protections that were instituted in order to secure the right to vote of people of color in parts of the country where there has been, and clearly continues to be, a demonstrated pattern of intent to prevent people of color from exercising this most basic American right.

Our government also allows racial profiling in law enforcement by upholding a federal legal standard that says that racism is only present in law enforcement if it is explicit. So, in other words, if a cop stops you on the street and says, “halt, I’m stopping you for no reason other than that your race makes me suspect you of criminal activity!” you’ve got ‘em dead to rights. But, if you’re among the vast majority of people subject to racial profiling in cases where the cop doesn’t name your race, you don’t have a case.

Here in New York, more than 85% of the millions of individuals stopped and questioned by New York City Police over the past several years were black or Latino. New York City has broken one of the simplest puzzles in law enforcement. You can target people by race without naming them by race. And because not naming people by race protects you from liability, you can conduct racially motivated stops by the millions before the aggregate impact of all of those stops makes you vulnerable to legal scrutiny.

Our government even continues to fund and sanction the New York Police Department despite the fact that they have been secretly spying on American citizens because they are Muslims. The spying included whole mosques, regardless of there being no evidence of illegal activity.

And our federal government denies work visas and basic worker protections to undocumented immigrants while allowing the businesses that employ them to profit by their labor. What is it if not racial discrimination to allow xenophobic, nationalistic, and racially discriminatory immigration policies to stand while also allowing employers to keep the profits they are earning from the labor of workers made vulnerable to mistreatment by those same policies?

That same federal government won’t allow us to seek remedies for racial inequity that explicitly name race. To name race and create programs to address the specific disadvantages created by racism on people of color is considered unconstitutional.

Welcome to post-racial America, a country ruled by the contradictory and anti-democratic logic of colorblind racism. Our federal government is wasting public resources fighting an Asian American rock band over whether or not they can call themselves The Slants, an act that does nothing to increase or perpetuate the racial disadvantages suffered by the group supposedly maligned by the name. And all in order to address a problem of racial bigotry our government seems to think guides us while choosing words to describe racial groups but magically skips over us when we engage in more substantive practices affecting those groups like administering elections, policing our neighborhoods, and setting their wages and working conditions.

 

 

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13 Responses to A New Slant on Hate Speech

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  1. Simon Tam October 14, 2013 at 3:22 pm #

    Not to mention that the very basis for the Trademark decision was based on race: http://www.8asians.com/2013/02/22/slanted-process-us-trademark-office-says-anyone-but-asians-can-trademark-the-slants/

  2. Chanda October 14, 2013 at 3:26 pm #

    Maybe I’m biased because I’m married to a federal civil servant, but I am failing to see the line drawn between whoever in the USPTO is making this decision and SCOTUS. For better or for worse, unless SCOTUS has ruled that USPTO’s employees must do or must not do something that relates to this trademark case, the two have no relationship with each other. It’s also worth mentioning that almost all USPTO employees are non-political administration-independent appointments. Unless the Obama administration has made a directive that is somehow impacting this case (I doubt it), again, this is just someone who thinks they are doing the job they were hired for, without regard to what the higher ups are doing.

    It may be that I am sensitive to the aggregation of civil servants (the analysts at USPTO) in with political appointees (SCOTUS justices) because right now the former are all getting screwed by a whole bunch of the latter (the House majority). But I think we should be careful in drawing those tenuous connections. It is not the USPTO analyst’s job to deal with voting rights, government surveillance, and a whole host of other things.

    I agree that the people who are ultimately in charge should be directing more resources toward safe guarding our rights (especially since right now they seem hell bent on taking them away). But, that’s not USPTO person’s job. That’s up to the President, the DoJ, SCOTUS, Congress and a variety of state and local elected/politically appointed officials.

    The analyst is probably making a bad choice here, of course. But I’m just not compelled to see that bad choice as connected to SCOTUS’s disastrous choices. In a scenario where this analyst was making the right choice (the band was all white dudes, for example), would we be complaining about how the analyst is wasting their time fighting when the government has other, conceivably bigger, problems?

    • Scot Nakagawa
      Scot Nakagawa October 14, 2013 at 4:12 pm #

      I see your point. But, my, perhaps poorly made, point was not about the USPTO person, or at least that wasn’t where I wanted to go. I was trying to make the point that this is how laws regarding race and racial defamation get enforced. We can call something defamatory-totally within the law and penalize people for it, but only if it is explcit. As long as you don’t make it explicit, you can get away with it because race specific remedies to racism, whether explicit or not, are unconstitutional. So, what it boils down to is that the trademark office is put in the position (though certainly constitutionally questionable on the basis of the fact that the association between the term and the race of the person applying for the trademark seems to be what is really at issue here) of denying a trademark because the standard we live by dictates that you can’t disparage people based on race, but you also don’t have a strong legal basis for making a claim of racial discrimination unless race is explicitly named, and you also can’t craft solutions to racial inequity that are race specific. Legally, this stuff actually is all tied together with the connective thread being that the law cannot tolerate nor acknowledge race explicitly, even while implicit racial bias and even covert racism is often at work in shaping public policy and practices.

      But, as I said, I get your point. I also certainly hope that government employees don’t read this as an attack. As a former government employee in the health and human services field, I get that the situation is complicated and I didn’t intend to make a direct association between the trademark office and SCOTUS. Clearly, we know there are differences between these agencies. Where they are alike, is that they all have to function according to the same federal standard.

      As an aside, it does appear that the trademark office diverged from the federal standard in this case. I’m no longer, but they seem to have made this pretty explicit in their own words here – http://www.jdsupra.com/legalnews/ex-parte-appeal-brief-of-simon-tam-of-th-95764/

  3. Ben Efsaneyim October 15, 2013 at 4:34 am #

    Scott,

    Just because the government is erratic in its attitude towards race and its enforcement of such policies, it does not follow that there is an inherent problem with its opposition to the Slants’ request. Is it the government wasting resources on this, or is it the band in question that is bringing an issue of no great import to the government and asking it to waste resources considering it?

    I have had reservations about this issue for some time, simply because I am yet to be convinced that there is any merit in the idea that “reappropriating” racial slurs makes them less offensive, less demeaning, or less capable of being used as a means of oppression. Are African-Americans any less offended or oppressed by being called “n——”, because they use it a lot amongst themselves? There is no evidence that adopting slurs in this way has alleviated racial oppression in any way. All that has happened is that some minority groups use slurs as a way of in-group identification, but that isn’t much of a blow against racism.

    Similarly, there is no reason to believe that adopting in-group slur usage “does nothing to increase or perpetuate the racial disadvantages suffered by the group supposedly maligned by the name.” I might suggest that the opposite is true. The only people desensitized to the slur “n——” may well be racists who now have the perfectly legitimate cause to ask “if they can use it, why not us?”, after all, the word has been “reappropriated” and is no longer a term of disempowerment. Of course, no-one making that argument will actually go up to a black person and actually use that slur, because we all know perfectly well that it is still highly demeaning and dehumanizing.

    Plus, my sense is that Asian-Americans need more substantial ways of bringing our specific concerns and issues about race to the table. “Slants” is certainly eye-catching, but because Asians have been reduced in this culture to a collection of quirky, mock-worthy, racial mannerisms, racial characteristics, and cultural peculiarities, it seems that it would be of benefit to us if we upheld a strong message and meaningful content over eye-catching, and quasi-controversial one-liners.

    By all means use the name, but I don’t see the merit in trying to convince a government agency to fundamentally endorse the usage of a racial slur as a legitimate way of conceiving of Asians.

    • Simon Tam October 15, 2013 at 6:31 pm #

      Hi Ben,

      Putting the quibbles about re-appropriation aside for a moment (as you well know my position on the matter), don’t you think that the it is inappropriate for the government to make their decision based on my race? They specifically mentioned the fact that I was “too Asian” for the term – something that was not brought up once in nearly 800 applications to the Trademark Office over the term. Something is fundamentally wrong when anyone except Asian Americans can receive a right, especially one that is tied directly in with First Amendment rights.

      Try as we might compare “slant” to other racial slurs, it doesn’t fit that because “slant” is a neutral term that doesn’t necessarily designate racial connotations. Most dictionaries don’t even reference it as a term that refers to Asians anymore because it is such an obscure term to be used anyway.

      Even if one were to reduce our band to a “catch phrase,” there’s no doubt that our band has participated in our fair share of bringing meaningful discussions about race to the table: we’ve helped raise over $1 million, holding almost 100 workshops across North America about race/racism and diversity, working with dozens of Asian American advocacy groups on a number of causes, and now starting a non-profit organization to fight bullying in schools.

      You write, “By all means use the name, but I don’t see the merit in trying to convince a government agency to fundamentally endorse the usage of a racial slur as a legitimate way of conceiving of Asians” yet that’s inherently flawed in that you’re referring to a word that isn’t a racial slur at all. Again, hundreds of people have received trademarks for the term “slant,” yet we were only denied the right for being Asian Americans. A trademark has nothing to do with morality, endorsement, or even the use of language – it’s simply to avoid confusion in the marketplace and protect intellectual properties. Even the KKK has trademarks – I highly doubt that the Trademark Office would say they endorse those activities.

      Regards,
      Simon

      • Ben Efsaneyim October 16, 2013 at 4:20 am #

        Hi Simon

        From our previous interactions it is obvious that you are using the term as a racial reference – specifically a reference to racial characteristics – you are using the word to imply some kind of racial solidarity, and you decided to trademark the name because (and this is an important point) you discovered that one (or a few) white bands were using the name as a way to mock Asians (that is, it is still used as a derogatory slur).

        So yes, everything about the way that you use the word is about race and racial slurs. You wouldn’t be using it as a name if it did not have a specific racial connotation for you and your band.

        • Simon Tam October 17, 2013 at 1:37 pm #

          Hi Ben,

          I won’t deny that there was some intent on reappropriating the antiquated racial slur – I’m certainly not alone in that effort, APA’s have been doing that for decades now. However, intent has nothing to do with whether something should or shouldn’t be trademarked. The Trademark Office only cares about what actually happens in the marketplace, not intentions behind it – after all, the NFL Redskins have their trademark just as the KKK.

          “everything about the way that you use the word is about race and racial slurs. You wouldn’t be using it as a name if it did not have a specific racial connotation for you and your band.” That isn’t true and it’s an unfair assumption. “Slant” is also a music term, it refers to the types of chords as well as amplifiers that our band uses. For us, it is about our “slant” on life, or perspective as Asian Americans. But the Trademark Office doesn’t care about that, they only care that it is an Asian American applying for the trademark, therefore, it must be denied on those grounds alone.

          • Ben Efsaneyim October 21, 2013 at 2:26 am #

            Simon

            My point is that you have stated that the term “slant” is no longer used as a slur to demean Asians – and you have stressed this point in when seeking support from the Asian community. But clearly, from your own statements, the term is still in use as a way to (in your own words) mock Asians.

            but I think that you may not be entirely genuine by denying that you are not using the term as a racial reference. You cannot turn a negative word into a positive one unless the frame of reference is there for the negative aspect of the word in the first place. Do you see? If you chose the name by coincidence, then your claims to be engaging in some kind of activism from its use is untrue. If you chose the name because – as Asians – you thought you could give it a positive meaning, then it is certainly true that your race had much to do with the choice of name.

            In that light, the trademark office is justified in denying your claim – it is clearly, despite denials, a reference to your race. And I don’t think that you have the right to decide for me – and then convince a government agency – that a slur is an acceptable way of conceiving of Asians.

            I will respond to your comments about the studies later, when I have a bit more time.

    • Simon Tam October 15, 2013 at 7:00 pm #

      Hi Ben,

      On another note, you mentioned “There is no evidence that adopting slurs in this way has alleviated racial oppression in any way. All that has happened is that some minority groups use slurs as a way of in-group identification, but that isn’t much of a blow against racism.” However, this isn’t necessarily true.

      There’s a number of fantastic academic papers, books, and studies on the evolving use of language and how it has impacted society. For example, “Slurs” by Adam Croom (University of Pennsylvania). He writes, “Although it is true that the utterance of slurs is illegitimate and derogatory in most contexts, sufficient evidence suggests that slurs are not always or exclusively used to derogate. In fact, slurs are frequently picked up and appropriated by the very in-group members that the slur was originally intended to target. This might be done, for instance, as a means for like speakers to strengthen in-group solidarity. So an investigation into the meaning and use of slurs can give us crucial insight into how words can be used with such derogatory impact, and how they can be turned around and appropriated as vehicles of rapport in certain contexts among in-group speakers.” The full paper is available through EBSOHost and other library sources.

      Furthermore, in Embrick and Henricks’ “Discursive Colorlines at Work: How Epithets and Stereotypes are Racially Unequal,” hey talk about how the preservation and reverence we pay to racial slurs (by only giving credence to “white” uses of the term) actually perpetuate white supremacy and violent hate crimes.

      Perhaps a lighter look on language in general and how labels/slurs/phrases/swear words have defined us can be found in this episode of “Philosophy Talk,” http://bit.ly/1ao46E4 (It presents multiple viewpoints on the power of language and identity).

      If you’re interested in some more peer-reviewed works, this is a great one related to our case in particular: “Why Section 2(a) of the Lanham Act Violates the First Amendment”: http://bit.ly/1aKwXUx

      It can be easy for some to dismiss our case as unimportant, as something that doesn’t affect Asian Americans, etc. but the reality is that the Trademark Office has had a history of violating the rights of minorities (myself included) through a subjective law and simplifying a very complex intersection of privilege.

      Regards,
      Simon

      • Ben Efsaneyim October 16, 2013 at 4:34 am #

        Simon

        Okay, I bit.

        I read through the 16 pages of the Embrick and Hendricks study and found that they are actually arguing that racial slurs are still a powerful means of maintaining racial hierarchies – implying that in-group usage does little to alleviate inter-group race dynamics. Even more importantly Embrick and Hendricks explicitly state that slur terms cannot be abstracted from there context – exactly what you are striving to do.

        As I’ve stated before, trying to argue semantics only highlights how “reappropriating” racial slurs actually does nothing to chip away at the attitudes, beliefs, and philosophical history, that create them. That is, even if a slur becomes “owned” (and I have huge doubts that this has ever been achieved), that does little to create a shift in the underlying circumstances that produce them. It is simply delusional to believe that adopting a slur as a means of self-reference can achieve this end.

        • Simon Tam October 17, 2013 at 2:01 pm #

          Hi Ben,

          When Embrick and Hendricks “state that slur terms cannot be abstracted from there context” as you mention, they are talking about instances where whites use the term (specifically, the n-word), and furthermore, the that does not apply to other racial slurs because those experiences aren’t comparable (p. 202). Their premise is that epithets and stereotypes are not equal, especially in the context in which they’re being used.

          As documented in the Croom paper I referenced, “Slurs,” there has been documentation on how reapproriation has affected systemic changes. Perhaps more importantly, it helps empower the affected communities to take action and advocate for changes in a system of oppression. There’s no delusion in that, certainly not in those that experience transformation and become a part of it.

          Furthermore, irony and reappropriation are commonplace in the artistic and political expression. As Wiline Brutus puts it, re-appropriation can be used as a “linguistic, socializing tool used to tighten the grip of a community’s foundation. It’s sheer poetry, legislated by the people.” Symbols, like words, can be reclaimed. For example, the LGBTQ community’s use of the term “queer” or the inverted pink triangle.

          I’m also doubtful if terms can really be “owned” by anyone, but they can certainly experience linguistic shifts or uses (and they can most definitely be used in a self-referential manner to empower communities or individuals as a means to drive social change), but relating back to the Trademark Office, it’s interesting that they believe anyone can “own” the term Slant as long as they are not Asian.

  4. mark October 20, 2013 at 9:02 pm #

    As an Asian I don’t want the trademark office giving trademark status to a band with a racist name about Asians. This will legitimize using racial slurs towards Asians and its not something to be encouraged. It is naive to think that Asians calling themselves “Slants” is comparable to African Americans using the N word (without even reaching the question about whether Afric Ams have actually achieved “reappropriation” by using the N word). Asians don’t have the political clout that African Americans do and engaging in academic claims that Asians are “reappropriating” a racist term is not realistic. The main thing having a band called “Slants” copyrighted and further publicized will do is to make it seem ok for non Asians to call Asians racist names. The band needs to stop fixating on trying to get publicity for themselves and consider what the name means in the broader society, not just what an obscure small segment of Asian Americans want to make it mean. The band probably cares most about trying to make it big and have lost perspective, as everything else is just secondary to getting publicity. Asians that are going along with this are part of the problem.

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  1. A New Slant on Hate Speech | Oppression Monitor - December 29, 2013

    [...] “The United States Patent and Trademark Office is refusing trademark protection to a Portland, Oregon based rock band called The Slants.Apparently, they believe the name the band is seeking to protect is disparaging to Asians.” See on http://www.racefiles.com [...]

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