Wretched excess by government can be beneficial if it startles people into wholesome disgust and deepened distrust and it prompts judicial rebukes that enlarge freedom. So let‚??s hope the Federal Communications Commission embraces the¬†formal petition¬†inciting it to deny licenses to broadcasters who use the word ‚??Redskins‚?Ě when reporting on the Washington Redskins.
Using the FCC to break another private institution to the state‚??s saddle for the satisfaction of a clamorous faction illustrates how the government‚??s many tentacles give it many means of intimidating people who offend it. The U.S. Patent and Trademark Office, empowered to ban trademarks that ‚??may‚?Ě disparage persons, has already¬†limited trademark protection¬†of the Redskins‚?? name.
The FCC petition argues that broadcasting the word ‚??Redskins‚?Ě during prime time has ‚??an adverse impact on impressionable young Indian as well as non-Indian children.‚?Ě (Today‚??s sensitivity arbiters say the word ‚??Indian‚?Ě does, too, but never mind.) Furthermore, uttering ‚??Redskins‚?Ě is ‚??akin to broadcasting obscenity‚?Ě and pornography, is ‚??hate speech‚?Ě and an ‚??ethnic slur‚?Ě that ‚??keep[s] alive the spirit of inhumanity, subjugation and genocide‚?Ě and ‚??may‚?Ě cause violence against Native Americans. Besides, it is a ‚??nuisance,‚?Ě defined as something ‚??annoying.‚?Ě
Is the FCC empowered to protect an entitlement to a life without annoyances? What if the FCC is annoying? This is complicated.
Professor¬†Eugene Volokh, who specializes in First Amendment law at UCLA‚??s School of Law and supervises an invaluable Web site, the Volokh Conspiracy (a partner of The Post), thinks the petition refutes itself. It argues that ‚??Redskins‚?Ě is offensive because of the ideas and attitudes the word conveys. But when the Supreme Court upheld restrictions on the broadcasting of certain vulgarities (George Carlin‚??s ‚??seven dirty words‚?Ě), it stressed that the mere fact that speech is offensive is not a sufficient reason for suppressing it. And although the court focused on the content of the words, it did not focus on the¬†political¬†content or on the speaker‚??s opinion. ‚??Indeed,‚?Ě¬†Justice John Paul Stevens wrote, ‚??if it is the speaker‚??s opinion that gives offense, that consequence is a reason for according [an utterance] constitutional protection,‚?Ě because ‚??the government must remain neutral in the marketplace of ideas.‚?Ě
Volokh adds: ‚??The premise of the criticism of ‚??Redskins‚?? is precisely that it embodies a racist, demeaning message about American Indians (whether or not this is intended by those who use it), and that it offends because of this racist meaning. It thus is the speaker‚??s imputed opinion and supposed ‚??political content‚?? of the word that gives offense.‚?Ě
Some say ‚??Redskins‚?Ě is merely an offensive epithet with a negligible ideological message. Volokh replies that the epithet is offensive to those who are offended ‚??because of its allegedly racist ideology, and the call to suppress it stems precisely from the perception that it conveys this racist ideology.‚?Ě Anyway, the anti-‚?ĚRedskins‚?Ě petition is less legal reasoning than a form of bureaucratic bullying known as regulation by ‚??raised eyebrow.‚?Ě The petition‚??s author notes that the FCC sometimes indicates disapproval of this or that, thereby compelling broadcasters, worried about being put out of business, to practice self-censorship. So the petition seems designed to trigger this, thereby succeeding even if it fails ‚?? even if the FCC dismisses the petition.
If, however, the FCC under progressives today but conservatives tomorrow, can, in the petition‚??s words, define and ban particular words as ‚??nuisances‚?Ě because they ‚??annoy‚?Ě a ‚??substantial composite‚?Ě of the population, what other words will appear on an ever-lengthening list?
Today many colleges and universities have ‚??free speech zones‚?Ě ‚?? wee spaces to which the First Amendment is confined. Such institutions are run by educators whose meager educations did not teach them that the amendment made America a free speech zone. Campuses are habitats for progressives, and the distilled essence of today‚??s progressivism is the use of power to limit speech. The fact that censorship is progressivism‚??s default position regarding so many things is evidence of progressives‚?? pessimism about the ability of their agenda to advance under a regime of robust discussion. It also indicates the delight progressives derive from bossing people around and imposing a particular sensibility, in the name of diversity, of course.