I was huddled with the judge and prosecutor, trying to figure out how to redact the wiretap that the government wanted to play to the jury. My client used rather common language on the street. It wasn’t going to play nearly as well to a jury.
There was one word, which he used with such regularity that there was no way to redact it without chopping up the balance of the recording, to the point of incomprehensibility. Neither the court nor prosecution disputed that it would be unduly prejudicial to the jury, but that wasn’t a reason to deprive the government of its evidence against the defendant. Ultimately, the ruling was that he said it and would enjoy no immunity from his own mouth. The recording went in as is. It was a devastating ruling.
But it raised a very different question. Words that are generally deemed offensive, because they are, racial and ethnic slurs, when not used as epithets, are commonly used by people who are “entitled” by dint of their being part of the racial or ethnic group against whom the words are used.
Can an Italian guy call his food truck “The Wandering Dago”?
There is a troubling case out of New York where U.S. District Judge Mae D’Agostino of Albany threw out a lawsuit alleging the denial of free speech after the government banned a food truck from a vendor program because its name was an Italian slur. The slur is “dago.” It appeared on the food truck “Wandering Dago” owned by Andrew Loguidice and Brandon Snooks.
In her decision, Judge D’Agostino (is that an Italian name?) held:
Contrary to Plaintiff’s contentions, its application was not rejected pursuant to an unwritten policy or through a policy in which the reviewer was granted unbridled discretion. Pursuant to the “Rules for the Empire State Plaza Vendor Participation,” which was attached to the application form, OGS set forth the following: “All vendors are expected to conduct themselves with courtesy and in an orderly manner. Arguments, harassment, sexual harassment, name-calling, profane language, or fighting are grounds for revocation of the vendor permit.”
Profane language is defined as, among other things, language that is “vulgar, coarse, or blasphemous.” See http://www.thefreedictionary.com/ profane (last visited Feb. 24, 2016). Ethnic slurs unquestionably fit within the definition of profanity. Although Defendants could not limit the use of profane language within a traditional public forum, absent some other compelling justification, Defendants can refuse to permit such language in a nonpublic forum. [Paragraph break added for readability, and docket citation omitted.]
Despite an otherwise thoughtful parsing of the caselaw, Judge D’Agostino ultimately takes a dive on the critical point:
Ethnic slurs unquestionably fit within the definition of profanity.
Is it an “ethnic slur” for an Italian to show a sense of self-deprecating humor by calling his truck the Wandering Dago? Is it “unquestionable”? The context is issuance by the state of a vendor’s permit in a nonpublic state-controlled forum, though no one would confuse it with governmental speech, and the court held that it’s not. But profanity?
But there is a broader issue at stake here. What business is it of the government to decide what words we’re entitled to use? Turley discusses this problem in the context of the infamous Patent and Trademark determination that the name “The Slants” is too offensive for trademark protection:
What is particularly interesting is the treatment of the ruling by the federal circuit in In Re Simon Shiao Tam, where the en banc Federal Circuit ruled unconstitutional the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a)…
The law allows for a small administrative office to effectively dictate the outcome of a long simmering societal debate over the team name. More importantly, the standard for determining what names or words are disparaging remains dangerously undefined with striking contradictions as we previously discussed in permitted and disallowed trademarks. The federal circuit cases involves an Asian-American rock band called The Slants, which was also barred by the office. The Court struck down the part of the law allowing the denial of the registration of offensive trademarks.
And, for those of a more scholarly bent, with an extra-special appreciation of the profane, there’s always Marc Randazza’s new law review article, answering the critical question, “What’s got ‘The Slants’ case, CUMFIESTA, Fuckingmachines, Nutsacks, and Japanese porn?”
Randazza, Marc J., Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights (January 16, 2016). Nevada Law Journal, Vol. 16, No. 1, 2016.
The problem raised will be easily answered by those for whom offensive language, in itself, is an evil to be eradicated at any price. If you feel a word is hurtful, then you completely agree that it should be wiped from the face of the earth. Even if an Italian guy wants to call his truck the Wandering Dago, what about the Italians who see the word and find it offensive? What about non-Italians who feel deep passion about the use of words that could potentially hurt other people’s (meaning, they don’t get to complain, but somewhere, someone, will unquestionably be offended) feelings?
And so they support the government playing censor of speech that could conceivably offend someone. After all, they agree with the government’s decision. This time. But if one follows the slide down the slippery slope of words that might offend someone, is it really the government’s business to tell people what words are “unquestionably profane,” such that the government can ban them, whether left to the discretion of some faceless bureaucrat or to a full session of Congress with the president listening intently?
After all, everyone knows that you are the universal arbiter of acceptable language, and that everyone else should ask for your approval before using words that might hurt someone’s feelings. Or, as my client might respond to your suggestion that his use of a word was patently offensive, “fuck you.”