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.”
I would love to eradicate all the mob stereotyping I have to deal with when people learn my name is Vinnie.
Oh, and in highschool, when I was skinny, people called me Vinnie the Skinny Guinea.
Other than that, I say let it ride.
Exactly. We’ll just make you the national censorship Czar so the words that hurt Vin’s feelz will never be heard again. Of course, you can’t say them either, Vin, because someone else’s feelz might be hurt too, and that can’t be allowed.
I don’t like it either, but my feelz do not trump their free speech.
Yes. I agree. I thought “Vinnie the Skinny Guinea” put me in compliance with Poe’s Law.
You don’t get to complain. There are people named Guido.
Anyway, the judge is obviously too parochial. What if the Wandering Dago were in San Diego? More seriously, when does a slur stop being a slur? I’m pretty sure the kids these days have never heard dago, wop, JAP (a NY-centric one!), chink, etc. If no one knows to be offended, is it profanity?
When I was in NC, there was a kerfuffle over a restaurant named “Besa Mi Burro”. I forgot the outcome, but I thought it was pretty funny at the time. For at least a period of time, the owner was forbidden from having the name on the restaurant, so he parked his van, with the restaurant name and a nice painted picture, on the street in front of the restaurant.
What a bubble bureaucrats live in. They cannot conceive of what free markets are. It was The Dago’s wish to chance his income with self-deprecating humor but nnnoooo. If they had given him a pass and let him stretch his wings he might have done just fine. Maybe success is what the judge and the lower-order clerks are threatened by. Would they know risk if they ever met it in the road? Doubtful.
Back when I was a social butterfly I dated a very funny man named Friedman. He routinely called himself a Jewboy. His father laughed at it. His mother laughed at it. His friends laughed at it. I laughed at it. His boss laughed at it. My friend had a lot of public contact installing home satellite systems. There was no permit proscribing him from throwing around nutty comments with Harry and Harriet Homeowners.
We are mostly goyim here in the hinterlands if it matters. OTOH I know Micks and Paddys who meet every slur and stereotype known to the world, and then some known I believe only to us.
That was Lenny Bruce’s point, so many generations ago, when he tried to make it clear that if we were able to laugh at slurs, no child could ever be hurt by a mean word.
Yes and he was prosecuted for it, too. The more things change…
That reminds me we proper Caseys are lace curtain. Those vulgar Caseys are bog-trotters. And that can change by the hour.
Bog-trotters?!? lmao. There’s not a drop of lace-curtain in my blood, but we prefer the phrase Shanty Irish, tyvm. Now, donkey? Them’s fighting words. Oh, and don’t let Susi throw you off, I married an off-the-boat- guinea.
My bf (the Jew) routinely stops any hint of argument by stating : “blame the Jew, everyone else does”. We find it hysterical. My own take is if it’s your ethnicity, you can say pretty much anything you want (altho, to be fair, I’ve asked by black friends to not use the N word around me. my father was a bit of a racist and it bothers me tremendously). I tried to teach my nieces/nephews to not use hurtful language, but also neither to be hurt by it. I thought the Wandering Dago was an awesome name, and my (late) guinea husband would have insisted we eat there.
What a world.
The only name better than the Wandering Dago would have been the Wandering Jew, but meatballs made from matzoh suck.
Already exists. But the Rabbi’s didn’t want to certify it over the name. Some mobs have tougher censors than others.
Try the Wandering Que if you are not able to get the good stuff: [Ed. Note: Link deleted per rules.]
Funny,I was just thinking the Wandering Jew, for a beaten down food truck that takes 40 years to cross the city–which of course bring up the biblical issue of Moses having no sense of direction for taking 40 years to walk 200 miles.
@Keith
What, seriously? Halakhah < feelz? Dang.
Because I deleted Keith’s link, what you won’t find out is that the original name was “HaKadosh BBQ,” which was also banned by the Kosher Certification authorities as profanity against God. For the goyim amongst us, HaKadosh Baruch Hu means “may his name be blessed” in Hebrew.
Halakhah < feelz? Dang.
My personal favorite in this category of meshugas: “Orthodox Union orders Jezebel restaurant to change its name”
The Shanty Irish. Whose children starve because their mothers wear their money on their backs and their fathers pour it in their glasses.
On that note, two of my closest friends are Israeli Jews. If they ever stopped making Nazi jokes about me, I’d feel unloved.
Rarely do I get an opportunity to comment using experience with my day job (language teacher, translator), so here goes:
According to the version of the Oxford Dictionary that I use, profane means “not relating to that which is sacred or religious; secular” or “not respectful of religious practice; irreverent”. Applying this definition to the Rules cited by the Judge, I don’t see how the Wandering D*go involves profanity. Name-calling, maybe, but not profanity.
Did you really write “D*go”? I’m going to cry now.
It was always my understanding that the definition of profane was sacrilegious, but then, mine didn’t from the freedictionary.
Lenny Bruce was a kind of prophet. And the status quo always hates a prophet.
Nothing else to add but an “Amen” in agreement that the government should stay out of the bad/offensive word business.
Today, he would be burned at the stake. If he made it that far.
You can blame Lenny Bruce for this.
https://youtu.be/9l4JpI0nwf8
Realize the folks who were offended by Lenny Bruce are of the same ilk as those today who are offended by this guy.
Andrew Dice Clay was no Lenny Bruce.
Some pals of mine named their joint “Without Papers Pizza”. We all had a laugh at a Yelp review from a sad person who wanted to try their pizza but just couldn’t support a business with such a racist name.
Fortunately the WOP pizza truck was granted a permit by our hyper progressive city administrators.
In Re Tam has a wonderfully on point point:
“Speech that is offensive or hostile to a particular group conveys a distinct viewpoint from speech that carries a positive message about the group. STOP THE ISLAMISATION OF AMERICA and THINK ISLAM express two different viewpoints. Under § 2(a), one of these viewpoints garners the benefits of registration, and one does not”
SHG,
We Germans are such dummkopfs that we never knew that being called “Krauts” was intended as a slur.
RGK
I can’t believe they haven’t changed the name of sauerkraut to stinky cabbage.
Huns, over here, but only when bombs were being dropped. Back to “Germans” now. We’ve given up on cultural appropriation. Good thing too.
It is. sauerkraut. Yuck.
The comments here show targeted lowercase character discrimination and are therefore offensive and hurtful to the letter “I”.
Damn. This is weird. Can’t explain it. Who stole the friggin’ “I”s?
Yes, it is, isn’t it?
Just found out it’s a WordPress/Jetpack problem. Hopefully, they’ll figure out it by morning. Way over my pay grade.
Update: Fixed. To all who emailed to tell me about the problem, thanks.
Point of personal privilege: Ron Coleman of Archer & Greiner deserves public recognition by name for the win on The Slants/Simon Shiao Tam, and he did it while doing a lot of pro bono work with me in a Maryland case. He won his appellate case while dealing with a vexatious pro se litigant AND a healthy dose of my own obnoxiousness and pedantry. So three cheers to Ron!
Point of personal privilege? Ahem. But yes, Ron deserves the recognition, as do you.