Tackled by the language police

By George Will

Monday, Oct. 20, 2014 | 2:03 a.m.

Wretched excess by government can be beneficial if it startles people into wholesome disgust and deepened distrust and 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” 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” disparage people, already has limited trademark protection of the Redskins’ name.

The FCC petition argues that broadcasting during prime time of the word “Redskins” has “an adverse impact on impressionable young Indian as well as non-Indian children.” (Today’s sensitivity arbiters say the word “Indian” does, too, but never mind.) Furthermore, uttering “Redskins” is “akin to broadcasting obscenity” and pornography, is “hate speech” and an “ethnic slur” that “keep(s) alive the spirit of inhumanity, subjugation and genocide” and “may” cause violence against Native Americans. Besides, it is a “nuisance,” defined as something “annoying.”

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 website, The Volokh Conspiracy, thinks the petition refutes itself. It argues “Redskins” 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”), it stressed the mere fact speech was offensive was 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,” 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,” because “the government must remain neutral in the marketplace of ideas.”

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.”

Some say “Redskins” is merely an offensive epithet with a negligible ideological message. Volokh replies 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.” Anyway, the anti-“Redskins” petition is less legal reasoning than a form of bureaucratic bullying known as regulation by “raised eyebrow.” The petition’s author notes 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 — 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” because they “annoy” a “substantial composite” of the population, what other words will appear on an ever-lengthening list?

Today many colleges and universities have “free speech zones” — wee spaces to which the First Amendment is confined. Such institutions are run by educators whose meager educations did not teach them 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 censorship is progressivism’s default position regarding so many actions 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.

The petition, which uses “R*dskins” (this typographical delicacy supposedly will help prevent pogroms against Native Americans), says the phrase “colored people,” too, is “now considered derogatory.” If so, some progressive has the awkward duty of notifying the NAACP that its name is “akin to” a disparagement, an obscenity, pornography, a racial slur and hate speech.

The language policeman’s lot is not a happy one.

George Will is a columnist for The Washington Post.