In law, one generally strives for uniformity, as in Leviticus 24:22: “You shall have one manner of law; the same for the home-born as for the stranger,” but there are problems with putting this into effect when dealing with racism. The law seems to allow each individual group to denigrate itself with words that outsiders are not permitted. This is seen regularly in rap songs but also in advertising.
Roughly a year ago, the US Patent office revoked the copyright protection for the Washington Redskin logo and for the team name causing large financial loss to the Redskins organization. The patent office cited this symbol as the most racist-offensive in sports. I suspect this is bad law, in part because it appears non-uniform, and in part because I’m fairly sure it isn’t the most racist-offensive name or symbol. To pick to punish this team seems (to me) an arbitrary, capricious use of power. I’ll assume there are some who are bothered by the name Redskin, but suspect there are others who take pride in the name and symbol. The image is of a strong, healthy individual, as befits a sports team. If some are offended, is his (or her) opinion enough to deprive the team of its merchandise copyright, and to deprive those who approve?
More racist, in my opinion, is the fighting Irishman of Notre Dame. He looks thick-headed, unfit, and not particularly bright: more like a Leprechaun than a human being. As for offensive, he seems to fit a racial stereotype that Irishmen get drunk and get into fights. Yet the US Patent office protects him for the organization, but not the Washington Redskin. Doesn’t the 14th amendment guarantee “equal protection of the laws;” why does Notre Dame get unequal protection?
Perhaps what protects the Notre Dame Irishman is that he’s a white man, and we worry more about insulting brown people than white ones. But this too seems unequal: a sort of reverse discrimination. And I’m not sure the protection of the 14th was meant to extend to feelings this way. In either case, I note there are many other indian-named sports teams, e.g. the Indians, Braves, and Chiefs, and some of their mascots seem worse: the Cleveland Indians’ mascot, “Chief Wahoo,” for example.
And then there’s the problem of figuring out how racist is too racist. I’m told that Canadians find the words Indian and Eskimo offensive, and have banned these words in all official forms. I imagine some Americans find them racist too, but we have not. To me it seems that an insult-based law must include a clear standard of how insulting the racist comment has to be. If there is no standard, there should be no law. In the US, there is a hockey team called the Escanaba (Michigan) Eskimos; their name is protected. There is also an ice-cream sandwich called Eskimo Pie — with an Eskimo on the label. Are these protected because there are relatively fewer Eskimos or because eskimos are assumed to be less-easily insulted? All this seems like an arbitrary distinction, and thus a violation of the “equal protection” clause.
And is no weight given if some people take pride in the symbol: should their pride be allowed balance the offense taken by others? Yankee, originally an insulting term for a colonial New Englander became a sign of pride in the American Revolution. Similarly, Knickerbocker was once an insulting term for a Dutch New Yorker; I don’t think there are many Dutch who are still insulted, but if a few are, can we allow the non-insulted to balance them. Then there’s “The Canucks”, an offensive term for Canadian, and the Boston Celtic, a stereotypical Irishman, but also a mark of pride of how far the Irish have come in Boston society. Tar-heel and Hoosiers are regional terms for white trash, but now accepted. There must be some standard of insult here, but I see none.
Somehow, things seem to get more acceptable, not less if the racial slur is over the top. This is the case, I guess with the Frito Bandito — as insulting a Mexican as I can imagine, actually worse than Chief Wahoo. I’d think that the law should not allow for an arbitrary distinction like this. What sort of normal person objects to the handsome Redskin Indian, but not to Wahoo or the Bandito? And where does Uncle Ben fit in? The symbol of uncle Ben’s rice appears to me as a handsome, older black man dressed as a high-end waiter. This seems respectable, but I can imagine someone seeing an “uncle tom,” or being insulted that a black man is a waiter. Is this enough offense to upend the company? Upending a company over that would seem to offend all other waiters: is their job so disgusting that no black man can ever be depicted doing it? I’m not a lawyer or a preacher, but it seems to me that promoting the higher levels of respect and civil society is the job of preachers not of the law. I imagine it’s the job of the law to protect contracts, life, and property. As such the law should be clear, uniform and simple. I can imagine the law removing a symbol to prevent a riot, or to maintain intellectual property rights (e.g. keeping the Atlanta Brave from looking too much like the Cleveland Indian). But I’d think to give people wide berth to choose their brand expression. Still, what do I know?
Robert Buxbaum, August 26, 2015. I hold 12 patents, mostly in hydrogen, and have at least one more pending. I hope they are not revoked on the basis that someone is offended. I’ve also blogged a racist joke about Canadians, and about an Italian funeral.