Tizzy Over Whitney’s Lynching Portrait Reveals Left’s Descent Into Feelings-Driven Politics

Robin Ridless:

Recently, the U.S. Supreme Court heard oral argument in Lee v. Tam, a case about “cultural self-appropriation.” The Trademark Office had denied registration of a service mark to a rock band that call themselves The Slants. The denial was based on a statute that authorizes the government to reject marks that “may disparage persons, institutions, beliefs, or national symbols.”

Although many of us don’t care about trademarks or associate them with the First Amendment, the case encapsulates a broader conflict erupting a lot lately. It is that between our expressive freedoms and those claiming to use censorship to redress inequities of the past. Significantly, Tam grapples with this in its own way, providing a judicial perspective to that monopolized by progressives.

Focusing on and comparing it to a recent controversy over cultural insensitivity at the Whitney Museum in New York betrays the Left’s basic incapacity to process conflict. It shows this ineptitude stems not only from the Left’s disregard for, but also its confusion over, the rule of law.

‘What Business Does Congress Have Picking Out This One?’

Respondent Simon Shiao Tam, the leader of The Slants, whose members are Asian-American, has claimed a First Amendment right to brand his group with this pejorative slang term, historically used as an affront to Asian-Americans. Wearing the term proudly, the band says, neutralizes the authority and power of the name-callers.

True, sections of the Asian community might misunderstand and take offense. But, Tam argues, this should not abridge his and his band’s freedom to adopt what amounts to unpopular speech. Whether the applicant were Asian-American or not, he maintains, the statute should be deemed unconstitutional.

The government counters that the statutory purpose of trademarks is to identify manufacturers. When trademarks rile people unnecessarily, they distract from this purpose. Therefore, in this instance, Congress can determine that the harm objectionable marks cause “is the wrong kind of distraction,” and override the First Amendment.

Here, Justice Stephen Breyer chimes in. He points out that trademarks don’t just identify manufacturers, they advertise. Nowadays, they conjure images and create buzz and cause all manner of distraction. “[W]hat business does Congress have picking out this one, but letting all the other distractions exist?”

To step back: The “viewpoint-neutral” requirement for burdening speech that First Amendment jurisprudence imposes on government prohibits favoritism. Breyer is basically asking why judges and bureaucrats should get to reject The Slants’ mark because, to their (inevitably fallible) taste, the name might run afoul of the trademark disparagement statute, while to someone attuned to the subversions of appropriation, it does the opposite.

It will be important this summer to see where the high court comes out. But whatever its decision, we can be assured it will have rested on a reasoned process of deliberation, constrained by precedent. It will support itself with neutral criteria, not partisan values and beliefs or arbitrary pronouncements and “first truths.” Indeed, it is largely because of this that we respect judicial outcomes, even when they rankle. We defer to the rule of law.

The Left’s Only Moral Compass Is Victimhood

Contrast this with today’s Left, which has no fixed bearings, legal or otherwise. The crowd decides ad hoc which speech is to be gagged, whose unilateral, trend-driven definition of the privileges of victimhood imposed. Nowhere is this plainer than when cultural progressives confront perceived transgressions by one of their own. Witness the controversy over Dana Schutz’s painting in the current Whitney Biennial.

Now, artists pride themselves on publicly supporting uninhibited expression and experimentation. Those beliefs are hard to reconcile with authoritarianism and bullying, especially when a conservative is not around to scapegoat. Yet when the Whitney featured “Open Casket” (2016), a painting by a white woman artist appropriating a newspaper photograph from 1955 of the lynched African-American youth Emmett Till lying in his coffin, with a few exceptions, the art community behaved no better than a Berkeley mob.

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