CHAPTER 8 The Conservatives and the Lure of Defensive Relativism: Spiraling Down

Over forty years ago, a dear friend and seasoned lawyer in New York told me that corporations were not permitted under the law to have obscenities in their names. Were that not the case, we could expect to see the telephone directories at the time filled with such listings as “The Amherst F—ing Fuel Co.” And yet recently, in two rulings within the space of three years, this rather prosaic issue, which had stirred hardly a tremor in the world of law, caused two justices of the Supreme Court to do a flip that promises to unsettle the laws on “speech” even further.

Matal v. Tam (2017) involved a musical band composed of young people with Asian backgrounds who styled themselves “The Slants.”¹ The federal Patent and Trademark Office, taking that name as a term of derision, denied the band a trademark, invoking a provision in federal law that barred the registration of any trademark that may “disparage… or bring… into contemp[t] or disrepute” any “persons, living or dead.” But the Supreme Court struck down this use of the power of the law to restrict the freedom of businesses to name themselves. The name “The Slants” was evidently an effort to make light of a snide epithet for Asians. Justice Alito caught the sense of the matter, in his opinion for the Court, when he remarked on the belief held by members of the band “that by taking that slur as the name of their group, they will help to ‘reclaim’ the term and drain its denigrating force.”²

There was nothing novel in the understanding behind the statute. As we have seen, the law had long recognized that certain terms or expressions are widely understood as terms of derision and insult. “Slants” seemed to be part of that same family of expressions and could be barred from respectable discourse for that reason. Whether the Trademark Office got that call right or wrong can be readily answered using the formula of the Chaplinsky case.

In other words, the whole matter could have been resolved without the Supreme Court’s treating this as a question of high moment. The Court could have shied away from creating nothing less than a constitutional right to give names to businesses without the restraints of that civility that may still be applied to the ordinary speech of daily life. And yet this case moved even Justice Alito to break from the position he had held, often in lonely dissent, as his conservative colleagues had thrown over almost every lingering justification for judging and restraining speech that denigrates and assaults. Alito had been the sole dissenter in Snyder v. Phelps (2011), when, as we have seen, the Reverend Fred Phelps and his crew harassed the funeral of a young Marine with signs saying “Semper Fi Fags.”³ It was clear to Justice Alito that what had occurred in that case was a “vicious verbal assault.” As Alito understood, restraining Phelps from such an unwarranted, unjustified assault interfered in no way with his religious or civic freedom. Almost alone among judges over the previous forty years, Alito seemed to have hold of that key point in Justice Murphy’s opinion in the Chaplinsky case: that gross words of assault or denigration “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

For many years already, the Court had been drifting to a kind of decorous relativism, given a cover of innocence because it came with lofty language emitted by men and woman in robes enthroned in a kind of temple.

The shift was simple, but unsettling. For the implication here was that “offense” is entirely subjective—that different words or modes of expression may offend people for reasons that may be wholly personal or idiosyncratic. What is ruled out here is that something may indeed be done in an act of speech, or other expressive acts, that is offensive in principle—that may inflict harm without justification. The assumption now was that nothing ever done through the instrument of speech may ever be, in principle, offensive and wrongful.

Alito’s lines brought back to me the scene from forty years earlier, when I was brought into a meeting with the American Civil Liberties Union (ACLU) to state “the other side” in a case dealing with a band of Nazis in Skokie, Illinois. The self-styled Nazis were seeking to parade, with swastikas and armbands, in a community containing many Jews who had survived the Holocaust. David Hamlin of the ACLU declared at the time that the First Amendment “protects all ideas—popular or despised, good or bad… so that each of us can make a free and intelligent choice.” In Hamlin’s translation, it was a matter of being “popular” or “despised”—to be despised was merely to be “unpopular.”⁵ It was no part of his understanding that certain things may be, in themselves and in principle, truly despicable.

But during the debate over the Nazis in Skokie I had pointed out that the real threat did not come from that ragtag bunch calling itself the American “Nazis.” The more serious danger was a political class talking itself into the notion, as David Hamlin had it, that we must be free to hear the Nazis because we must be free to choose the Nazis and their policies in a free election. The assumption, in other words, is that democracy is all process and no substance: that people are free to choose anything—to choose slavery or genocide—as long as it is done in a democratic way with the vote of a majority. In this understanding it would be legitimate for the American people to choose the Nazis or the white supremacists because their ends are no less legitimate than any other set of ends on offer in our politics.

But the very freedom to choose a candidate or a party in a free election sprang, of course, from the “proposition,” as Abraham Lincoln called it, that “all men are created equal,” that the only rightful government over human beings depends on “the consent of the governed.” The Nazis, on their racial principle, rejected that founding premise and, with it, the regime of free elections. To say that it was legitimate to choose the Nazis in an election was to say that it was legitimate to choose the party that would end free elections. And as it acted out its character, it would sweep away also that regime of absolute freedom of speech that the ACLU affects to treasure. But if that regime of freedom was good in principle, we could not be warranted in choosing to sweep it away. If that regime is not rightful in point of principle, then the principle of “all men are created equal” could not itself be true. It could not be, as Lincoln thought it was, a “self-evident” or necessary “truth, applicable to all men and all times.”⁶ It could be, at best, only something true now and then.

Again, the real danger posed by that case in Skokie was not that of the gaggle of a dozen would-be Nazis on the street. The deeper danger was that lawyers from the best schools, heading the ACLU, would talk themselves out of the very principles that marked this regime and the ground of their own freedom. But the even sadder move is that a corps of gifted conservative judges, bracing for a wave of intolerance, seem willing now to adopt as their own the jural doctrines on speech established by the ACLU.

Only a year after Matal v. Tam, this slide into a tactical relativism would be taken a step further in the famous case of Jack Phillips, the Masterpiece Cakeshop baker who had refused to design a cake to celebrate a same-sex wedding. The case did not exactly have a resounding resolution. For Justice Kennedy, the swing vote, the case turned on the fact that the Colorado Civil Rights Commission had gone out of its way to show a gratuitous contempt for Phillips and for the Christian convictions that reinforced his moral judgment. Justice Alito rightly sensed the need to say something more emphatic in defense of religious freedom. He drew to his side his new colleague, Justice Gorsuch, and together they risked taking this emerging, half-hearted relativism just a bridge too far. For now the two justices were moved to say that “just as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”⁷

Is the assumption now that nothing going under the name of religion may ever embrace anything that is in principle wrong or despicable—that offensiveness is simply in the eye of the beholder? But what of Satanism? How can the affirmation of radical evil be consistent with anything that we could consider “religion” rightly understood? And yet, as bizarre as it sounds, that is precisely the argument that some conservatives have fallen back upon: that in order to secure religious freedom from the prejudices of the irreligious or the people hostile to religion, it is necessary that we stop presuming to cast judgments on any religious teachings as legitimate or illegitimate, defensible or indefensible.

This emerging relativism would be given a further test two years later in a case in which the obscenity in the name of a business was quite plain and unmistakable. And for the first time in a long while some of the justices showed a deep uneasiness over pulling away any remaining restraints of the law. The recognition seemed to be finally breaking through to them of just what might be done to the sensibilities of the public when the vulgarity and coarseness they were licensing could be proclaimed now openly and loudly, from the language on television to the advertising signs blazing throughout the country.

The case was Iancu v. Brunetti (2019).⁸ Erik Brunetti had sought a trademark for a brand of streetwear he would call “FUCT”—“Friends U Can’t Trust.” The name was close enough to the F-word that the federal Patent and Trademark Office refused to register the trademark. During the oral argument on the case, Chief Justice Roberts voiced a concern that advertisements for this brand of clothing would be posted in malls where children could see them—a concern that would spring up at once for ordinary folk. But even apart from the effect on children, the case made Roberts question whether the government should be “facilitating this kind of vulgarity.”

Roberts did not back away from his concerns even as he concurred with the main opinion written by Justice Kagan, an opinion that struck deeply at any law that would impose moral restraints on the names of corporations. Remarkably, Roberts’s concern about opening the floodgates on vulgarity was expressed in terms even more vibrant and fearful in the liberal wing of the Court by Justices Sotomayor and Breyer. And yet in registering those deep qualms, these three judges were described only as “dissenting in part.” And there we find the true puzzle of this case: Virtually all of the justices writing separate opinions revealed their keen awareness of the corrosive damage in the culture that this decision was highly likely to license. Since the day that the decision was handed down in Matal v. Tam, the Patent and Trademark Office had been flooded with applications for trademarks using the word “nigga” for everything from tablecloths and headgear (hair bands, hair holders) to athletic apparel (shirts, pants, jackets). Now, as the Court took a step further into explicitness, Justice Sotomayor seemed to experience a moment of sharp wariness, a kind of presentiment of something like the N-word’s being brandished about, making the appalling now routine. Every justice speaking on the question voiced the wish that Congress replace the current law with a measure more narrowly focused to deal with vulgarity, obscenity, and lewdness. And yet, each one of them fell in line to strike down the law as it was, finding its prohibition of “immoral” trademarks too broadly phrased. So convinced were they that the law was too vague to be sustained that they somehow failed to notice that the administrators applying the law were applying it precisely as these justices would have wished.

What the justices failed to see was that there was in fact no practicable way for the law to be rewritten. It could not have been made more precise. Just why that was so had been explained many years ago by the redoubtable Thomas Reid, the Scot philosopher of the eighteenth century who was studied so closely by that fellow Scot, James Wilson, and read with deep respect by both John Adams and Thomas Jefferson. Passages from his works were threaded through James Wilson’s lectures on law, and Wilson invoked Reid in one of the first cases in the Supreme Court, Chisholm v. Georgia, in 1793.⁹

The lesson from Thomas Reid came in the early pages of his classic book Essays on the Active Powers of the Human Mind. His targets were the moral skeptics led by David Hume, and among the things that Hume professed not to know was the very meaning of such things as “active powers” possessed by human beings. But here, as in other cases, wrote Reid, “the philosophers have found great difficulties about a thing which, to the rest of mankind, seems perfectly clear.” The ordinary man understands, without the need for reflection, the “active power” he exerts to perform his own acts, from the prosaic to the grand, whether choosing to open a bottle or to join the army. Reid was referring to things so elementary that the ordinary person grasps them as a matter of course, and virtually has to take them for granted. “It is well known,” he said, “that there are many things perfectly understood and of which we have clear and distinct conceptions, which cannot be logically defined”: “No man ever attempted to define magnitude; yet there is no word whose meaning is more distinctly or more generally understood. We cannot give a logical definition of thought, of duration, of number or of motion…. When men attempt to define such things, they give no light. They may give a synonymous word or phrase, but it will probably be a worse for a better.”¹⁰

Take, for example, the notion of “number.” A dictionary would tell us that by “number” we mean “a member of the set of positive integers; one of a series of unique meaning in a fixed order which may be derived by counting.” Something “unique”?—meaning “one” of its kind? “A member”? That is, “one” part? There is a “fixed order” or “series,” derived by “counting”—but what is it that is counted, and what are the units that make up the series? As Reid suggested, every attempt to provide a definition will end up offering synonyms or saying the same thing in another way.

We might imagine what Congress could do if it were asked to make more precise a statute that depended on terms such as “up” and “down.” I would suggest that this was essentially the problem that the justices were asking the Congress to solve in the Iancu case, to deliver them from their moral perplexity.

Justice Sotomayor was even more certain than the chief justice that the decision she was joining would “beget unfortunate results.” With this decision, she said, “the Government will have no statutory basis to refuse… registering marks containing the most vulgar, profane or obscene words and images imaginable.” Sotomayor thought that the majority had been too facile in collapsing the difference between “scandalous” and “immoral.” Justice Alito thought that both words were too imprecise, that they could “easily be exploited for illegitimate ends.” But Sotomayor thought that “scandalous” could be more readily cabined to “the small group of lewd words or ‘swear’ words that cause a visceral reaction, that are not commonly used around children, and that are prohibited in comparable settings.” She concluded that the situation could be saved if the Court simply adopted “a narrow construction for the word ‘scandalous’—interpreting it to regulate only obscenity, vulgarity and profanity.”¹¹ And that move would save the policy of regulating trademarks from unconstitutionality.

Which is to say: Back to Chaplinsky! Back to the commonsense understanding. But how does that differ from the standard of judgment that the Trademark Office had actually applied in this case? The statute governing the Patent and Trademark Office authorized the withholding of trademarks that consisted of “immoral or scandalous matter.” Justice Kagan was good enough to recall that as the office sought to apply that statute, it asked whether the public would view a trademark as “shocking to the sense of truth, decency, or propriety”; “calling out for condemnation”; “offensive”; or “disreputable.”¹² The office had simply sought to explain in different ways how ordinary people would understand what it means to say that something was “immoral” or “scandalous.” And it offered precisely the same translation that Justice Sotomayor offered for “scandalous.” As Thomas Reid could have explained, people were simply offering different words for the same thing as they sought to explain what they could mean by “insulting,” “derogatory,” “obscene,” “offensive,” and “stirring anger and conflict.”

In his own rambling way, Justice Breyer thought these were “attention-grabbing words” that risked making public spaces “repellant, perhaps on occasion creating the risk of verbal altercations or even physical confrontations.”¹³ In his usual manner, tripping into an insight rare and novel, Justice Breyer rediscovered the meaning of “fighting words” seventy-seven years after Justice Murphy had set down that standard in the Chaplinsky case. But the fact that everyone writing was saying the same thing seemed not to shake Justice Kagan in her belief that no one could exactly define something rather basic, which everyone essentially grasped. She did not see how the meaning of “immoral” and “scandalous” could be narrowed, as the government rightly argued, to words that were “lewd, sexually explicit, or profane.” She and her clerks consulted a dictionary and found that “immoral” might mean “inconsistent with rectitude, purity or good morals,” “wicked,” or “vicious.” And “scandalous” would typically mean “giv[es] offense to the conscience or moral feelings,” “excite[s] reprobation” or “call[s] out condemnation.”¹⁴ Exactly as Reid foretold to us: everyone seeking out different ways to explain the same rudimentary thing.

We might as well ask the Congress to give us more precise definitions of “higher” and “lower.” “Elevated” and “sunken”? But the problem with Kagan’s argument ran even deeper, for if we take her seriously, this accomplished jurist must have suffered a moment of forgetting Aquinas’s first rule of practical reasoning, whose logic is grasped instantly by ordinary folk: that we commend and applaud what is rightful and good while we condemn, discourage, and even punish the things we regard as wrongful and wicked. And so Kagan found something arbitrary in the fact that the Trademark Office “allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety.” The statute, she observed with laser-like clarity, would favor phrases such as “Love rules” rather than “Always be cruel.”¹⁵ That is to say, the office would be guided by the commonsense understanding, widely diffused, of the kind of things that should be commended and encouraged and the things that should be condemned and discouraged. There was nothing novel about that “logic of morals,” which in this case led to nothing more astounding than the sense that love is better than cruelty.

And yet even in the face of writing of this kind on the part of his colleagues, Justice Alito sought to assure his friends following the work of the Court that “our decision is not based on moral relativism.”¹⁶ But then that understanding of the case was instantly and indecorously undercut by Justice Kagan in her opinion for the Court: She noted that the Trademark Office had “rejected marks reflecting support for al-Qaeda (BABY AL QAEDA and AL-QAEDA on t-shirts) ‘because the bombing of civilians and other terrorist acts are shocking to the sense of decency and call out for condemnation.’… Yet it approved registration of a mark with the words WAR ON TERROR MEMORIAL.”¹⁷

For Justice Kagan, “viewpoint neutrality” evidently means that we must be willing to treat on the same moral plane the killing of the innocent in terrorism and the opposition to the killing of the innocent. If that is not “moral relativism,” words have lost their meaning.

Justice Alito touched on the concern that a law too broad, with ill-defined limits, “can easily be exploited for illegitimate ends.” Conservatives are haunted by the specter of “speech codes” and of the outright repression of conservative speakers and professors on college campuses. Nothing accounts more for their willingness to swing over to the side of a sweeping relativism on the matter of speech. By drawing a clear, unequivocal line—by their willingness to protect even “immoral” and “scandalous” trademarks—they hope to shore up the protections for speech on the campuses and in the public arena. That concern seemed to have been at work when Justice Scalia took the dramatic step of striking down laws barring the burning of crosses in 1992. But the climate of intolerance and repression on campuses has only become ever more aggressive, without a trace of apology. And why should the conservatives affect to be surprised? Once we sign on to the premises of even a mild moral relativism, we can no longer explain or defend the rightness or goodness of the regime we are seeking to preserve. We have cut the moral ground out from under our defense of free speech—or of anything else.

Now of course these seasoned jurists would not see themselves as “relativists,” and would quickly scorn the title. But we may have here a flashback to John Finnis’s line about the man who is singing “I’m not singing.”¹⁸ It is one of those “performative” contradictions. If judges really hold that nothing in speech is so offensive that it cannot be regarded as legitimate, then they are regrettably putting in place the premises that do the work of relativism even if they are not flying with the brand name. With the best intentions, and disclaiming all the way, conservatives have backed themselves into a spiral of relativism. That is not a path that conservative jurists should have helped prepare for us, and they should not be riding this spiral all the way down.