The American Civil Liberties Union is adding its voice to those calling on the Washington Redskins to change their name. But, says Wendy Kaminer, the ACLU should not be in the business of lobbying against offensive speech. (Kathy Willens/AP)

“Redskins is wrong,” the American Civil Liberties Union has declared, in a featured blog post, adding its voice to pressure groups demanding that team owner Dan Snyder re-name the Washington Redskins. Snyder has a right to use a “vile” name, the ACLU concedes. But “the issue is whether he should perpetuate racism.”

Well, when you put it that way, the answer seems clear: No one should perpetuate racism. And the ACLU has a right to denounce “Redskins.” The issue is whether it should perpetuate campaigns against offensive speech.

When the ACLU strongly advocates self-censorship of offensive language by individuals or organizations, it aids and abets advocacy for state censorship of offensiveness.

Except for a dispassionate nod to the legality of the Redskins name, the ACLU’s blog is devoted to a critique of the name’s wrongfulness. It assumes the actual harm of “Redskins,” citing at length the opinions of other individuals and advocacy groups: It’s “de-humanizing,” damaging to the “self-esteem of American Indian children,” and has been criticized, right and left, by conservative commentator Charles Krauthammer and Democratic President Barack Obama.

“Numerous people and organizations have beseeched Snyder to change the team’s name … it offends so many people,” the ACLU laments, claiming its seat on the anti-Redskins bandwagon. But when the ACLU strongly advocates self-censorship of offensive language by individuals or organizations, it aids and abets advocacy for state censorship of offensiveness.

Acknowledging in passing that a “vile,” “racial epithet” is legal, while stressing that it causes harm, is apt to reinforce popular beliefs that hate speech shouldn’t be legal and free speech shouldn’t include the right to offend. Why does this matter? It matters because popular opposition to offensive speech helps enable laws and regulations against it.

College and university speech codes, for example, typically punish harassing or offensive speech, defined broadly and vaguely to include whatever an administrator might find demeaning, insulting, or merely inappropriate (whatever that means). Speech codes at private institutions are not public laws, but they can operate with the effective force of law on campus.

And now onerous speech restrictions legitimized by private speech codes are being transformed into law by anti-bullying crusaders. They often employ similarly vague, open-ended definitions of harassment or bullying, aiming to empower public school officials (and other agents of the state) to punish or even prosecute offending students.

“Redskins,” is reminiscent of the epithets employed by “bullies at school,” the ACLU stresses, implying that its use should perhaps be regulated. The ACLU has, after all, endorsed Obama Administration anti-bullying efforts and stayed on the sidelines of a free speech coalition protesting Administration policies restricting campus speech. You might wonder about the depth or scope of its commitment to protecting verbal offenses.

In any case, free speech advocates know, or should have learned by now, that when they condemn offensive speech they risk enabling its restriction. That’s a lesson I learned decades ago, in a brief dalliance with the feminist anti-porn movement. I naively believed in the possibility of a movement that criticized some pornography while also criticizing, not condoning, censorship.

The ACLU declares itself a ‘champion of free speech.’ Often it functions as one, but sometimes it merely poses.

Then, right wing anti-feminists adopted feminist rhetoric against pornography and leading anti-porn crusaders Catherine MacKinnon and Andrea Dworkin proposed “civil rights” laws prohibiting it. I recognized, sheepishly, that when you attack a controversial genre of speech, you’re likely to encourage support for censoring it, however unintentionally.

Am I advocating self-censorship for free speech advocates? Not necessarily. I am arguing that if we venture into controversies over offensive speech, then instead of merely conceding the legality of the speech and dwelling on its offensiveness, we should concede the offensiveness and dwell on its legality.

The ACLU declares itself a “champion of free speech.” Often it functions as one, but sometimes it merely poses. Focusing on the harm of “Redskins,” comparing it to bullying, and failing to elucidate the value of our right to offend “numerous people,” the ACLU speaks up for free speech with forked tongue.


Tags: Barack Obama, Football, Law, Race

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  • Argentus

    When upwards of half of some populations of Native American women were getting unwanted, unneeded hysterectomies less than 15 years ago, and even more were being raped *by policemen*, in some communities, it’s about time someone stood up for them. The author may be trying to champion free speech, but definitely does not realize that her example is setting back a community that doesn’t have that, or even more basic civil rights, in a country that is supposed to be free.

  • capemh

    I understand Ms Kaminer has a feud with the ACLU but, really now, did anyone point out to her that her reasoning that the ACLU shouldn’t join the chorus of people condemning the use of the team name (Redskins) because it might, somehow, result in legislating against “hate speech” (which already exists, to some extent) could be used against the author in that, by drawing attention to the ACLU position (something I wasn’t aware of before this piece), she could be doing the same thing she rails against?

  • mm

    The right to free speech means that the government ought not have the power to regulate speech, even offensive speech. If the government criminalized using the wildly offensive term “redskin” then I am quite sure the ACLU would stand for an individual’s right to use that term. The danger in regulating speech comes when it is backed by the heavy weight of the government. Whether one has the “right” to use a word versus whether one OUGHT to use a word are entirely different conversations. The KKK certainly has the right to have a march and yell racists slurs (which the ACLU has defended), however few would say they ought to. This is analogous. The ACLU has spoken out, correctly in my veiw, not on any legal issue but how human beings in a diverse society ought to conduct themselves.

  • Nativemom

    The ACLU Is Correct.