To appreciate the complexities of policing online hate speech that underlie an April summary decision by Meta’s Oversight Board, let’s start with a musical detour through a 2017 US Supreme Court opinion called Matal v. Tam. The Court faced the First Amendment question in Matal of whether the US Patent and Trademark Office (PTO) could lawfully deny a band’s request to register its name––The Slants––as a trademark. The PTO claimed denial was okay because “slants” disparages Asians.
The wrinkle was that the band’s members are Asian and their frontman, Simon Tam, wanted “to ‘reclaim’ and ‘take ownership’ of stereotypes about people of Asian ethnicity.” As Tam explained:
We grew up and the notion of having slanted eyes was always considered a negative thing. Kids would pull their eyes back in a slant-eyed gesture to make fun of us . . . I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead.
Via Shutterstock.
This relates to “reappropriation by self-labeling” or “reclamation.” It involves marginalized groups seeking “to redefine the negative connotations” of a label and reclaiming “social power, as they become in charge of the word’s meaning.”
The Supreme Court sided with Tam, reasoning that the PTO’s denial of registration for The Slants because it disparages Asians “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” Rejecting the stance that speech isn’t constitutionally protected simply because it’s hateful, the Court asserted that:
Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”
