Abstract
In this paper, I derive a test for distinguishing between derogatory terms by expanding upon Seana Shiffrin’s recent “thinker-based approach.” Protection on her account extends to many forms of speech due to a connection between speech and an individual’s development of autonomous thought. Shiffrin questions whether there is protection for corporate and commercial speech. The latter have a tendency to interfere with autonomous thought processes and do not clearly serve their development. I argue that these reasons for limitation serve as a basis for making nuanced distinctions for general regulation and applying this approach to controversies surrounding derogatory team names in sport. Many kinds of speech can be offensive and derogatory, yet I argue that only some may be said to be parasitic on communicative endeavors and legitimately fall outside free speech values as a result. Regulation should not be concerned with the content of speech, the manner in which certain words are spoken, or even the speaker’s positive or negative intent. Instead, the focus should remain on autonomous mental development of speakers and hearers.
Highlights
In this paper, I derive a test for distinguishing between derogatory terms by expanding upon Seana Shiffrin’s recent “thinker-based approach.” Protection on her account extends to many forms of speech due to a connection between speech and an individual’s development of autonomous thought
The band was previously denied by the US Patent and Trademark Office (PTO) to register their name due to the Lanham Act that prohibited any trademark that “disparage[s] . . . or bring[s] . . . into contemp[t] or disrepute” any “persons, living or dead.”1 despite the name’s racist appearance, the band argued that the name itself was a form of political speech, a protest in the spirit of reclaiming a name that has been used to
I will extend her argument to show that, rather than promoting autonomous mental development, derogatory speech may be detrimental to the interests of the thinker despite the fact that such speech is protected on her account
Summary
Despite casting a wide net of protection, Shiffrin argues that physical acts of expression may be regulated due to lacking communicative value. She argues that they are not tentative and exploratory acts that lend themselves well to the enhancement or maintenance of self-reflexive expression. The Condition for Derogatory Speech Derogatory speech may lack communicative value in ways Shiffrin does not consider It would not be sincere in the extended meaning of the term. When understood as an assault rather than an exploratory and communicative act, the speech itself has the immediate effect of undermining self-reflexive expression in a way that initially worried Shiffrin. It will subsequently be possible to compare potential loss of valuable speech using the same metric for comparison with or without regulation
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