TX: To equate free speech with crime chilling

The government, it seems, has a hard time with free speech — and that includes San Antonio’s City Council.

In November 2011, for example, Simon Tam, the frontman for the Asian American band The Slants, applied to register his band name as a trademark. Despite Tam’s wish to “take ownership” of Asian stereotypes, the U.S. Patent and Trademark Office denied the claim, finding that it disparaged “persons of Asian descent.”

This ultimately ended up before the U.S. Supreme Court in Matel v. Tam. Justice Samuel Alito’s opinion held the denial violated the First Amendment: “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.”

Justice Anthony Kennedy agreed in a forceful concurring opinion, stating “it is a fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys” and “a law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.”

The San Antonio City Council does not seem to have learned from the Patent and Trademark Office’s experience with the Supreme Court or thought through the First Amendment implications of one of its latest resolutions.

Earlier this month, the council adopted a resolution alleging that using “‘Chinese virus’ or ‘Kung Fu virus’ to describe COVID-19 only encourages hate crimes and incidents against Asians” and calling for “all persons” to report any “discriminatory or racist incidents to the proper authorities for investigation.” Presumably, the “proper authorities” would include the San Antonio Police Department and other law enforcement mentioned by name in the same resolution.

Though politically charged, the core philosophy behind the resolution is commendable. Racism should be condemned, and if racist “incidents” rise to the level of a crime, they should be investigated by law enforcement.

Notable, however, is the attempt to conflate offensive speech with crime — and to go even further, by calling on people to turn in their neighbors, friends and anyone else overheard using disfavored terms to governmental authorities.

Though this resolution does not technically criminalize such speech, its effect is clear: It equates some speech with “racist incidents” and instructs San Antonians to call the police if they hear those phrases. It’s difficult to imagine a resolution more chilling to free speech.

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