The James Wilson Foundation on Natural Rights and the American Founding

“The Business That Dare Not Speak Its Name”- Prof. Hadley Arkes in the WSJ

There are some words or phrases that are universally understood as off limits within the public sphere. In his editorial, “The Business That Dare Not Speak Its Name,” published in the Wall Street Journal, Professor Hadley Arkes echoes this notion in discussing the role of profane words in our society and how any exclusion of them is not based purely in subjectivity. More specifically, he discusses how at oral argument in Iancu v. Brunetti, several justices on the Supreme Court noted how making determinations of these kinds was rooted in proper functioning of government.

Iancu v. Brunetti concerns an acronym for a business called “Friends U Can’t Trust.” This acronym was deemed too alike the F-Word, so much so that the U.S. Patent and Trademark Office denied its registration. Many responses to the decision included concern over the alleged subjective standards of judgment that were upheld, particularly that “the government would have a license for censoring all manner of political speech.”

Professor Arkes writes: “Everyone seemed to understand the words that should not be used,” when discussing the presence of the N-Word and F-Word in society. “An understanding of that kind, shared so widely,” he explains, “cannot be merely subjective.” Within this context, he explains that certain types of language are deemed “ordinary” and usable within the public sphere, while others are not. In fact, “certain words are fixed in the language with the moral functions of ‘commending’ and ‘condemning,’ and some have a special edge as terms of assault and disparagement.”

In short, Professor Arkes argues that “at any given moment there is remarkable consensus on what words are unacceptable.”

Here are some more excerpts from the piece:

“The telling point was that the justices and lawyers on both sides performed a delicate choreography as they carefully avoided saying those words—or the disputed company name—out loud.”

“Chief Justice John Roberts touched the heart of the matter when he remarked that advertisements will be posted in malls where children can see them. Mr. Brunetti is appealing to rebellious young men, ‘but that’s not the only audience he reaches,’ the chief justice observed, and that ‘sort of gets to the government interest of whether or not it wants to be . . . associated with facilitating this kind of vulgarity.'”

“The laws have a pronounced effect in shaping moral sensibilities.”

Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790