by Geoffrey Nunberg

A few years ago, I served as the expert witness for a group of well-known American Indians who had brought a petition in the Patent and Trademark Office to cancel the mark of the Washington Redskins, on the grounds that the Lanham Act doesn't permit the registration of marks that are "disparaging." In their pleadings, the Redskins argued, among other things, that they had no racist intentions, and that they in fact held Indians in the highest respect. (They also argued that the term wasn't really disparaging but rather a "neutral" and "benign" designation, and noted that Indians used it among themselves, but leave that aside for now.) We contended that the intentions of the team were irrelevant--what mattered was the public's perception of the word itself. In its decision, the Board agreed with us in the course of ordering that the mark be cancelled (their decision was later reversed by the district court, but on other grounds). I bring this up now because the question of Imus's intentions has come up in a lot of the commentaries that have tried to mitigate or extenuate his culpability for his "nappy-headed hos" remark by pointing out that the man is not really a racist at heart. That's a consideration people are always invoking in these cases, more or less credibly. "I'm not a racist," Michael Richards said after his N-word rampage, in what was clearly genuine puzzlement, and Mel Gibson disowned any anti-Semitism, a bit less believably, after his anti-Semitic rant. I enjoy Imus, too, when I get to hear him. I don't think he's inwardly a racist in the way, say, Rush Limbaugh is (though whether he's a sexist is a little cloudier). As with other shock jocks, it seems to me that the racist remarks he makes have less to do with pandering to the racism of his audience than with playing up his persona as an unapologetic asshole (as it happens, a word I'm now in the middle of writing a book about). In fact I don't see any reason to disagree with Richard Stern that Imus is probably "a better human being than many of those who rush to get him permanently off the air." But Imus's beliefs and character are completely irrelevant here. When a white person calls somebody a nigger or describes a women's basketball team as nappy-headed hos, he or she has committed a racist act. As with redskin, the words trail their own sordid history behind them, and their power to hurt is independent of the intentions of the person who utters them. And my own view is that the broadcast media should have a zero-tolerance approach to this kind of language--"use an epithet, you're out of here." To do anything less is to implicitly sanction a racist act. Is that too harsh? Well, but suppose that a network TV commentator described a particular politician, say, as a dumb fuck. Would it matter to either the public or the network that he apologized for the remark, saying "In my heart I'm not a vulgarian"? I sort of doubt it--vulgarity abides in the words you use, not your intentions in using them. And my guess is that in that case there would be no talk of a two-week suspension--that would be it for him as a broadcaster. But how weird is that? Using a description like "nappy hos" is certainly a whole lot more offensive and wounding that calling somebody a dumb fuck, and should be a lot more intolerable to the network and society in general. I don't think the FCC should be in the business of sanctioning broadcasters for allowing "indecent" language, though I think the broadcasters themselves should treat that sort of language as inappropriate in news and discussion programs, as opposed to fictional dramas, say. But given that the FCC does ban those words, it's telling that the agency feels no need--and more to the point, no great pressure -- to extend those sanctions to racist and sexist language that clearly has no place in public discourse, whoever uses it. And the very fact that people are suggesting that Imus's own attitudes and intentions should be taken into consideration here suggests that, despite our universal condemnation of that language, we collectively haven't really come to grips with its effects.