Can Parents Name Their Child 'Adolf Hitler'?
Richard A. Epstein, 01.27.09, 12:01 AM EST
Offensive names and the limits of the law.
Shakespeare's profound insight that the properties of an object are not determined by the names attached to it may supply a decisive answer to the philosophical traditional of nominalism. But his immortal couplet doesn't scratch the surface on the larger question of whether the state should impose any limits on how we name ourselves or our children.
At first blush, this right to name looks to lie at the core of any sound theory of self-identification--a hot-button social issue on which most people hold strong, if implicit, libertarian views.
But a latent confusion on this question raises unanticipated difficulties. The solid part of the naming hypothesis gives each person the exclusive right to name himself or herself, or for parents to name (jointly--another potential can of worms) their children. But it hardly follows that an exclusive right must necessarily be an unlimited one. After all, my exclusive use of my own land doesn't allow me to pollute my neighbors with impunity. Quite simply, there are some names at least that have to be regarded as off limits.
The issue came to a boil in a recent episode reported in the New York Times, in which Heath Campbell vented his outrage that his local ShopRite supermarket did not bend to his will to decorate his son's birthday cake with his first two given names, Adolf Hitler. Popular sentiment turned out to run feverishly hot against Mr. Campbell, and for good reason.
Analytically, names have two distinct functions. The first is to designate one individual to the exclusion of all others, for which a nine-digit social security number will do just fine. But many names carry an expressive content, as by naming a daughter Chastity or a son Jesus. In most cases, the right response is for others to use the name even if they do not like the message it conveys.
Yet there are fuzzy limits. A name enjoys a peculiar monopoly status. It is the only moniker that anyone else can use to designate the named person. It follows therefore that names do impose what might be termed a "soft" externality on other individuals that becomes really hard to bear when the name in question forces people to be respectful to someone whom they rightly hate. No moral relativism allowed. Who wants to be polite to an Adolf Hitler?
This distaste gives rise to two sources of distress. In the Campbell episode, parents are guardians, not owners, of their children, and therefore have no right to saddle them with names that are sure to expose them to ridicule, if not physical danger. The long-standing law of abuse or neglect thus has unappreciated virtues in this context.
Yet the objection to the unlimited use of these names cuts deeper. Today, no adult could voluntary take the name Adolf Hitler either. This basic point is explicitly recognized under modern trademark law, which explicitly forbids any person from registering a trademark that consists of "immoral or scandalous matter."
The established case law won't let anyone register a new men's cologne under the name "Adolf Hitler." Forcing other individuals to use odious names is too high a price to pay when literally millions of other names are open to the user.
Exactly how far this trademark prohibition runs is an open question. Washington residents will be well aware of the continuing, if unavailing, 16-year struggle on the part of American Indians to set aside the Washington Redskins trademark as racially offensive and therefore conveying "immoral or scandalous matter."
At this point, the necessity to draw some line in uncomfortable places becomes painfully clear. The Indians' charge rang true with the many college teams that have dropped their Indian mascots voluntarily. Today Palo Alto plays host to the Stanford Cardinals, not the Stanford Indians.
But professional sports teams serve a different clientele, which shows no similar change of heart. Thus far the courts have rightly been unwilling to allow the affected sensibilities of some to ban a trade name that works as a positive symbol to so many others.
These vexing controversies should remind us that even limited governments have to worry about externalities that go beyond the use of force and fraud. By all means keep a strong presumption against invoking state power to veto personal or trade names. But this libertarian says, don't make it an absolute rule.
Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law, The University of Chicago, the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution, and a visiting law professor at New York University Law School. He writes a weekly column for Forbes.com.
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