The Volokh Conspiracy - Government Speech:

Several people e-mailed me about the proposed New York City Council resolution condemning the words "bitch" and "ho," which at this point has been signed by 19 of the 51 council members, and is up for consideration in September.

The story suggests that this is a "symbolic citywide ban," much like a past resolution referring to "nigger," and it writes that the measure is "unenforceable." Author and blogger David Harsanyi echoes the ban theory, writing,

The New York City Council is on the verge of banning the slur "bitch." [Quote from article, which mentions that "the measure was unenforceable," omitted. -EV] ...

There's plenty of discussion about whether such a ban would work (of course not), but there is virtually no conversation on whether such a ban is a restriction of free speech (yes) -— or does that matter not deserve any attention? What possible justification could a city council have to ban a word, even symbolically? Surely someone would challenge such a law. The ACLU? Right? Right?

Well, I looked at the proposal, and it turns out there's less there than meets the eye. The resolution simply says, following a bunch of recitals (which have no legal effect themselves),

The Council of the City of New York calls for a symbolic moratorium on pejorative use of the "b" word and the word "ho."

It's not a ban as the term "ban" is normally used, nor is it "unenforceable" in the sense of being unenforceable because it's trumped by the First Amendment or because it's hard to effectively enforce. There's nothing here to enforce -- this is essentially government speech condemning the words, and calling for people to stop using them. The City Council would be perfectly free to proclaim such a view.

As it happens, I don't much like condemnations of words in the abstract. I'm happy to condemn many sentiments, but words mean different things in different contexts. In some contexts, "bitch" may be vulgar; in some, sexist; in some, it may be insulting but for reasons unrelated to its sexual content; in some, it may be teasing among friends that the listener doesn't resent; in some, it may be a joke. (Things are even more complex when one considers "bitch" as a verb, and other derivatives such as "bitchen.") I'm pretty sure I'd never use "ho" except in a joke or quoted, and I doubt I'd ever use "bitch" in such a context, either. But I also wouldn't categorically denounce the words themselves, especially "bitch," which strikes me as rather more versatile than "ho" (even setting aside the use of "bitch" to refer literally to female dogs).

But in any event, let's not make a federal case out of this: The proposed resolution may be condemned on various grounds, but not because it violates anyone's free speech rights.

	[Eugene Volokh, August 7, 2007 at 5:19pm] Trackbacks Government Speech: Several people e-mailed me about the proposed New York City Council resolution condemning the words "bitch" and "ho," which at this point has been signed by 19 of the 51 council members, and is up for consideration in September. The story suggests that this is a "symbolic citywide ban," much like a past resolution referring to "nigger," and it writes that the measure is "unenforceable." Author and blogger David Harsanyi echoes the ban theory, writing, The New York City Council is on the verge of banning the slur "bitch." [Quote from article, which mentions that "the measure was unenforceable," omitted. -EV] ... There's plenty of discussion about whether such a ban would work (of course not), but there is virtually no conversation on whether such a ban is a restriction of free speech (yes) -— or does that matter not deserve any attention? What possible justification could a city council have to ban a word, even symbolically? Surely someone would challenge such a law. The ACLU? Right? Right? Well, I looked at the proposal, and it turns out there's less there than meets the eye. The resolution simply says, following a bunch of recitals (which have no legal effect themselves), The Council of the City of New York calls for a symbolic moratorium on pejorative use of the "b" word and the word "ho." It's not a ban as the term "ban" is normally used, nor is it "unenforceable" in the sense of being unenforceable because it's trumped by the First Amendment or because it's hard to effectively enforce. There's nothing here to enforce -- this is essentially government speech condemning the words, and calling for people to stop using them. The City Council would be perfectly free to proclaim such a view. As it happens, I don't much like condemnations of words in the abstract. I'm happy to condemn many sentiments, but words mean different things in different contexts. In some contexts, "bitch" may be vulgar; in some, sexist; in some, it may be insulting but for reasons unrelated to its sexual content; in some, it may be teasing among friends that the listener doesn't resent; in some, it may be a joke. (Things are even more complex when one considers "bitch" as a verb, and other derivatives such as "bitchen.") I'm pretty sure I'd never use "ho" except in a joke or quoted, and I doubt I'd ever use "bitch" in such a context, either. But I also wouldn't categorically denounce the words themselves, especially "bitch," which strikes me as rather more versatile than "ho" (even setting aside the use of "bitch" to refer literally to female dogs). But in any event, let's not make a federal case out of this: The proposed resolution may be condemned on various grounds, but not because it violates anyone's free speech rights.