Common decency, not the courts, should bring change to Cleveland’s team name.

When Ontario Superior Court Justice Tom McEwen dismissed on Monday an application brought by residential school survivor and architect Douglas Cardinal for an injunction forbidding the Cleveland baseball team from using its name and logo, and the Rogers Centre and local broadcasters from using them too, it represented a victory for free speech.

But when the Cleveland baseball team took the field in Toronto less than three hours later with the cartoonish “Chief Wahoo” logo — a goofy caricature from a bygone cowboy-flick conception of an indigenous American — emblazoned on their hats and arms, and the name “Indians” emblazoned across their chests, it represented an ongoing loss for common decency.

That is, as with so many decisions rightly protecting speech from government censorship, it hardly puts one in the mood to celebrate, since most cases that put speech at risk of government censorship feature speech that is depressingly offensive.

You never know what a local authority in Toronto will do when faced with even a kind of ridiculous complaint that something offends them — remember, this city once barred the Barenaked Ladies from city hall based on their name “objectifying women,” and our police force once threatened to arrest Madonna if she didn’t cut a simulated self-pleasuring routine out of a concert performance. But in this case, the judge ruled that no “emergency” local ban on Cleveland trademarks should apply.

The judge’s reasoning will come later. Still, it appears that it was the right ruling. Courts should not be interfering in the speech and imagery used by people and organizations except in the most extreme of circumstances, even when the speech and images in question are controversial or offensive.

What should be interfering with Cleveland’s use of that word and that image, and our own, is a sense of common decency. I avoid using the name of Cleveland’s team — and Washington’s football team, and so on — because I have heard from indigenous people that the use of “Redskins” and “Indians” and similar names in this context is hurtful to them. Isn’t that enough for a reasonable person? If someone feels insulted by the way you refer to them, or the way you use a word that refers to them, then you stop referring to them that way. Unless, of course, your intention is to insult them.

I’ve heard the argument that these names are meant to honour indigenous communities — that they are sources of pride. Perhaps some people believe them to be so. But if enough of the people you intend to honour tell you that they feel ridiculed and insulted by your tribute and you continue on as if you have not heard them, then you are doing honouring wrong.

In court, the defence came up that the NHL features controversy-free teams named “Canucks” and “Canadiens.” But of course those teams represent, are owned by, cheered on by and largely staffed by Canadians, the very people the names reference.

You also only get into this kind of debate so far before someone brings up the Notre Dame Fighting Irish, one of whose logos is a leprechaun with his dukes up. It bears pointing out that the Holy Cross priests who founded and built that school’s football teams under that name were heavily Irish, as was its student body at the time, and its sports history is a rallying point for Irish Catholics who once faced oppression and direct attacks from the KKK. Again, it is a nickname and image embraced and largely celebrated by the people it nominally represents.

Of course, there are many indigenous people — I’ve seen the surveys — who claim they are not offended by the Cleveland team, or the Washington football team, or the Chicago hockey logo, or the absurd chant baseball fans perform in Atlanta. Their feelings and thoughts on the matter are certainly more relevant than mine. I wouldn’t presume to tell them what language they should use or encourage when it comes to talking about themselves.

But there is clearly also a substantial number of indigenous people who are offended, who say that they feel mocked and oppressed and that this is especially hurtful given the well-documented, ongoing, marginalized place of indigenous people across North America.

I am not inclined to use or celebrate languages and imagery that makes so many upset, even if others are fine with it.

But it’s just a tradition, some insist! Which is no argument at all.

Slavery was once a tradition in North America. Racism is a tradition. Forbidding women to work outside the home was a tradition. Sexual harassment is a tradition. The disregard and mistreatment of indigenous people is perhaps the longest-standing North American tradition. Nostalgia about how it has always been is no argument against change.

And if it still seems to me important, for a number of reasons, that courts don’t mandate proper speech, it also seems reasonable to me that we ought to be using our own speech to advocate for decency and respect.

Each of us can decide to respect the people asking us not to gratuitously insult them in our choice of words. Each of us can express that we demand organizations and corporations should do the same — and we can direct our dollars and attention to rewarding or punishing them based on their decisions.

A broadcaster, encountering a group of people who have said they feel insulted by a certain term, can and should decide whether to continue insulting them or not.

A baseball team, or the league that oversees it, can decide that avoiding gratuitous insult of an already tremendously oppressed group of people is more important than their tradition.

Or people and organizations can decide that they do not wish to avoid giving offence and then we know that the insult is not unintentional.

That’s the beauty of free speech: those putting it to use in the most upsetting ways are letting you know exactly who you are dealing with . . . and you can react accordingly. Edward Keenan writes on city issues ekeenan@thestar.ca. Follow: @thekeenanwire