Naming your kid ‘Hashtag’ may be dumb. But should it be illegal?

November 29, 2012

The baby name book of the future?

We at Wonkblog are fairly big fans of Twitter, but apparently not as much as a San Francisco couple, who saw fit to name their child "Hashtag." A predictable wave of outrage ensued, complete with an obligatory defense of the name in Slate. But despite the battering they've taken online, Hashtag's parents should feel lucky. It may be hard to name your kid "Hashtag" in the United States. But it's not illegal.

That's not the case in many other countries. As the legal scholar Audrey Guinchard has explained, there is a big difference between the way countries inspired by the British "common law" tradition — notably former colonies like the United States and Canada — those in the "civil law" tradition inaugurated by the Napoleonic Code spread by the French empire at the start of the 19th century. Common law countries tend to take a laissez-faire approach to names, generally deferring to parental judgment, but civil law countries are more stringent.

In particular, civil law countries in Scandinavia crack down hard on aberrant naming choices. Denmark has perhaps the strictest naming laws in the world, meant to halt confusion caused by the country's tradition practice of giving children their fathers' first names as surnames (e.g., the son of Johan would be named "Johansen"). Unisex names are banned (sorry, no Alex or Cameron), as are names that could also function as last names. Parents are required to pick from 7,000 preapproved names, or else initiate a lengthy appeals process to get approval for a name not on the list.

Same deal in Sweden, where parents fought to name their son "Q," and had to show that he was not named after the gadgets specialist from the Bond films (the name eventually won approval). Even some common law countries have gotten in on the act, with Australia and New Zealand adopting naming regulations, albeit milder ones than their European peers. Australia, for instance, bans names that double as statements (e.g. "Down with Capitalism"), which include formal titles recognized in Australia law (so Lady Bird Johnson's name would be illegal) or are "contrary to the public interest for another reason."

The European laws have prompted (unsuccessful) legal challenges in the European Court of Human Rights, focused on allegations that the rules furthered sexist norms about surnames. But legal scholars argue that similar rules in the United States likely wouldn't pass constitutional muster. Carlton Larson, a law professor at UC Davis, has argued that name regulations would be subject to "strict scrutiny," which means that regulations would have to serve a "compelling government interest," be narrowly tailored to serve that interest, and be the least restrictive possible way of serving it.

That implies, Larson writes, that the law cannot, as officials in California have, bar names like Lucía which use non-English accents or characters, but they cannot also ban names like "Adolf Hitler Campbell," given that to do so would be to impinge on the speech rights of neo-Nazis. Julia Shear Kushner agrees, arguing that very few restrictions would pass constitutional muster. A New Mexico may be in its rights to ban someone from adopting the name, "F— Censorship!" but not to ban the names "Variable" or "Snaphappy Fishsuit Mokiligon" (two real names of a person who tried to rename himself "F— Censorship!").

As it stands, most U.S. states only bar obscene names, those with numerals or lacking a surname, or pictograms (which Larson notes would rule out Prince during his Love Symbol phase). A few states, including Kentucky, South Carolina, Washington, Maryland, Delaware and Montana, at least claim to have no restrictions whatsoever.

So Hashtag's parents can rest easy. They may not be able to name their kid "#", but banning the name "Hashtag" is probably unconstitutional.

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Michelle Williams · November 29, 2012