Supreme Court Protects Free Speech in Two New Decisions

Speaking to a graduating class of Catholic seminarians in Philadelphia in May of this year, Justice Samuel Alito warned against growing incursions on the right of free speech, observing that “The idea that speech can be banned if it expresses an idea that is offensive is spreading around  the country.” Fortunately, the Supreme Court under Chief Justice Roberts has consistently been a voice vigorously protecting the right of free speech. Two decisions announced today continue that trend, validating Professor Richard Garnett’s previous statement that “it is crystal-clear that this is a free-speech court.”

In the first decision, Matal v. Tam, No. 15-1293 (June 19, 2017), Justice Alito wrote the opinion of the court which ruled that the Patent and Trademark Office impermissibly denied registration to the trademark “Slants” filed by a dance rock band of Asian-Americans who sought to reclaim the term and drain its denigrating force for Asian persons. In its ruling, the court found that a provision of the Lanham Act which prohibited the registration of any trademark that may “disparage… or bring… into contemp[t] or disrepute” any “persons, living or dead” was unconstitutional because it “violates the Free Speech Clause of the First Amendment.”

The majority of the court rejected several arguments seeking to uphold the disparagement provision of the Lanham Act. Writing for a majority of the court, Justice Alito concluded that granting a trademark does not represent government speech. This was an extremely significant ruling since the court had previously held that the Free Speech Clause does not apply to such speech. See,e.g., Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015) (the wording on state-issued speciality license plates constitutes government speech). Significant to the Matal ruling were clear statements by the Patent and Trademark Office that registration does not constitute approval of a trademark.

After declined to decide whether a trademark represents commercial speech, a majority of the court ruled that the disparagement provision was not ” ‘narrowly drawn’ to drive out trademarks that support invidious discrimination.” Characterizing the provision as a “happy-talk clause,” Justice Alito noted that it would prohibit registration of innumerable  marks which “disparage.. any person, group, or institution,” including trademarks such as “Down with racists.”

The court concluded that the disparagement provision represented impermissible discrimination on the basis of viewpoint. As Justice Alito put it, “It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.”

The court’s decision was unanimous, although there were multiple opinions on the various issues raised by the case, particularly as they related to the controlling standard of review.

(One happy result of the ruling, at least for long-term supporters of the Washington National Football League team, is that it likely would permit continued registration of the Washington Redskins trademark.)

In the second case decided today, Packingham v. North Carolina, No. 15-1194 (June 19, 2017), the Supreme Court considered whether the Free Speech Clause prohibited a state from barring registered sex offenders from accessing social media sites. The court found that a statute which broadly prohibited access to any social media site impermissibly restricted lawful speech, and thus violated the First Amendment.

In the case before the court, a registered sex offender was prosecuted after posting a statement on his personal Facebook profile about a positive experience he had in traffic court. While the justices divided by a five-to-three split on just how far free speech protections of internet sites might extend, they agreed that the North Carolina statute at issue was far too restrictive, essentially barring any registered sex offender, for example, from ordering books from Amazon, reading the Washington Post online, or consulting WebMD on personal medical issues. In the opinion of the Court, Justice Kennedy concluded that “Even convicted criminals– and in some instances especially convicted criminals– might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”

At a time when universities, media corporations, special-interest groups, and other powerful entities are seeking to censor viewpoints with which they disagree, the Supreme Court functions as an emergency brake against attempted censorship. This is an important vindication of the First Amendment and underscores the importance of the Supreme Court in American life today.




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