It’s that time of the year again, and the Supreme Court is working furiously to wrap up whatever big decisions they have left over before they break for the summer — which could be an odd one if the justices somehow decide to use the warmer months to weigh the future of Donald Trump’s infamous travel ban. Yes, it’s possible.
Without Obamacare or same-sex marriage to protect, it’s back to more standard-issue but equally important rulings, and on Monday the high court issued a pair of decisions that, in some sense, were a big victory for what the First Amendment means or ought to mean in the era of hate speech, safe spaces, and trigger warnings.
In the first case, Matal v. Tam, the Supreme Court essentially ruled that a person can potentially trademark offensive or “disparaging” trademarks, even those society may deem racist. The decision was a big win for the Slants, an Asian-American band whose founder, Simon Tam, has been waging war against the U.S. Trademark and Patent Office for denying his band trademark protection under a provision of federal law that forbids trademarks that may “disparage … persons living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
In a largely unanimous opinion by Justice Samuel Alito — more on this later — the Supreme Court said that this “disparagement clause” of trademark law violates a bigger one found in the Constitution: the free-speech clause of the First Amendment, and thus the government can’t enforce it however it pleases. “Speech may not be banned on the ground that it expresses ideas that offend,” he wrote, joined by everyone on the court except Justice Neil Gorsuch, who hadn’t yet been nominated when the high court heard the case.
In the Slants case, the biggest problem for the justices is the seemingly incoherent fashion in which the federal trademark office is approving or disapproving offensive trademarks, a lack of a guiding principle, if you will: “If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently,” Alito wrote, rejecting the government’s view that it is simply engaging in “government” speech and no one’s free speech was being infringed. “It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public.”
This language is naturally a victory for Tam, who had fought the government to “reclaim” the unseemly word “Slants” from racial stereotypes and use it for the empowerment of Asian-Americans. But not so fast: By its own terms, the decision is also a major victory for the Washington Redskins, whose own controversial trademark had been cancelled by the Obama administration and was depending on the Supreme Court’s final word in Tam’s case to see how its own legal fight to save its name would end up.
Here’s the thing: Tam hates the Redskins and everything the team’s name stands for, and has gone to great lengths to explain why their case and his are not the same. “Redskins always has been used as a racial slur and has a long history of demeaning Native Americans. ‘Slant’ has not,” he wrote in a blog post in his band’s website last year, apparently ignoring that Native American organizations filed a brief against his bid to save his band’s name from government censorship. When all is said and done, it’s quite likely Tam just handed his nemesis their name back.
But to Alito and three of his colleagues — Chief Justice John Roberts and Justices Clarence Thomas and Stephen Breyer — all of this seems to amount to splitting hairs, because, in the end, even trademarks that may communicate hateful sentiments are covered by the First Amendment: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.”
From this decision one could deduce that at least four Supreme Court justices aren’t down with political correctness in the trademark-approval business — and maybe even other contexts — and thus would rather see the government completely out of of it:
The [disparagement] clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.
The First Amendment also saw a third big winner Monday, a registered sex offender from North Carolina who had the misfortune of getting prosecuted in 2010 for posting on Facebook that “God is good” after he beat a traffic ticket. Due to an earlier conviction for having sex with a minor when he was 21, a state law prohibited him from visiting “commercial social-networking” websites where users can create “personal profiles” and “communicate with other users,” who may or may not be minors. In this day and age, however, even the comments section of this site would fall under this broad definition.
In Packingham v. North Carolina, the Supreme Court recognized this overbreadth and struck down the law as unconstitutional. It fell to Justice Anthony Kennedy, who likes to offer sweeping language about sweeping infringements on civil liberties, to side with the man at the center of the case, Lester Packingham. After warning that nothing in his opinion should be read as a blanket prohibition on more “narrowly tailored” laws aimed to keep sex offenders in check, Kennedy nonetheless had a lot of nice things to say about the internet and social media.
By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to become a town crier with a voice that resonates farther than it could from any soapbox.
Yes, we all do exactly that and then some. Especially on the Big Three — Facebook, Twitter, and LinkedIn — all of which were name-checked by Kennedy as a haven for the kind of free speech and association that brings out the best in us. On Facebook, he wrote, users politely “debate religion and politics with their friends and neighbors or share vacation photos.” Twitter, meanwhile, is a platform where we can essentially interact with Donald Trump and other “elected representatives,” with whom we can “engage … in a direct manner” as part of the democratic process. And LinkedIn has all the jobs — a place where we “can look for work, advertise for employees, or review tips on entrepreneurship.” Put simply, the range of First Amendment things we can do in these fora, Kennedy wrote, is as “diverse as human thought.”
No word if Kennedy, who is 80, even has an account on any of these sites. But his grand vision of the virtual public square aside, his words could prove to be a big headache for the president, or at least those who manage his Twitter feed. Trump has been catching flak and may soon be slapped with a First Amendment lawsuit for blocking constituents who troll him. The Supreme Court may have just resolved that our chief executive can’t just do that.