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A Bit of Good News from SCOTUS: Matal v. Tam

 

I fear it will pass with little notice, but this morning the Supreme Court issued an opinion in Matal v. Tam that should cheer us all.

We live in a world where congress critters of the blue persuasion have proposed amending the First Amendment to permit government “regulation” (read: suppression) of political speech and where the campuses of universities supposedly dedicated to free inquiry have become “speak at your own risk” zones patrolled by baseball bat wielding snowflakes. But in the Supreme Court of the United States, the right to speak is still respected and regarded as central and fundamental to the functioning of our democratic polity and our public debates.

Very briefly, Tam is a case brought by a rock band that calls itself “The Slants.” The band members are Asian-American and the band name is an ironic co-option of a racial slur, not unlike the use of the “N word” by African-Americans or the “F word” by gay men. By claiming it as our own, we defang it, or so we gays tell each other about the F word. That appears to be what The Slants are seeking with their band name.

In any event, the band sought to trademark their name and their application was denied by the Patent and Trademark Office under 15 U.S.C. Section 1502(a), a section of the Lanham Act which prohibits the registration of a trademark that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.”

Today all eight justices (Justice Gorsuch did not arrive on the Court in time to participate) held this anti-disparagement provision flatly unconstitutional.

The majority opinion is fairly lengthy, providing quite a bit of history of trademark law and taking the time to dismantle several (silly) government arguments, but what I think is the central paragraph of its analysis reads:

[N]o matter how the point is phrased, [the] unmistakable thrust [of the government’s argument] is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of 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.”

There were two concurring opinions to go with the majority but both concurred in the holding and neither undermines the central point of the Court’s analysis — that the government may not engage in viewpoint discrimination against speech it finds offensive. It is particularly gratifying to see even the justices conventionally considered on the left standing up for this principle, even in a case involving race.

There may be hope for us yet.

Published in Law
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Members have made 24 comments.

  1. Profile photo of Nanda Panjandrum Thatcher

    This gimp/crip[ple] says: Yay!

    • #1
    • June 19, 2017 at 11:17 am
    • Like10 likes
  2. Profile photo of RightAngles Member

    Great news indeed.

    • #2
    • June 19, 2017 at 11:21 am
    • Like6 likes
  3. Profile photo of Isaac Smith Member

    Good decision.

    Not sure about the band.

    • #3
    • June 19, 2017 at 12:24 pm
    • Like3 likes
  4. Profile photo of Gumby Mark Thatcher

    I’ve been interested over the past few years in trying to figure out the doctrinal distinction between the cases in which the four liberals on the court have recognized a liberty interest and those where they have not.

    On the one hand, there have been a surprising number of unanimous decisions in which they’ve joined the non-liberals in rejecting the most extreme positions of the Obama justice department, as in this case. The EPA case (Sackett) and the DOJ attempt to oversee hiring and firing decisions by religious institutions for religious positions come to mind quickly.

    On the other hand, they’ve staked out key policy areas where they vote as a bloc to uphold strategic aspects of liberal doctrine – a commerce clause without limits, abortion etc. Ginsberg was actually quoted in the Times that they had decided to vote as a bloc of certain issues and not even issue concurring opinions. For example, I suspect some of them gagged on the rationale Kennedy used in the Obergfell case but they liked the result and didn’t bother with concurring opinions in which they could set out alternative grounds for the decision.

    At least for now these justices, particularly Kagan and Breyer, seem willing to resist some of the most extreme identity politics/post-modernist approach this has gained so much traction with rank and file progressives. What is worrisome is that if you look at many of Obama’s appointees to the lower courts they are all-in on identity/post-modernism.

    • #4
    • June 19, 2017 at 12:26 pm
    • Like2 likes
  5. Profile photo of Doug Kimball Member

    This Opie-Cracker says Huzzah!

    • #5
    • June 19, 2017 at 12:55 pm
    • Like3 likes
  6. Profile photo of Cato Rand Member
    Cato Rand Post author

    Gumby, I think you might spend a long time searching if you’re looking for some doctrinal or jurisprudential consistency. I think the left leaning justices (and to a certain extent the right leaning ones, Justice Thomas excluded) are a little more results driven than that.

    There are certain pre-existing commitments they have and their decisions tend to reflect that. Abortion, for example, is a sacrament to the four left leaners, just as it is for much of the left in America.

    The commerce clause (or the limited and enumerated nature of federal power) doesn’t even exist as an issue. It’s just settled law in their minds that it provides blanket police power to the federal government and anybody who doubts that is a fringe whacko. It doesn’t even merit discussion.

    Speech is a different issue. Keep in mind the age of these guys. Ginsburg and Breyer are octagenarians. Sotomayor is in her 60s. Only Kagan of the four is under 60. So as a general proposition, their formative years were a time when free speech was defended on the left, even more so than on the right. It’s only fairly recently that the left has done a 180 on the issue and the anti-free speech energy seems to be among the young who don’t appreciate what they have, any more than they do the air they breathe. In short, I think the left leaning justices respect free speech rights in their guts in a way they don’t, e.g. the commerce clause and the limits on federal power, which has been a dead letter their whole lives.

    As for Kennedy and Obergefell, I suspect they were fine with his reasoning. It was right out of the Griswold/Roe playbook and in keeping with Justice Kennedy’s “sweet mystery of life” jurisprudence on matters involving sex, family and reproduction.

    If there’s a consistency to their jurisprudence, I’d say ask yourself this: “how would a hippie have resolved this case during the Summer of Love?” If you can answer that question, there’s a very high probability you know how each of them will vote.

    • #6
    • June 19, 2017 at 1:02 pm
    • Like11 likes
  7. Profile photo of Jon Gabriel, Ed. Chief

    Good thing these progressive legal minds weren’t around for NWA.

    • #7
    • June 19, 2017 at 1:25 pm
    • Like5 likes
  8. Profile photo of Cato Rand Member
    Cato Rand Post author

    Kudos to whichever editor promoted this post for finding awesome cover art!

    • #8
    • June 19, 2017 at 1:40 pm
    • Like3 likes
  9. Profile photo of Percival Thatcher

    To the precious snowflakes:

    Doug Kimball (View Comment):
    This Opie-Cracker says Huzzah!

    Opie-Cracker? Cracker I got.  Warum Opie?

    • #9
    • June 19, 2017 at 1:54 pm
    • Like2 likes
  10. Profile photo of civil westman Member

    The timing and unanimity are both fortunate, considering the recent interment of speech in ivory towers pretending to be institutions of higher learning. Perhaps by the light of the Court’s resurrection of free speech, administrators of these benighted institutions may be able to look about and find their lost gonads.

    Actually, I suspect many administrators approve of their students’ fascism. For those few scholars who still believe in diversity of thought and lack courage, the ruling may be bracing.

    • #10
    • June 19, 2017 at 2:47 pm
    • Like3 likes
  11. Profile photo of Pugshot Member

    This is very important. Thanks @catorand for bringing it to my attention. I went out earlier today to have a Michael Ramirez cartoon that I purchased framed. It shows a college student with a PC University sweatshirt beating a prone figure labeled “Free Speech” with a protest sign labeled “Tolerance.” My only hope is that at some point these morons on the Left will wake up and realize that the 1st Amendment is all that stands between them and oblivion.

    • #11
    • June 19, 2017 at 3:21 pm
    • Like5 likes
  12. Profile photo of Gumby Mark Thatcher

    As an indicator of future trends in the legal establishment it is discouraging that 30 law school professors signed on to an amicus brief in support of the trademark office coauthored by Rebecca Tushnet, inaugural Frank Stanton Professor of First Amendment Law at Harvard Law School, while only 10 joined the amicus coauthored by Floyd Abrams, a long time advocate for First Amendment rights.

    • #12
    • June 19, 2017 at 3:49 pm
    • Like2 likes
  13. Profile photo of Z in MT Member

    This is a great and important decision.

    At least we have the liberal justices on the record in favor of free speech for disparaging and or offensive speech.

    How do the liberal justices square this stance with their opposition to free political speech, aka Citizens United?

    • #13
    • June 19, 2017 at 3:52 pm
    • Like3 likes
  14. Profile photo of Cato Rand Member
    Cato Rand Post author

    Z in MT (View Comment):
    This is a great and important decision.

    At least we have the liberal justices on the record in favor of free speech for disparaging and or offensive speech.

    How do the liberal justices square this stance with their opposition to free political speech, aka Citizens United?

    Interesting question. The short answer is that Citizens United is not mentioned in any of these opinions, so who knows? The slightly longer answer is that ever since Buckley v. Valeo the Court has always allowed at least a little bit of room for the regulation of campaign speech, i.e. speech supporting or opposing a particular candidate. Citizens United did involve such speech (it was about a decidedly anti-Hillary movie released in 2008 when she was running for president). I personally think the line of cases allowing such restrictions is BS. I remember the first time I read Buckley in law school I was shocked by it. But that line of reasoning IS part of our jurisprudence and it significantly pre-dates any of our current justices.

    • #14
    • June 19, 2017 at 4:34 pm
    • Like2 likes
  15. Profile photo of Cyrano Member

    From Justice Kennedy’s opinion:

    “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

    • #15
    • June 19, 2017 at 4:34 pm
    • Like5 likes
  16. Profile photo of Umbra Fractus Coolidge

    Nanda Panjandrum (View Comment):
    This gimp/crip[ple] says: Yay!

    Doug Kimball (View Comment):
    This Opie-Cracker says Huzzah!

    This ol’ coonass can’t help but wonder how this would have turned out if the band members had been white.

    • #16
    • June 19, 2017 at 5:10 pm
    • Like3 likes
  17. Profile photo of Mike H Thatcher

    YES! I remember hearing about these guys. I’m so happy for them (and the rest of America).

    • #17
    • June 19, 2017 at 6:12 pm
    • Like2 likes
  18. Profile photo of Jules PA Member

    Pugshot (View Comment):
    My only hope is that at some point these morons on the Left will wake up and realize that the 1st Amendment is all that stands between them and oblivion.

    Right.

    • #18
    • June 19, 2017 at 7:21 pm
    • Like2 likes
  19. Profile photo of CB Toder aka Mama Toad Member

    Cato, sorry I had missed this post this morning when I put this up. Good stuff.

    • #19
    • June 20, 2017 at 8:41 am
    • Like2 likes
  20. Profile photo of Doug Kimball Member

    Percival (View Comment):
    To the precious snowflakes:

    Doug Kimball (View Comment):
    This Opie-Cracker says Huzzah!

    Opie-Cracker? Cracker I got. Warum Opie?

    Breaking Bad’s Jesse calls Todd, the heartless killer, “a dead-eye, Opie, piece of s…”, a nod to Opie, the young son of Andy in the Andy Griffith Show, played by a very young Ron Howard. An “Opie” is thus, a white as white cracker.

    • #20
    • June 20, 2017 at 9:50 am
    • Like1 like
  21. Profile photo of Arizona Patriot Member

    Cato Rand

    Very briefly, Tam is a case brought by a rock band that calls itself “The Slants.” The band members are Asian-American and the band name is an ironic co-option of a racial slur, not unlike the use of the “N word” by African-Americans or the “F word” by gay men. By claiming it as our own, we defang it, or so we gays tell each other about the F word. That appears to be what The Slants are seeking with their band name.

    Oh boy, I’m really out of touch. I thought that I knew what the “F word” was. I do see your point, Cato, which presents us with the practical problem of having two verboten “F words.”

    I look forward to listening to this new band, the S word.

    • #21
    • June 20, 2017 at 9:55 am
    • LikeLike
  22. Profile photo of Arizona Patriot Member

    By the way, the Tam in Matal v. Tam is Simon Tam, lead singer of The (um) “S-word.” If they lost the case, perhaps they could have renamed the band Firefly.

    • #22
    • June 20, 2017 at 9:58 am
    • Like1 like
  23. Profile photo of Percival Thatcher

    Doug Kimball (View Comment):

    Percival (View Comment):
    To the precious snowflakes:

    Doug Kimball (View Comment):
    This Opie-Cracker says Huzzah!

    Opie-Cracker? Cracker I got. Warum Opie?

    Breaking Bad’s Jesse calls Todd, the heartless killer, “a dead-eye, Opie, piece of s…”, a nod to Opie, the young son of Andy in the Andy Griffith Show, played by a very young Ron Howard. An “Opie” is thus, a white as white cracker.

    Okay. I suspected it hearkened back to Eddie Murphy calling Ron Howard “Opie Cunningham.”

    • #23
    • June 20, 2017 at 10:00 am
    • Like1 like
  24. Profile photo of Arizona Patriot Member

    Cato, I agree that this is a good result, and I also agree that the portion of Alito’s opinion that you quoted is the central paragraph of his opinion:

    [N]o matter how the point is phrased, [the] unmistakable thrust [of the government’s argument] is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of 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.”

    Unfortunately, this is a confusing case overall, because the “central paragraph” that you quoted is in Section IV, in which he was joined by only 3 other Justices (Roberts, Thomas, Breyer).

    I do agree that the concurring opinion by Kennedy (joined by Ginsburg, Sotomayor, and Kagan) does not undermine this point, as it states:

    A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

    Still, it would have been nice if all 8 Justices deciding the case* had been able to unite in something like the “central paragraph.”

    *Justice Gorsuch did not participate in the case.

    • #24
    • June 20, 2017 at 10:22 am
    • Like1 like