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.