Rare Free Speech Victory in the Supreme Court

Even rarer, the Court unanimously agreed with a federal appellate court that free speech is “…a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The case, Matal v. Tam (No. 15-1293, 2017), centered on a musical band, The Slants, whose band name trademark application was denied by the United States Patent and Trademark Office on the grounds that it is offensive to Asians, and “may disparage …persons, living or dead, institutions, beliefs or national symbols,” as the 1946 Lanham Act’s offending language heretofore prevented.

The band members successfully argued before the appellate court that the First Amendment protects such speech, even when perceptively offensive, but the Government subsequently appealed to the highest court in the land.

I have to admit, given the nature of political correctness and censorship in the supposed name of social justice that dominates politics today – from Left and Right – I expected the Court to rule against The Slants in this case.  Particularly, while I wholeheartedly disagree, I expected the Government’s case – that trademarking is not private speech, but instead government speech, and thusly not entitled to First Amendment protections – to succeed.

Perhaps a bigger question is: where exactly is the authority granted to the federal government to license speech in the first place, constitutionally, even under the auspices of protecting intellectual property?  In any event, I thought the Government’s case here was just devious enough of an end-around to work the necessary magic in rationalizing yet more government overreach.  Happily, I was mistaken: “The [Lanham Act’s] disparagement clause violates the First Amendment’s Free Speech Clause.  Contrary to the Government’s contention, trademarks are private, not government speech.”

Further: “…if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavorable viewpoints.”  And hilariously: “It is thus farfetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently” (emphasis added).    And finally: “Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension for the government-speech doctrine…”

While I do not support being offensive for its own sake, I recognize that such arbitrarily subjective conclusions cannot ever justly form the foundation of any real or consistent rule of law.

If the concept of free expression applied only to speech with which we all agreed, there would be no logical need for such protections in the first place.


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