The Supreme Court Offers a Warning on Free Speech

The U.S. Supreme Court handed down two notable victories for free-speech advocates on Monday as it nears the end of its current term. The two First Amendment cases came to the Court from starkly different circumstances, but the justices emphasized a similar theme in both rulings: Beware what the free-speech restrictions of today could be used to justify tomorrow.

In the first case, Matal v. Tam, the Court sided with an Asian-American rock band in Oregon named The Slants in a dispute with the U.S. Patent and Trademark Office. The PTO had denied band member Simon Tam’s application to register the group’s name as a trademark, citing a provision in federal law that prohibits the office from recognizing those that “disparage” or “bring … into contempt or disrepute” any “persons, living or dead.”

Tam said his band was trying to reclaim and subvert the term “slants,” a racist and denigrating slur for Asians, in a method similar to how the LGBT community re-appropriated “queer.” When the PTO said the disparagement clause barred it from approving Tam’s application, he filed a lawsuit in federal court and claimed its refusal violated his right to free speech and expression. The Federal Circuit Court of Appeals sided with him and struck down the clause as a violation of the First Amendment.

The office tried to defend the disparagement clause on multiple grounds, including the argument that registering trademarks amounted to government speech—a classification that isn’t regulated by the First Amendment. The Court narrowly reached a similar conclusion two years ago in Walker v. Texas Sons of Confederate Veterans when it sided with the state’s Department of Motor Vehicles against a neo-Confederate group that sought license plates bearing Confederate insignia. But the justices rejected that argument Monday as nonsensical on its face.

“If the federal registration of a trademark makes the mark government speech, the federal government is babbling prodigiously and incoherently,” Justice Samuel Alito wrote in his opinion for the Court. “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.”

The Court’s ruling is likely to resolve a parallel legal battle over the Washington Redskins trademark in the team’s favor. A PTO appeals board revoked six of the team’s trademarks in 2014 for violating the disparagement clause in response to a petition filed by a group of young Native American activists, who told the board that the trademarks were racial slurs. The team filed a lawsuit shortly thereafter, but a federal district court upheld the board’s decision.

With the clause struck down, the team will almost certainly win its challenge of that ruling in the Fourth Circuit Court of Appeals. Dan Snyder, the team’s owner, told the Washingtonian he was “thrilled” by the Tam ruling. He had filed a brief with the court urging it to back The Slants’ position, while a group of Native American organizations and tribes had urged the Court to view the offensive trademarks as commercial speech, a category in which courts have given state and federal governments broader deference to regulate.

The justices strongly rejected that stance, citing its potential for abuse if applied to the disparagement clause. “It is not an anti-discrimination clause; it is a happy-talk clause,” Alito quipped. In one example, he argued that with leeway so expansive, the provision could one day be used to target trademarks that disparage sexists, racists, and homophobes instead of trademarks issued by those people themselves.

“The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates,” he explained. “If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”

Anthony Kennedy echoed those themes in a concurring opinion in which he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. “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,” he wrote. “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.” Accordingly, the justices sided with Tam and his band.

The plaintiff in the other free-speech case, Packingham v. North Carolina, was far less sympathetic. When he was a 21-year-old college student in 2002, Lester Packingham pled guilty to a sexual crime involving a 13-year-old girl. North Carolina law automatically required him to register in the state’s sex-offender database. Six years later, the state passed a law making it a felony for registered sex offenders to access a “commercial social-networking site.” The statute defined what falls under that definition with incredible breadth: Alito wrote in his concurring opinion that accessing Amazon, Walmart, and WebMD could violate the law.

In Packingham’s case, the accessed website was closer to what the law’s drafters seemed to have in mind. After winning a traffic-court dispute in 2010, he posted a celebratory remark on Facebook. “Man God is Good!” Packingham wrote. “How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!” A police officer saw the statement and arrested him for it; Packingham’s lawyers say more than 1,000 other registrants have been charged and tried under the same provision.

The eight justices who heard his case—Neil Gorsuch didn’t join the Court in time to participate in Packingham or Tam—unanimously ruled in his favor and struck down the North Carolina statute in question. But they sharply differed in their style and approach to the underlying issues. Kennedy, for example, adopted the contemplative, nebulous tone he typically reserves for landmark decisions on abortion or LGBT rights.

“While we now may be coming to the realization that the cyber age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be,” he wrote for the Court. “The forces and directions of the internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.”

From Kennedy’s perspective, this meant the Court should exercise “extreme caution” before limiting the First Amendment’s application to the internet, even when the restrictions target one of society’s most universally loathed groups. “It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences,” he explained. “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.”

Kennedy’s opinion drew some criticism from Alito, who concurred with the overall result but wrote separately because of his dissatisfaction with Kennedy’s “undisciplined dicta,” the formal term for the extraneous parts of a judge’s opinion that don’t directly affect the case itself. “The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks,” Alito wrote, metonymously referring to Kennedy and his majority opinion’s sweeping language. Chief Justice John Roberts and Justice Clarence Thomas joined him.

But Alito’s prodding appeared not to deter Kennedy from warning in broad terms about the inherent dangers of a censorious impulse, especially if it could one day be turned against even those with noble intentions to fight bigotry and crime. “The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it,” he wrote, referring to the internet’s reshaping of human society. “And when awareness comes, they still may be unable to know or foresee where its changes lead.”