Offensive Speech Is Free Speech. If Only We'd Listen.

The government doesn’t get to punish offensive speech. That’s the resounding message of the U.S. Supreme Court’s unanimous decision Monday in Matal v. Tam, which struck down as unconstitutional the provisions of federal trademark law allowing the denial of registration for offensive or scandalous marks. The justices were able to agree on little other than the outcome -- there are three separate opinions, not one of which in its entirety commanded a majority -- but they all reach the same happy conclusion. The federal bureaucracy is the wrong place to adjudicate questions of offensiveness.

The case involved the effort of a band to register its name, The Slants, as a federal trademark. The application was denied under what is sometimes known as the “disparagement clause” of the Trademark Act on the ground that “slants” is an offensive term for Asian Americans.1497892464790 The band appealed. A federal appellate court held that the provision allowing the government to make such judgments violated the First Amendment. Now, happily, the Supreme Court has agreed.