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. 1 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.
It’s obvious that the band’s choice of name is itself an act of speech. All of the group’s members are in fact Asian American, and they have argued from the start that they chose “The Slants” as an act of “reappropriation” -- that is, they are taking a pejorative and reversing its significance. But even had the band’s goal been less progressive, the constitutional problem would remain. The First Amendment protects not admirable speech or good speech or likeable speech. It protects speech.
The court firmly rejected efforts to save the disparagement clause. “No matter how the point is phrased,” wrote Justice Samuel Alito in his plurality opinion, “its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend.” That argument, eight justices 2 agreed, is contrary to the First Amendment. 3
When I wrote about the case back in January, I pointed out that the disparagement clause of federal trademark law is a relic of the post-World War II era, when the felt need to enforce a uniformity of values led to public and private efforts to curtail speech considered offensive. Comic books and movies were censored. Certain music could not be played. You could be arrested for cursing in public. Over the years the disparagement clause has been used to deny registration for hundreds of marks, including “Madonna” and “Messias” (both for wine) and “Pussy” (for nonalcoholic beverages). Most famously, the courts have recently used the disparagement clause to strike down federal registration of the trademarks owned by the Washington Redskins. After Monday’s decision, the team will get its marks back.
We live in an era in which expression enjoys far more robust protection than the post-war period when the disparagement clause was adopted. That’s a very good thing. True, not all of the consequences of our freedom are happy. I wish the world were less coarse than it has become. I wish that our political discourse were more civil, that social media did not use outrage to chase clicks, that popular entertainment featured less vulgarity and raunch. But I shudder at the thought that cleaning things up is the job of government.
When we try to limit speech we find offensive we put the decision into the hands of bureaucrats -- exactly the wrong place. The same power that can restrict speech that hurts can restrict speech that gladdens. Alito acknowledged this point in what was surely a signal that the courts should not look kindly on efforts to regulate so-called hate speech:
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 we hate.’
Justice Anthony Kennedy, in a concurring opinion joined by three of his colleagues, put the point differently. Even speech we hate, he pointed out, can wind up teaching us:
The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. The danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. An initial reaction may prompt further reflection, leading to a more reasoned, more tolerant position.
This is not, perhaps, a comfortable message for the era when the instinct of the offended is to swarm forth in anger and shut down unpopular campus speakers or presentations of Shakespeare. We as a people have never been very good at tolerating what we find intolerable. Nowadays in particular, we seem unable to imagine that we might learn anything from those with whom we disagree. Instead we too often retreat childlike to intellectual bubbles and political echo chambers where nothing we believe will be disturbed or even challenged. So perhaps the true message of Matal v. Tam is that it’s time for us to grow up.
The disparagement clause, Section 2(a) of the 1946 Lanham Act, bans registration of marks that the Patent and Trademark Office finds “may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” As the court notes, the provision has not been amended since its enactment.
Justice Neil Gorsuch was not involved in the case.
In his plurality opinion (some parts of which are also the opinion of the court), Justice Alito was called upon to navigate some tricky shoals. There is not space to discuss all of them here, but one bears mention. In order to strike down the disparagement clause, the justices had to find a way to distinguish the many cases allowing the government to restrict speech that it subsidizes. Alito’s answer was that the programs where the Supreme Court has allowed government to refuse to support some viewpoints and favor others all involve direct cash payments, whereas here the applicant pays the government. It is true, he wrote, that benefits arise from trademark registration, but the same is true when the state registers real estate or issues “driver’s licenses, motor vehicle registrations, and hunting, fishing, and boating licenses or permits.” The distinction is not entirely persuasive but it is perfectly practical and draws a clear line for later application -- exactly the qualities one wants in a Supreme Court opinion.
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