BY HANK REICHMAN
In two free speech decisions with minimal direct relevance to higher education, the U.S. Supreme Court today ruled, first, that the federal government cannot refuse to register trademarks that the government deems offensive on racial, religious or similar ground and, second, that a North Carolina law making it a felony for a registered sex offender to access social networking websites open to children is unconstitutional.
In Matal v. Tam the court ruled, 8-0, in favor of Simon Tam, the front man for an all-Asian-American rock band known as “The Slants.” The U.S. Patent and Trademark Office had declined to register the band’s name, citing a law that denied trademarks that disparage individuals, institutions, beliefs or national symbols. The eight justices who considered the case held that the clause banning registration of disparaging trademarks violates the First Amendment.
“It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” Justice Samuel Alito wrote. “It is far-fetched to suggest that the content of a registered mark is government speech. If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently,” Alito wrote. “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 decision will surely have an impact on legal challenges to the name and symbols of the Washington Redskins NFL football team and, perhaps, to some college and university team names or mascots. The Redskins owners supported the band’s challenge to the rule.
Despite the unanimous verdict, the justices failed to produce a majority on precisely what legal standard to apply in the case. Four justices filed a concurring opinion that suggested their colleagues were going too far in seeking to protect commercial speech. They appeared concerned that giving too much protection to businesses could undercut legitimate government regulation against false advertising and misleading marketing.
“It is well settled, for instance, that to the extent a trademark is confusing or misleading the law can protect consumers and trademark owners,” Justice Anthony Kennedy wrote, in an opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. “This case does not involve laws related to product labeling or otherwise designed to protect consumers….These considerations, however, do not alter the speech principles that bar the viewpoint discrimination embodied in the statutory provision at issue here.”
Justice Steven Breyer joined with the court’s most conservative justices in endorsing Alito’s warning of the dangers of trying to regulate commercial speech.
“There is…a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense,” Alito wrote, joined by Breyer as well as Chief Justice John Roberts and Justice Clarence Thomas. “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. If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”
Alito also noted that the clause seems to ban disparaging anyone about anything, so doesn’t seem to be particularly useful at protecting minorities. “It applies to trademarks like the following: ‘Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes.’ It is not an anti-discrimination clause; it is a happy-talk clause,” he wrote.
The decision did not address other parts of trademark law that ban registration of “immoral” or “scandalous” marks. Justice Neil Gorsuch did not take part in the ruling.
In the North Carolina case, Justice Kennedy, joined by Justices Breyer, Ginsburg, Kagan, and Sotomayor, wrote in Packingham v. North Carolina that the state’s ban on social media use is “unprecedented in the scope of First Amendment speech it burdens.”
“With one broad stroke,” Kennedy said, the law bars registered sex offenders from accessing news websites, checking help wanted ads, “speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”
“While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace,” Kennedy said.
Justice Alito concurred in the judgment in an opinion joined by Chief Justice Roberts and Justice Clarence Thomas. Justice Gorsuch did not participate in the case.
Alito said he agreed the law violated the free speech clause because of its “extraordinary breadth.” But Alito explained that he couldn’t join the majority opinion “because of its undisciplined dicta. The court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.” The majority’s language could leave the states “largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with the peers,” Alito wrote.
