Supreme Court Reminds US Government That Hate Speech Is, In Fact, Free Speech
from the you-may-not-like-it,-but... dept
We've written a few times now about the case involving the band "The Slants" and their fight against the US Patent and Trademark Office concerning whether or not the band could trademark its own name (and, yes, this case is indirectly tied to the fight over whether or not the Washington Redskins can keep its team name trademarked). The key issue is a part of trademark law -- §1052(a) -- that says that the USPTO can deny trademarks if they "disparage... or bring into contempt or disrepute... persons, living or dead." When we first came across this case, a few years back, I argued that this clause did not violate the First Amendment. My argument, originally, was that a failure to grant a trademark was not restricting speech in any way (in fact, it was the opposite -- it was allowing more speech, since the registered trademark could no longer be used to block the speech of others).
But the issue is a tricky one, and after thinking about it more, reading much more and talking to a number of lawyers, my position shifted. And the hinge on which it shifted was this: the problem with 1052(a) was that it involved the government determining whether it "blessed" something with a trademark based on the content. And that, right there, has always been seen as a problem for the First Amendment. The government should not be making any subjective decisions based on expression -- and, yet, under 1052(a) it was. And now... the Supreme Court has agreed with that view and has struck down 15 USC 1052(a) as unconstitutional under the First Amendment, which makes this a big win for the First Amendment. And, on top of that, the Court went so far as to state upfront that a favorite claim of lots of angry people (on all sides of the political spectrum) these days -- that "hate speech" is somehow not "free speech" -- is simply untrue. The full ruling is 39 pages, which includes different Justices agreeing on some parts and not others, and writing separate concurring opinions -- but the overall point is clear. The court notes that the government, itself, is protected by the First Amendment and can take its own viewpoint on things, but this is different, because it's not content created by the government:
At issue here is the content of trademarks that are registered by the PTO, an arm of the Federal Government. The Federal Government does not dream up these marks, and it does not edit marks submitted for registration. Except as required by the statute involved here, 15 U. S. C. §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. Thus, unless that section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Government policy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register. Instead, if the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory.
Thus, there is no legitimate argument that barring the government from rejecting trademarks for disparagement violates the government's own First Amendment rights.
Then, there's the question of whether this is denying someone a benefit based on their constitutionally protected expression. The PTO pointed to a few other cases involving government subsidies, which has said the government can deny subsidies over activities it does not wish to promote. However, the Court rejects the PTO's argument here fairly simply, saying that registering a trademark is quite different than getting a subsidy.
The PTO also argues that this issue deserves less First Amendment scrutiny because -- by definition -- trademarks involve commercial speech. But the Court rejects that and makes its most forceful statement in support of free speech -- even when hateful. It's this part of the ruling that seems likely to be quoted in many free speech cases in the future concerning hateful speech:
But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. 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 that we hate.”
Yes. Demeaning speech is hateful. Yes, hateful speech is generally a bad thing. But, no, we don't block it because the First Amendment strongly protects all such speech, out of a fear that opening up that door will allow in censorship of merely controversial ideas.
And the Supreme Court then also makes another important point, that if you allow the First Amendment to be chipped away on "commercial speech" like this, you create all sorts of other problems:
There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. 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.
You need to protect the speech you dislike because the speech you may like may be disliked by others.
In the end, this is a good win for the First Amendment and for free speech.
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Filed Under: 1st amendment, disparagement, first amendment, free speech, hate speech, scotus, supreme court, the slants, trademark, uspto
Reader Comments
The First Word
“"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 that we hate.”"
Beautiful.
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1st vs. 4th Amendment
"... if you allow the First Amendment to be chipped away on "commercial speech" like this, you create all sorts of other problems"
yet they allow the 4th Amendment to be chipped away.
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Re: 1st vs. 4th Amendment
For decades the courts had no problem blatantly ignoring the 14th amendment and it's equal protections clauses right after it was ratified.
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Re: courts
because court decisions are always arbitrary -- made by specific government bureaucrats in medieval costumes
lotsa implications in this SCOTUS decision -- seems FCC will no longer be able to censor TV/Radio
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"lotsa implications in this SCOTUS decision -- seems FCC will no longer be able to censor TV/Radio"
They never should have been allowed to do that anyways. But talking bad about the FCC here at TD is not a good idea.
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Could you tell me the supplier of YOUR leaded paint chips? Mine obviously lack quality.
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Re: 1st vs. 4th Amendment
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Re: 1st vs. 4th Amendment
When the Gun Control Act of 1968 was challenged in court, SCOTUS ruled that the Act prohibited only weapons that were not militarily useful, and that the 2nd amendment only protected those weapons useful to a militia.
More recently, the 4th Circuit Court of Appeals has ruled that assault weapons are not protected by the second amendment because civilians have no need to own military weapons. Leaving aside the fact that an assault weapon is a hunting weapon with one or more safety or cosmetic features in common with a military weapon, these two decisions taken together mean that ALL can be constitutionally prohibited for civilian ownership in the 4th Circuit!
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It makes sense...
My only concern is that a sudden change of policy results in the trademark equivalent of cybersquatting. I feel it should be incumbent on the trademark office to ensure the registration is for a legitimate business purpose.
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Re: It makes sense...
https://en.wikipedia.org/wiki/List_of_ethnic_slurs
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Re: It makes sense...
Still another avenue for suppression of free speech. The only requirement should be...
"A commercially available product being actively traded under that mark"
Once a mark is not being traded on, it should be restored to the public domain where all can use and no longer made available for registration as a mark.
This means that trademark squatters can only do their worst for a short time and unless they are actively trading a product or service under that mark, they lose it to public domain.
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Even it happen
http://liskgame.com/
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Even if that happens, there is nothing that says people must do business with those who obtain such trademarks.
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If its fair for the goose, then it is fair for the gander.
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https://www.eff.org/deeplinks/2012/09/trademark-abuse-and-gaymer-community
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News flash: All races of people pre-date the First Amendment.
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YAY!
Now...
"The court notes that the government, itself, is protected by the First Amendment and can take its own viewpoint on things, but this is different, because it's not content created by the government: "
My brain hurt trying to read that. The government is not an object that obtains protection from the First. The people of government are protected as citizens, but not as officials during the administration of their duties. I am not really certain what you meant that and the following "quote" did not clarify it either.
The only thing I can think of is that you are implying that they (the defense) tried to use the Lanham Act as a "support" for allowing government to suppress registration because it was found to be offensive.
Considering the age of that Act, you can start to get a good idea of how long free speech has been under assault. Sadly it is still working and many new and ignorant people are STILL like what you once used to be and some even support the complete destruction of the 1st.
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Re: YAY!
The government is not an object that obtains protection from the First.
We've recognized that organizations receive protection form the first amendment from the time of writing the constitution. In fact, the constitution states nothing about protections for the speech of individuals, or citizens, or people, or humans. It provides exactly zero description of the required source of protected speech, only that speech itself is protected.
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Re: Re: YAY!
It does provide a source. In fact because of how this source is described is how people use the idea that businesses are not people to remove the rights of people in business.
"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
This makes all wording in the Constitution to imply that they only apply to Citizens. The Constitution does not apply to any non-citizens of any kind.
That said... Government is DIFFERENT! It is an entity that has NO RIGHTS, but instead... Powers. It is critical to understand what that means.
Our entire constitutional, and legal system is in shambles because people will not study and read about the founding fathers and what everything about the constitution meant.
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Re: Re: Re: YAY!
This makes all wording in the Constitution to imply that they only apply to Citizens. The Constitution does not apply to any non-citizens of any kind.
Why? All it says is that the citizens have created this document for the following reasons. It definitely implies that only citizens have the authority to change the document, but I don't see anything implying that the document only applies to citizens. In fact, it can't only apply to citizens, else not a single law in the country would apply to non-citizens. Taxes, for example, could not be levied against non-citizens as the wording allowing the government to levy taxes applies only to citizens.
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Having trouble reading that part? It does make it crystal clear. These blessing of liberty are secured to ourselves... NOT OTHERS!
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Re: Re: Re: Re: Re: YAY!
That we intend to secure liberty for ourselves does not require or imply that said liberty should be intentionally and specifically barred from others. I'm concerned that you can't see that.
Also consider that the first amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It specifically mentions "the people" in regards to only two of the rights outlined (assembly and petition). If this was already implied by the opening, why specifically mention them here, and only in two out of the five rights?
They could have easily said "...or of the right to peaceably assemble and petition the Government..."
or alternatively "...or abridging the people's freedom of speech..."
Instead, they specifically applied "the people" to only two specific rights, while not referencing them in the previous statements of rights.
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No, I am afraid you are the one with the limited picture. This is just a directive that states that the Government can never make these laws. So if a government lacks power to DO something then it of course means that by proxy everyone, including non-citizens will be able to enjoy that liberty. That said, it is still not "conferring" any rights to non-citizens, it is just a by-product of the Government being restrained from doing something.
Just because you are "unable" to physically lift your arm and punch someone after they punched you, does not "confer" that they have a "right" to not be punched.
"Instead, they specifically applied "the people" to only two specific rights, while not referencing them in the previous statements of rights."
Is that really the best you can come up with? They don't need to have "the people" anywhere else in the document because the *Preamble* makes a "Universal, Non-Revocable, Unmistakable (for smart people without corrupt agendas) declaration that the Constitution in whole and part, in it's entirety, applies only to "The People of the United States". It does not apply to anyone else and it does not apply based on geographic locations.
Your gross ignorance is the exact reason the government feels they are free to wipe their ass with this document. You are simply too uninformed and lacking of any significant insights or historical perspective about this document.
The worse part... is that you cannot even understand plain and simple English. This happens to be critical if you hope to understand what it means.
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That is, under your interpretation the Constitution grants the legislative branch the authority to create laws applying to "the people." The First Amendment prevents those laws from abridging "the people's" freedom of speech. The Preamble prevents those laws from applying to everything else, thus preventing the passage of laws which abridge everything else's freedom of speech.
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So says every racist and bigot in history.
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Good to know, no wonder people cannot take people like you seriously. You should consider some yoga or zen meditation of some kind, you are wound up so tight your little mind is snapping.
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That doesn't restrict the rules from applying to people other than "ourselves and our posterity"; it only states the purpose behind the rules.
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The Supreme Court stated in a 1905 ruling (JACOBSON v. COM. OF MASSACHUSETTS, 197 U.S. 11 (1905) 197 U.S. 11) that the preamble of the Constitution that you quoted there wasn't legally binding.
Here's the opinion of the court (written by Justice Harlan) in that ruling [emphasis mine]:
Seeing as this ruling is over a century old now, a future ruling (or Constitutional Amendment) could change things but, until then, the preamble isn't going to be considered binding by any lower court.
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"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 that we hate.”"
Beautiful.
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"I am not saying that you don't have a right to free speech, I am just saying you do not have a right to offend me."
The lines blur too easily and rarely do we see a defense like this. I too am actually grateful and impressed that SCOTUS mounted a comment like this.
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you have the right to NOT be assaulted;
you do NOT have the right to NOT be insulted...
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If you break into someones house... yea, you might face a lead assault.
Rights are better associated with things you CAN do. not really with things you cannot do for the obvious reasons. yes, I know it is tempting to create the bill of NO rights and its a funny joke but there is a reason people need to know why the Constitution was written the way it was. Far too many just allow the Government to tell them what it means, when it is obvious the Government is more than willing to lie.
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Well. With some Made in the USA exceptions.
Food libel laws for example. Elsewhere you might get sued for disparaging a specific brand, like McDonalds. In the USA you can be sued for disparaging beef. No brand, no corporation mentioned, just beef.
Or for disparaging meat by-products allowed in the USA but banned for human consumption in Canada and the European Union and elsewhere.
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For the record I'm a raging carnivore, but damn it I won't stand for attempts to shut those people up on the grounds that I might be the one wearing the gag one day for my own views.
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Yup. Even crazier, as the first link notes:
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