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SCOTUS Upholds First Amendment Right to Offend

 On June 26, 2017, the Supreme Court of the United States (opinion here) struck down a provision of the Lanham Act (the Federal Trademark statute) that bans registration of “disparaging” trademarks as an unconstitutional violation of freedom of speech protections under the First Amendment.  Simon Shiao Tam, member of Asian American rock group 'the Slants', appealed U.S. Patent and Trademark Office's denial of trademark registration for the bands name.  The USPTO had previously denied the mark as disparaging and offensive toward Asian-Americans.  Mr. Tam has espoused that the band was seeking to co-opt and redefine the derogatory connotation of the word by using it as a positive name for their band and sued for First Amendment violations.


The Tam opinion comes in a troubling time of declining public respect for the First Amendment.  A 2015 poll by Pew Research found that 40% of U.S. Millennials (aged 18-34) believed that the government should have the power to prevent offensive speech toward minorities, compared to 27% of Gen X’ers (aged 35-50) and 24% of Boomers (aged 51-69).    


The Bill of Rights was added to the Constitution at the request of representatives of several smaller states who (rightly) feared that centralizing too much power into the federal government would erode civil liberties.  It was drafted as check on majority dominance over individual liberties.  The First Amendment was a necessary check against prior abuses of government, which, under the English crown, had made any criticism or dissent toward government an act of criminal sedition (treasonous libel).  Through oppressive licensing and tax laws, the English Crown had restricted the rights of the press and the American colonies to dissent from the English government.  Today, outside a very narrow list of exceptions, the right to speak one’s opinion without interference in the Unites States is inviolable. 


This concept echoes in Justice Alito Jr.'s majority opinion in Tam.  Justice Altio wrote that the Lanham Act’s disparagement clause provision “[o]ffends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”  Matal v. Tam, 582 U.S. _____ 1,2 (2017). “The danger. . .” added Justice Kennedy in his concurrence, “is that the government is attempting to remove certain ideas or perspectives from a broader debate.  That 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.”  Id. at 4 (J. Kennedy, concurring).


In its opinion, the Court held that the constitutional right to make offensive or hateful speech applied to trademarks.  Trademarks exist to protect source identification in the marketplace by commercial actors.  Trademarks are inherently a form of communication in the nation’s marketplace of ideas. Companies via for the attention and support of consumers, who vote with their wallets.  “Trademarks often have an expressive content.  Companies spend huge amounts of create and publize trademarks that convey a message.  It is true that the necessary brevity of trademarks limits what they can say.  But powerful messages can sometimes be conveyed in just a few words.”  Id. at 18.


If we don't fight for the ideas we disagree with, then the right to free speech is no right at all, but a privilege that can be stripped from you by government decree.  In the words of legendary comic Don Rickles, “either everything is okay to joke about, or nothing is.”

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