Tuesday, 20 June 2017

There Is No 'Hate Speech' Exemption to First Amendment, Supreme Court Rules

"[The idea that the government may restrict] speech expressing ideas that offend … 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.'"

That was the writing of one of the 8 justices that unanimously found "hate speech" laws illegal this week.

The case where this happened had to do with whether a band called "The Slants" could get a patent for the name. It was denied by the Patent Office because they thought it was probably racially disparaging, and they have a disparagement clause where they don't patent that type of thing.

The story of the case, from the syllabus:

"Simon Tam, lead singer of the rock group 'The Slants,' chose this moniker in order to 'reclaim' the term and drain its denigrating force as a derogatory term for Asian persons. Tam sought federal registration of the mark 'THE SLANTS.' The Patent and Trademark Office (PTO) denied the application under a Lanham Act provision prohibiting the registration of trademarks that may 'disparage . . . or bring . . . into contemp[t] or disrepute' any 'persons, living or dead.' Tam contested the denial of registration through the administrative appeals process, to no avail. He then took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause. "

Tam wanted the Patent Office to accept the band name, and even to change the wording of their clause.

But the Supreme Court (and the circuit court before) found that the clause itself was unconstitutional.

"The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’s contention, trademarks are private, not government speech. Because the “Free Speech
Clause . . . does not regulate government speech,” Pleasant Grove City v. Summum, the government is not required to maintain viewpoint neutrality on its own speech. This Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints."

Syllabus

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