Today Simon Tam of The Slants won a tremendous victory for free speech.
If you’re feeling despondent about the state of the world, if you’re in need of a booster shot for enlightenment thinking, if you long to have the government bitch-slapped for stepping on civil rights, if you want to laugh out loud, read on.
The U.S. Supreme Court vehemently rejected all of the government’s arguments for preserving the “disparagement clause” that allows the Trademark Office to refuse to register trademarks that may disparage or bring into contempt or disrepute any persons, living or dead.
Although the justices supported different reasons for their judgment, all of them agreed that the provision is total BS, constitutionality-wise.
Government Speech Schmovernment Speech
The court started by rejecting the government’s argument that trademark registration is “government speech,” a category of speech not subject to First Amendment protection. Here’s the court explaining why government speech is not protected:
“During the Second World War, the Federal Government produced and distributed millions of posters to promote the war effort. There were posters urging enlistment, the purchase of war bonds, and the conservation of scarce resources. These posters expressed a viewpoint, but the First Amendment did not demand that the Government balance the message of these posters by producing and distributing posters encouraging Americans to refrain from engaging in these activities.”
The Court then hits the government upside the head with a baseball bat for its attempt to expand what’s included in “government speech.”
“But while the government-speech doctrine is important—indeed, essential—it is a doctrine that is susceptible to dangerous misuse. 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. For this reason, we must exercise great caution before extending our government-speech precedents.”
Then, just in case the government didn’t feel the baseball-bat love tap, the Court took out the big ammo and blasted away.
“If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. 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.
“For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to ‘make.believe’ (Sony), ‘Think different’ (Apple), ‘Just do it’ (Nike), or ‘Have it your way’ (Burger King)? Was the Government warning about a coming disaster when it registered the mark ‘EndTime Ministries’?”
Not Even if It’s Commercial Speech
The Court next considered whether trademark registration is merely “commercial speech,” which is subject to a lesser level of First Amendment protection than non-commercial speech. The Court chose “not to resolve” the debate about whether or not it’s commercial speech “because the disparagement clause cannot withstand even the lower level of review for commercial speech.”
“A simple answer to this argument is that the disparagement clause is not ‘narrowly drawn’ to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. 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. In this way, it goes much further than is necessary to serve the interest asserted.”
In his opinion, Justice Kennedy sums it all up beautifully:
“A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society. ”
Rock on, SLANTS. Rock on SCOTUS. Rock on RIGHTS.
 15 U. S. C. §1052(a)
 C.J. Roberts, J. Alito, J. Thomas, J. Breyer, J. Kennedy, J Ginsburg, J. Sotomayor, and J. Kagan. J. Gorsuch took no part in the consideration or decision of the case.
 Slip Opinion at p 13.
 Slip Opinion at p 13-14. Emphasis added.
 Slip Opinion at pp 14-15. Emphasis added. Citations omitted.
 Slip Opinion at p 24.
 Slip Opinion at p. 25. Emphasis added.
 Opinion of J. Kennedy’s at p 8. Emphasis added.