The Supreme Court Offers a Warning on Free Speech

The U.S. Supreme Court handed down two notable victories for free-speech advocates on Monday as it nears the end of its current term. The two First Amendment cases came to the Court from starkly different circumstances, but the justices emphasized a similar theme in both rulings: Beware what the free-speech restrictions of today could be used to justify tomorrow.

In the first case, Matal v. Tam, the Court sided with an Asian-American rock band in Oregon named The Slants in a dispute with the U.S. Patent and Trademark Office. The PTO had denied band member Simon Tam’s application to register the group’s name as a trademark, citing a provision in federal law that prohibits the office from recognizing those that “disparage” or “bring … into contempt or disrepute” any “persons, living or dead.”

Tam said his band was trying to reclaim and subvert the term “slants,” a racist and denigrating slur for Asians, in a method similar to how the LGBT community re-appropriated “queer.” When the PTO said the disparagement clause barred it from approving Tam’s application, he filed a lawsuit in federal court and claimed its refusal violated his right to free speech and expression. The Federal Circuit Court of Appeals sided with him and struck down the clause as a violation of the First Amendment.

The office tried to defend the disparagement clause on multiple grounds, including the argument that registering trademarks amounted to government speech—a classification that isn’t regulated by the First Amendment. The Court narrowly reached a similar conclusion two years ago in Walker v. Texas Sons of Confederate Veterans when it sided with the state’s Department of Motor Vehicles against a neo-Confederate group that sought license plates bearing Confederate insignia. But the justices rejected that argument Monday as nonsensical on its face.


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