Free Speech Rulings from the Supreme Court

Even as we wait until next week for the U.S. Supreme Court to rule in the religious freedom case of Trinity Lutheran Church of Columbia v. Comer, the justices issued two unanimous decisions this week on cases related to free speech in trademarks and on the internet.

The case of Matal v. Tam attracted press attention in part because of its probable implications for the battle between the U.S. Patent & Trademark Office (USPTO) and the Washington Redskins. Simon Tam had challenged a USPTO ruling that he could not trademark his band’s name, “The Slants,” because of the term’s derogatory nature. The agency cited a “disparagement clause” in federal statute preventing such designations. Tam won his challenge at the circuit court level, and a united Supreme Court solidified that victory. Writing for the court, Justice Samuel Alito said, “We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Also of significance was a case challenging a North Carolina law that prohibited convicted sex offenders from using social media platforms that allow minors to create accounts. In Packingham v. North Carolina, the justices unanimously held that the state law was an impermissible restriction on First Amendment guarantee to free speech. However, while united in the end decision, the justices did have different thoughts on how broadly they wished to apply this ruling in regard to the internet. Justice Anthony Kennedy wrote the majority opinion joined in by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Kennedy said, “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” Noting this case as among the first exploring the internet’s relationship to the First Amendment, Kennedy added, “The Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.” In a concurrence, however, Justice Alito, joined by Chief Justice John Roberts and Justice Clarence Thomas, called the majority’s opinion “undisciplined” and was wary of his colleagues being “unable to resist musings that seem to equate the entirety of the internet with public streets and parks.”

Opinions for both cases are available here.

By Aaron Mercer, Vice President of Government Relations

Published: June 23, 2017

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