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From todays opinion by Justice Samuel Alito (for four justices) in Matal v. Tam, the Slants case:

[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.

Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

A law found to discriminate based on viewpoint is an egregious form of content discrimination, which is presumptively unconstitutional. 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 governments benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

And the justices made clear that speech that some view as racially offensive is protected not just against outright prohibition but also against lesser restrictions. In Matal, the government refused to register The Slants as a bands trademark, on the ground that the name might be seen as demeaning to Asian Americans. The government wasnt trying to forbid the band from using the mark; it was just denying it certain protections that trademarks get against unauthorized use by third parties. But even in this sort of program, the court held, viewpoint discrimination including against allegedly racially offensive viewpoints is unconstitutional. And this no-viewpoint-discrimination principle has long been seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more.

(Justice Neil Gorsuch wasnt on the court when the case was argued, so only eight justices participated.)

Asian-American dance rock band The Slants talk about their Supreme Court case, including a supporter they'd rather not have: Dan Snyder. (Gillian Brockell,Jesse Rosten/The Washington Post)

See the rest here:
Supreme Court unanimously reaffirms: There is no hate speech ...

An Asian-American rock group with an edgy name can now trademark that name thanks to the U.S. Supreme Court, which struck a blow for the First Amendment and against federal bureaucrats consumed by political correctness.

In an 8-0 ruling this week, the high court found that the disparagement clause used by the U.S. Patent and Trademark Office to deny trademark protection for the Oregon-based band The Slants is quite simply unconstitutional.

The band, of course, can call itself anything it wants, but without trademark protection couldnt safeguard its rights for, say, T-shirts or other items after the patent office found the name offensive. Theyve been fighting this lunatic ruling since 2011

Justice Samuel Alito, writing for the court, found, 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.

Dont you wonder if those ubiquitous Yankees Suck T-shirts were ever covered?

Alito also noted, It offends a bedrock First Amendment principle: Speech may not be banned on the grounds that it expresses ideas that offend.

Also cheering the ruling were the Washington Redskins, whose appeal of a similar 2014 ruling has been awaiting action on this case.

Redskins owner Dan Snyder has insisted the team name represents honor, respect and pride for Native Americans. Those who disagree are free to not buy tickets or T-shirts and to exercise their own First Amendment rights. They just cant have overreaching government bureaucrats fighting their battles for them.

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar grounds is hateful, Alito wrote, but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate.

And thank goodness for that!

Read more:
Editorial: Win for 1st Amendment | Boston Herald - Boston Herald

On May 30, Rep. Darrell Issas San Diego County constituents saw a different side of the nine-term member of Congress.

Angry at peaceful protesters outside his district office building in Vista, California, the congressman took to the roof to express his frustration. Looking down upon the protesters, he phoned a local newspaper reporter to explain he was on the roof because the protesters wouldnt speak to him and blamed the reporter for being in cahoots with the protesters. On Twitter, however, Issa said he spent his morning talking to constituents and then popped upstairs to photograph them from the roof.

While Issas behavior was erratic, it isnt the most concerning aspect to this story. No member of Congress likes to see protests outside his window, but he should vocally defend protesters First Amendment right to do so. But Issas silence has been deafening, even though the city of Vista is trying very hard to crack down on the protests.

For the past few months, Ellen Montanari has organized weekly protests outside Issas office to voice concerns over Issas public policies, including Issas vote to repeal Obamacare. These days, people are eager to express their dissatisfaction with Issas performance and Montanaris protests have given them a platform to do it. So every Tuesday, the protesters show up for an hour-long peaceful rally outside of Issas office, and the city of Vista has taken notice.

Until recently, the protesters gathered on the public sidewalk next to his office building to exercise their First Amendment rights. But under the terms of the citys most recent permit, which is issued in 30-day increments, they have been relegated to a dirt path on the opposite side of the road. Taking direct aim at Montanari, the permit also makes her financially responsible for the behavior of all the protesters who show up.

The actions taken by the city are unconstitutional. The Supreme Court has ruled repeatedly that public sidewalks are one of the places where our First Amendment rights are at their most robust. A government restriction on sidewalk protests can be justified only by the most compelling and fact-based need and that reason can never include the government's desire that a protest be less visible or less critical.

Our First Amendment freedoms ensure that anger and political disagreement dont fester into violence.

On June 1, the ACLU of San Diego and Imperial Counties issued a letter to the city of Vista seeking the removal of the unconstitutional restrictions in the permit granted to Ellen Montanari. In our letter, we made it clear that the city cannot ban protest from a public sidewalk or make Ms. Montanari responsible for the conduct of others. We also explained to the city that it cannot bill protesters for any law enforcement response and reminded it cannot ban the use of bullhorns or microphones by protesters. The ACLUs letter is now under review by the city attorney.

Contempt for the First Amendment, however, isnt confined to Vista. Since the election, 22 state legislatures have considered 31 anti-protest bills. Fourteen have been defeated, but 10 are pending and seven have passed including laws in South Dakota and Tennessee against blocking streets during demonstrations.

But the United States commitment to the First Amendment has been on the decline since before the election.

In July 2016, Maina Kiai, the United Nations special rapporteur on the rights to freedom of peaceful assembly and of association, undertook an official mission to the U.S. to assess our countrys commitment to freedom of assembly and protest. When he completed his trip, he observed that Americans have good reason to be angry and frustrated at the moment.

But he then went on to explain that its our First Amendment freedoms that ensure that anger and political disagreement dont fester into violence. And it is at times like these when robust promotion of assembly and association rights are needed most, he said. These rights give people a peaceful avenue to speak out, engage in dialogue with their fellow citizens and authorities, air their grievances and hopefully settle them.

The local officials of Vista, California, should heed Kiais words and stop trying to block Ms. Montanari and other peaceful protesters from exercising the very rights that have made America an example to the world for over two centuries. And we should all hope Darrell Issa can find his way down from the roof and assure his constituents that he believes they have a right to protest even when hes the target.

See the article here:
It's Time for Congressman Issa to Come Down From the Roof and ... - ACLU (blog)

Ned Snow is a professor of law at the University of South Carolina School of Law.

In Matal v. Tam (formerly called Lee v. Tam), the Supreme Court ruled unconstitutional the disparagement clause of the Lanham Act, which prevents registration of marks that employ disparaging names. The linchpin of its opinion is the conclusion that the disparagement clause constitutes viewpoint discrimination. Secondarily, the court relies on the argument that the disparagement clause does not support the governments interest in regulating speech. As I explain below, these arguments are unconvincing. Finally, the court articulates a broader policy concern of upholding restrictions that directly suppress speech in the commercial marketplace. That concern, I argue, is unfounded for the disparagement clause.

Viewpoint discrimination

Viewpoint discrimination is simple to understand (although sometimes difficult to apply): It occurs when the government prohibits a particular view or takes a position rather than prohibiting a general category or subject matter of speech. At first blush, the disparagement clause seems to prohibit only a general category of speech rather than a particular viewpoint: The clause does not adopt a position, indiscriminately applying to all hate speech, regardless of which person or institution a mark might disparage. Yet the court sees it differently. Justice Samuel Alito explains that a prohibition of all disparaging views is still a prohibition of viewpoints. In his words: Giving offense is a viewpoint. And Justice Anthony Kennedy further explains: To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so. Apparently, then, prohibiting all positions on a subject matter is just as viewpoint discriminatory as prohibiting only one. End of case, or so it would seem.

But this rationale is troubling. It calls into question other fundamental provisions of the Lanham Act. The Lanham Act prohibits registration of marks that both provide truthful information and make subjective assertions about their products. More specifically, the Lanham Act prohibits registration of marks that are generic descriptions of goods, that are specific descriptions of characteristics of goods, that are surnames (even of the source), and that indicate the geographic origin of a good. (Some of these types of marks may gain trademark protection over time and through an expensive showing of secondary meaning, but for purposes of viewpoint-discrimination analysis, the fact that they are denied in the absence of these circumstances is all that matters.) In short, the Lanham Act specifically prohibits applicants from telling truthful information and making claims about a good or its source. Are these provisions of the Lanham Act viewpoint discriminatory? According to Alitos reasoning, it would seem so: Telling the truth is a viewpoint a viewpoint, incidentally, that is much more central to the purpose of the First Amendment than is hate speech. And according to Kennedys reasoning: [t]o prohibit all sides from [making claims about their products] makes a law more viewpoint based, not less so, suggesting that a blanket prohibition of descriptive truths is viewpoint discriminatory. According to the reasoning of the Tam court, the Lanham Acts provisions that bar registration for truthful content would seem viewpoint discriminatory.

Consider also the Lanham Acts prohibition of government symbols. Section 2 of the Lanham Act bars trademark protection for any mark that [c]onsists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof. Last time I checked, preventing someone from expressing his patriotism by displaying the United States flag constituted an abridgement of free speech. Under the courts reasoning, the Lanham Acts prohibition of trademark registration for government symbols would be viewpoint discriminatory.

How, then, is a prohibition against disparaging speech any more viewpoint discriminatory than the other prohibitions in the Lanham Act? Stated differently, what principle dictates the viewpoint distinction between the disparagement clause and the other criteria for trademark eligibility? I dont see it. The disparagement clause cannot be viewpoint discriminatory for the simple reason that if it were, it would imply the viewpoint-discriminatory nature of other fundamental registration criteria.

Limited public forum

Why does it matter whether the discrimination is based on viewpoint or subject matter? Alito explains that if the discrimination were not viewpoint based, it might be justified under the limited-public-forum doctrine. Congress has created a public forum the trademark registration system to facilitate private speech, and as a result, the trademark system appears to constitute a limited public forum. In such a metaphysical forum, Congress may impose content-based restrictions that are viewpoint neutral, to the extent that the restrictions support the purpose of the forum. The disparagement clause, then, would be permissible to the extent that it supports the purpose of the trademark system, which I address below in discussing commercial-speech regulation.

Commercial speech regulation

Tellingly, Alito does not rely solely on viewpoint discrimination to condemn the disparagement clause. He analyzes the clause under the test for commercial-speech regulation. Key to this analysis is the government interest in regulating speech. Stated another way: What is it about the context of trademark law that would justify Congress in withholding registration from a disparaging mark? One interest is the orderly flow of commerce. That seems reasonable, given that hate speech does tend to interfere with people engaging in commercial transactions. Alito, however, argues that the statute is not narrowly tailored to this interest, so as to prevent only the sort of invidious discrimination that would disrupt commerce. That is debatable. Arguably, the court could interpret the disparagement clause narrowly, to avoid an unconstitutional interpretation.

Putting aside the orderly-flow-of-commerce interest, the court failed to recognize another important government interest underlying the disparagement clause: the interest in facilitating a peaceful society among citizens of disparate backgrounds and beliefs. A system of commerce that invites all to participate is integral to the fabric of a peaceful society. Religion, ideology and political party all yield to the commercial transaction of buyer and seller cooperating. Disparaging marks threaten this benefit of commerce. Disparaging marks work against universal cooperation in the marketplace. They facilitate an environment of exclusion. They promote disrespect rather than cooperation. Commercial offers for sale, which are supposed to facilitate universal cooperation, become a means to promote disrespect towards others. Simply put, disparaging marks contravene the critically important social benefit of a commercial system. Preventing those marks serves the underlying and broad purpose of commerce generally.

Thus, I am doubtful about the doctrinal underpinnings of the Tam decision. Its rationale for viewpoint discrimination appears weak when compared with the Lanham Acts other discriminatory criteria for trademark registration. Similarly, the disparagement clause appears justifiable as a commercial-speech regulation because it supports the governments interest in facilitating universal participation in the commercial marketplace.

Speech suppression in the commercial marketplace

All this being said, the court does raise an understandable concern. Alito frankly voices that concern:

The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social volatility, free speech would be endangered.

It would seem, then, that the court is fearful that protected and valuable speech could be suppressed merely by labeling it as commercial. What if Congress passed a law that prohibited any critical speech in commercial print? Would the commercial nature of the speech justify such broad content-based regulation? First is a ban on disparaging trademarks, and next is a ban on The New York Times. Loudly the court opines that commerciality does not justify prohibitions on speech that permeates public life in this particular instance, trademarks.

This concern makes sense to a point. Certainly we must avoid suppressing ideas in the name of facilitating commerciality. Unconstitutional speech suppression might arise were Congress to withhold money, impose a fine or affix criminal penalties in response to speech content. But none of these acts of speech suppression is present here. Indeed, according to the court, the benefit of trademark registration is not the same as a cash subsidy or its equivalent. The benefit of registration lies entirely in the commercial realm, thereby limiting the influence of the disparagement clause to that commercial realm. For that matter, withholding registration does not prevent financial success in the commercial marketplace. Even without registration, a disparaging mark can still serve as a trademark. It can still identify source. And owners of disparaging marks can still fully participate in the commercial marketplace. So although a disparaging mark would lack the commercial benefit of registration, that mark could still succeed both financially and philosophically in the marketplace of ideas. Speech suppression is not occurring here.

In sum, Congress should be able to reward civility in commercial discourse. A society can both appreciate the value of contrary and even hateful ideas and at the same time reward commercial speakers who choose to engage civilly. There is neither suppression nor viewpoint discrimination when the people choose to reward civil discourse in commercial transactions.

Posted in Matal v. Tam, Symposium on the court's ruling in Matal v. Tam, Featured

Recommended Citation: Ned Snow, Symposium: The First Amendment silences trademark, SCOTUSblog (Jun. 20, 2017, 12:43 PM), http://www.scotusblog.com/2017/06/symposium-first-amendment-silences-trademark/

Read more from the original source:
Symposium: The First Amendment silences trademark - SCOTUSblog (blog)

Documentarian Brian Knappenberger took a keen interest in the lawsuit Hulk Hogan brought against Gawker. Not because of the tawdry details, though there were plenty of those: The wrestler sued the media company for invasion of privacy over a sex tape it published in 2012 featuring him and the wife of his friend Bubba the Love Sponge Clem.

Knappenberger was more interested in what the trial meant for the First Amendment. As soon as the jury sided with Hogan and put Gawker on the hook for an astounding $140million the filmmaker knew he had to get to work on his next movie.

Of course, that was long before he realized how much deeper the story went. It was before the revelation that Peter Thiel, a wealthy entrepreneur with a grudge, bankrolled the lawsuit that put Gawker out of business; before Thiel supported Donald Trump for president; and before Trump, who promised during his campaign to open up our libel laws, became leader of the free world.

Sometimes documentaries come along at the ideal moment. Chalk it up to luck or a futurists understanding of the zeitgeist, but Knappenbergers Nobody Speak: Trials of the Free Press is right on time as it begins streaming on Netflix on Friday. Its a crucial moment to consider what it means for the First Amendment, not to mention society, that a billionaire with a bone to pick could use his money to get the legal system to do his bidding.

Thiel had despised Gawker ever since it published a story about him in 2007 with the title Peter Thiel is totally gay, people. And he wasnt alone. Gawker had a well-earned bad reputation. A pioneer of online journalism, the company prized speed over fact-checking and became infamous for its questionable news judgment and snarky, cavalier attitude. Its Gawker Stalker feature was the tip of the iceberg, raising privacy concerns with its crowdsourced map that tracked the movements of celebrities.

But Gawker also broke legitimate stories, including one about the many women who had accused Bill Cosby of sexual assault.

As legendary lawyer and First Amendment advocate Floyd Abrams puts it in the movie: We dont get to pick and choose what sorts of publications are permissible.

And yet, Thiel did. He didnt see his court case as a threat to the First Amendment, he explained, because he didnt view Gawker as a journalistic enterprise. The co-founder of PayPal (and an early Facebook investor) declared putting Gawker out of business his most philanthropic deed. He maintained that the company was a singularly sociopathic bully.

But thats an absurd thing to say in a media environment in which Alex Jones basically says Sandy Hook didnt happen, Knappenberger said in a recent interview, referring to the conspiracy-theory-spewing Infowars radio host, who also spread lies about Pizzagate. Gawker is singularly sociopathic for posting this tape of a public person who had bragged about his sex life? Its not necessarily tasteful, but its certainly not sociopathic.

Nobody Speak shows that the Hogan-Gawker case is only one piece of a worrisome trend. In Nevada, for example, another moneyed magnate and Republican donor, Sheldon Adelson, secretly paid $140million to buy the Las Vegas Review-Journal a newspaper that had been critical of him in the past. Adelson, like the man he supported for president, has a history of suing journalists who write unflattering stories about him.

The wealthiest citizens clearly exert outsize power in our society, which becomes more problematic as the gap between the haves and have-nots continues to widen. The Fourth Estates job is to hold the powerful accountable, and yet the distrust of institutions especially the news media puts free speech in a precarious spot.

Technology and other factors like inequality are shifting and changing the ground we walk on, said Knappenberger, whose films The Internets Own Boy and We Are Legion: The Story of the Hacktivists also deal with technology and society. The way those forces are rubbing up against what you might think of as traditional values freedom of speech and democracy and acquisition of power and money that stuff is really shifting, and I dont think we quite know where its going.

Knappenberger said he could tell at the time that what was happening with Hogan and Gawker was connected to what was happening on the campaign trail.

Trump was always in this film from the beginning, he said. There was a palpable hatred of the media in the courtroom. The judge on the case, Jeb Bush appointee Pamela Campbell, had no sympathy for Gawker. Nor, apparently, did the jury.

Theres legitimate criticism, Knappenberger said of journalism. That its too corporatized or too cozy with power. For too long, [journalists] traded softball stories for access, and people are starting to call bulls---.

But the director is heartened by the response to the new presidency as reporters have been energized by a hunt for scoops that has led to seemingly nonstop breaking-news bombshells.

Meanwhile, Trumps ability to change libel laws appears to be limited, despite a menacing tweet after a New York Times story he didnt like.

That doesnt make the threat against free speech and real facts any less real. Lets not forget what happened in that Florida courtroom.

This became something much, much bigger, and it does point to something critical at the heart of whats going on right now, Knappenberger said. If money is leveraged against civil liberties and speech, what else is important? Its not that thats the only important thing. Its that how do you care about anything else? How do you tackle anything else without speech?

Go here to see the original:
A movie about Hulk Hogan's court case shows how the First Amendment is under attack - Washington Post