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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/

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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?

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A movie about Hulk Hogan's court case shows how the First Amendment is under attack - Washington Post

A Northwestern University professors op-ed in the Los Angeles Times is disturbing - not only in its conclusions, but also its assumptions. Sociologist Laura Beth Nielsen calls for restrictions on hate speech, because she contends that speech is violence.

We are currently seeing the results of confusing speech and political violence. Its not pretty.

As a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates. Despite the 1st Amendment - I tell my students - local, state, and federal laws limit all kinds of speech, Nielsen writes. We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few. My students nod along until we get to racist and sexist speech. Some cant grasp why, if we restrict so many forms of speech, we dont also restrict hate speech.

Shes only partially right there; government doesnt regulate libel, for example, but victims can win compensation from perpetrators in a civil action. Incitement to violence is certainly restricted, but advertisings relationship with the First Amendment is more complicated.

But the real problem with Nielsens piece is her assumptions.

In fact, empirical data suggest that frequent verbal harassment can lead to various negative consequences, she writes. Racist hate speech has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder, and requires complex coping strategies These negative physical and mental health outcomes - which embody the historical roots of race and gender oppression - mean that hate speech is not just speech. Hate speech is doing something.

Certainly, harassment is bad. And in many cases, its already illegal. There are remedies in place. But the fundamental truth here is that words are not actions.

The U.S. Supreme Court has time and again reaffirmed the freedom of speech - and ruled that hate speech is covered.

For the purposes of the First Amendment, there is no difference between free speech and hate speech. Ideas and opinions that progressive students and professors find offensive or hateful are just as protected by the Bill of Rights as anti-Trump slogans chanted at a campus protest, writes John Daniel Danielson for The Federalist.

The reason is simple. Once Congress can start banning hate speech, then unpopular political opinions will become illegal.

As Danielson points out, By hate speech, they mean ideas and opinions that run afoul of progressive pieties. Do you believe abortion is the taking of human life? Thats hate speech Concerned about illegal immigration? Believe in the right to bear arms? Support President Donald Trump? All hate speech.

And of course that could be turned against the left. Their ideas and values easily could be labeled hate speech. Think of black lives matter.

Were in the midst of a great confusion in our society. Political violence - from punching Nazis to attacking protestors to shooting conservative members of Congress - seems to be on the rise.

We must get back to the belief that ideas are to be countered with better ideas, not with violence. Words have consequences, but we cant ban them just because we dont like them.

More:
Editorial: First Amendment affirms that words aren't violence - Tyler Morning Telegraph

The North Carolina legislature is the counter-argument against the story of the mule and the two-by-four. No matter how often you hit them over the head, and various courts have done it 12 times in the past year, you still don't get their attention. Sometimes, the mule is just dumb.

Getty

From there, we skip up to Wisconsin, where the state's university system remains stubbornly unimpressed with the Republican legislature and with the leadership of Scott Walker, the goggle-eyed homunculus hired by Koch Industries to manage this particular Midwest subsidiary. You may have been following the various fights on college campuses regarding "controversial" speakers and the reaction against them. (If you're a regular reader of right-wing media, you believe that mere anarchy has been loosed upon the world. Just lie down with a cold compress for a while.) There are "free speech" advocates on both sides of the big ditch here, exercising their First Amendment rights at the top of their lungs and, occasionally, exercising their First Amendment right of assembly in a fashion thought to be too vigorous.

Luckily, the Wisconsin Republicans have a solution: Throw out the latter group. From The Capital Times:

The controversial legislation has drawn criticism from those who say it would curb free speech rather than expand it and that it would stand in the way of the UW System's authority to manage its own campuses. Its supporters say its goal is to encourage free expression and to ensure all viewpoints can be heard at public universities. "Today we are ensuring that simply because you are a young adult on a college campus, your constitutional rights do not go away," said bill author Rep. Jesse Kremer, R-Kewaskum.

Watch now as Kremer deftly ties his own shoes together.

Under the measure, students who repeatedly engage in "violent or other disorderly conduct that materially and substantially disrupts the free expression of others" would be subjected to discipline that, on a third incident, would result in expulsion. The bill requires UW System campuses to launch investigations and hold hearings the second time a student is alleged to have interfered with the expressive rights of others. The hearings and their outcomes would be reported annually to a newly formed Council on Free Expression.

You see the joker in the deck there, right? "Other disorderly conduct." As defined by what"a Council On Free Expression."

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A what? Thought police! Somebody wake up Ben Shapiro. There's work to be done in Madison! Of course, Wisconsin is not the only test case.

Rep. Terese Berceau, D-Madison, said the country has faced free speech struggles throughout its history, but they have been resolved without legislative intervention. "This is really part of a political program," Berceau said. "It's part of the continuing effort to really establish a conservative stronghold in our country on every institution, and now they're going after or universities." The bill is similar to others being considered throughout the country, modeled after sample legislation prepared by the conservative Goldwater Institute, and takes some pieces from a provision members of the Legislature's Joint Finance Committee removed from Gov. Scott Walker's budget proposal.

Of all the techniques of artificial victimization common to modern conservatism, the whole "political correctness" thing is one of the most threadbare, and this attempt at legislating away the parts of the First Amendment you don't like is the best evidence of that we've seen in a while.

And we conclude, as is our custom, in the great state of Oklahoma, where Blog Official Derelict Oil Well Artist Friedman of the Plains brings us the tale of Rogers County Sheriff Scott Walton, who is not working and playing well with others, as the Tulsa World explains.

The telephone exchange stemmed from a May 25 incident in which a deputy with the Rogers County Sheriff's Office drove past Officer Craig Heatherly, who attempted to flag down the deputy for backup in a gun-related traffic stop, according to an internal police email. However, dash cam video allegedly shows the deputy driving past without stopping to help In the cellphone audio, Walton can be heard telling Heatherly that he "handled it wrong" and he "owe(d) the man an apology" in reference to the deputy. Heatherly responded that he and Walton would have to "agree to disagree on that one." "We'll agree to disagree," Walton said, "but I do agree that you're a f---- coward. OK."

I have to agree with FOTP here. What makes it art is "We'll have to agree to disagreeyou fcking coward!" From NPR to Deadwood in one complex sentence. Awesome.

This is your democracy, America. Cherish it.

The Constitution Simply Was Not Built for This

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In Scott Walker's Wisconsin, the First Amendment Only Applies to Certain People - Esquire.com

The Detroit News 11:04 p.m. ET June 22, 2017

The court ruling upholds the principle that the First Amendment protects even hateful speech.(Photo: J. Scott Applewhite / AP)

Americans shouldnt need constant reminding that under the First Amendment, they can say what they want, when they want and to whom they want, no matter how hateful or offensive.

And yet as longstanding as is that principle, the U.S. Supreme Court had to affirm it again this week when it ruled unanimously that an Asian rock band could trademark its name the Slants even though it is a derogatory term sometimes used to demean Asians.

The U.S. Patent and Trademark Office had denied the bands request to register and protect its name, deeming it amounted to hate speech. The office similarly stripped the Washington Redskins football team of its trademark because it is offensive to Native Americans.

The courts ruling basically upheld the principle that all speech, including hateful speech, is protected by the First Amendment and should not be restricted.

Thats the right call. The obvious danger of allowing the federal government to be the arbiter of free speech is that restrictions are easily manipulated to suit political agendas.

And offensiveness is very much in the ear they beholder. What shocks one person may not faze another.

The idea that the government may restrict speech expressing ideas that offend strikes at the heart of the First Amendment, Justice Samuel Alito wrote. 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.

Alitos opinion provides important clarification for the so-called disparagement clause of federal law, which forbids registration of a trademark that may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.

Thats an overly broad carve-out that, again, relies on subjective interpretations influenceable by the regulators own experiences and biases.

Its not the appropriate role of the government, according to Justice Anthony Kennedy.

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, Kennedy wrote in concurrence. 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.

There are, of course, marketplace consequences when speech oversteps societal norms and broadly offends. Products can be boycotted and individuals shunned. Thats the appropriate regulator.

This court has been a good friend to the First Amendment at a time when there are many who would shred it to stifle dissent and control the national political debate.

That the Slants opinion came on an 8-0 vote is a powerful affirmation of the foundational right of free speech and its sacred role in a democratic society.

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Editorial: Court shores up First Amendment - The Detroit News