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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

What can powerless, concerned citizens do in response to President Trump's move to withdraw the United States from the Paris Climate Agreement?

Here's a pretty good answer from Sen. Sheldon Whitehouse, D-R.I.:

If you haven't joined an environmental group, join one. If your voice needs to be heard, get active. If you are a big corporation with good climate policies that has shied away from engaging politically, it's time to engage.

Taken from his official statement on the withdrawal, Whitehouse describes exactly the type of activity the First Amendment was written to protect. When government takes action that citizens find objectionable, the First Amendment protects their right to organize, petition, and speak out. In other words, it protects the right to "get active."

Unfortunately, Whitehouse has spent his political career promoting efforts to hamper just this sort of civic engagement.

He uses the megaphone that comes with his position of power to rail against the rights of advocacy groups that choose to respect the privacy of their donors. And he supports bills that would cripple all but the most well-funded groups.

Whitehouse has introduced the so-called "DISCLOSE Act" multiple times now. DISCLOSE is a contrived acronym for "Democracy Is Strengthened by Casting Light on Spending in Elections."

Whitehouse and his allies say this bill would increase transparency. But the "light" that would be cast would not shine on those in power, such as senators. We wouldn't know anything about what groups or persons he meets with behind closed doors.

Rather, the bill targets citizen groups that seek to hold those in power accountable. Whitehouse would like us to believe that the legitimate interest in government transparency necessitates exposing the personal information of private citizens who choose to join groups and advocate for social change.

Disclosing the names, addresses, occupations, and employers of citizens who give to advocacy groups exposes people to potential intimidation and harassment. So if his bill became law, fewer are likely to want to join an environmental group. The loss of privacy increases the costs of civic engagement.

The laws drive up compliance costs for groups too. Disclosure laws are very complex. They require groups to file frequent, detailed reports to government agencies. To stay in compliance, groups must hire expensive lawyers and spend resources on exhaustive record-keeping. As a result, Whitehouse is promoting laws that would directly hinder citizens' willingness and ability to "get active."

The DISCLOSE Act is just one part of Whitehouse's endless crusade against the free speech rights of groups he likes to call "dark money" organizations. The pejorative term "dark money" refers to money spent on speech by groups that do not have to publicly report the private information of their donors to the government.

One such "dark money" group is the Sierra Club. Among the most well-known environmental advocacy groups in the nation, it is presumably one of the groups Whitehouse would encourage concerned citizens to join.

The Sierra Club explicitly offers to protect the privacy of its donors, including corporate donors. So, it clearly has supporters who desire anonymity and with good reason. Surely, some of those supporters would choose not to donate if they no longer had this option.

Whitehouse's call for increased political engagement from corporations highlights his apparent myopic view that the First Amendment only applies to advocacy he agrees with as well.

Whitehouse makes no attempt to hide his animus toward corporate political speech. He has repeatedly co-sponsored a constitutional amendment that, among other abominations it would do to the First Amendment, seeks to grant Congress unlimited power to prohibit any corporate entity from spending money on political speech.

No word on whether he favors an exception for corporations with "good" policies on climate change.

It is heartening to see that Whitehouse is now encouraging citizens (and corporations) to engage in political speech instead of yet again attempting to silence opposing viewpoints.

His statement demonstrates that he does indeed understand the value of First Amendment-protected advocacy. However, the statement is also an example of the far too common tendency among many politicians to view only friendly advocacy as legitimate.

The First Amendment protects the right of every American to privately support an environmental group. It also supports the right of every corporation to speak in opposition to the president's actions regarding climate policy.

But Whitehouse must realize that the First Amendment also protects the right of citizens, nonprofit groups, and corporations to engage in political speech he opposes. In the end, his anti-speech objectives will harm the First Amendment rights of his allies as much as his opponents.

Alex Baiocco is a Communications Fellow at the Center for Competitive Politics in Alexandria, Virginia.

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Sen. Sheldon Whitehouse is a hypocrite on the First Amendment - Washington Examiner

When Zachary Wood arrived at Williams College his freshman year, he had high hopes for an academic environment that challenged his views. Now going into his senior year, Wood says he has faced backlash from students and administrators for inviting controversial speakers to campus.

Wood appeared before the Senate Judiciary Committee on Tuesday, part of a panel discussing free speech on college campuses.

Wood describes himself as a liberal Democrat, but he brought provocative speakers representing diversepolitical ideologies to campus. He wanted to expose students to ideas they disagree with.

One such speaker invitation prompted the Williams College administration to cancel the event and revise the campus speaker policies.

Wood said this was impermissible, undemocratic, and antithetical to the intellectual character of the college

Williams College is not alone in disinviting speakers. The Foundation for Individual Rights in Education (FIRE) has tracked attempts to disinvite college speakers since 2000. It documented an upward trend. In 2016, FIRE recorded 43 incidents in which students or administrators attempted to cancel a planned speech.

Senator Ted Cruz lambasted college administrators for acting as speech police.

If universities become homogenizing institutions that are focused on inculcating and indoctrinating rather than challenging, we will lose what makes universities great, Cruz said.

The issue of disinviting speakers gained national attention in February when violent protests broke out at the University of California, Berkeley in response to a scheduled talk by alt-right provocateur Milo Yiannopoulos.

More recently, Berkeley cancelled a talk by commentator Ann Coulter amid more threats of protest.

Ranking Democrat Sen. Dianne Feinstein pointed to these violent demonstrations as justification for college administrators cancelling speeches. The senator from California said university police forces often do not have the training and resources needed to handle these situations.

Feinstein argued that Berkeley has a right to protect its students from demonstrations once they become acts of violence.

While there was consensus among panel members on the importance of free speech on campus, the issue came to the application of that right in practice.

UCLA Law professor Eugene Volokh said it was important to punish violent protesters to ensure that they dont continue to disrupt speeches. He said this will sometimes require bringing in more law enforcement.

If you violate the law and by this I mean laws against vandalism, laws against violence, laws against physically shouting people down, then in that case you will be punished rather than having your goals be achieved, Volokh said.

Feinstein pushed back on the suggestion of more law enforcement to control college protests. She asked whether any lessons were learned fromthe 1970 Kent State shooting, in which Ohio National Guardsmen shotand killed four students and injured nine others.

Frederick Lawrence, secretary and CEO of the Phi Beta Kappa Society, said colleges must start with a strong presumption in favor of the speech but make judgements based on the circumstances. As a former president of Brandeis University, Lawrence said it is greatly exaggerated to expect colleges to have the resources to deal with all types of violent protests.

Lawrence said that no matter the speakers beliefs, colleges should find ways to host the event. He suggested making speeches private events if needed, closed to people outside the university community.

Over the past few months, several states have taken up the issue of free speech on campus. A bill passed the North Carolina House in April that would ensure public universities be open to all speakers. It also would require sanctions on protesters who disrupt events.

Panelist Floyd Abrams, a prominent First Amendment lawyer, said he was apprehensive about state legislatures getting too close to the university campuses. Abrams said state legislatures should not dictate what colleges can teach or cannot teach.

On the federal level, a bipartisan resolution calling for the protection of free speech was introduced in the U.S. House of Representatives in May. If passed, the resolution would condemn university free speech zones and restrictive speech codes. The Senate does not have any similar legislation.

Calling himself a small government guy, Sen. Ben Sasse said he wants to see as little of this adjudicated by coercion and power and possible. The Nebraska senator and former college president called on college administrators to defend free speech on their campuses.

Following the hearing Sen. John Kennedy agreed with Sasse, making clear to reporters that federal intervention was not needed to solve the problem.

I dont want the government to have to come in and say this is acceptable and this isnt, Kennedy said. I want a university president to do his job and to have the guts to do it. And if he cant do it he ought to quit.

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Balancing the First Amendment and Students' Safety - Roll Call

On Monday in Packingham v. North Carolina,the justices unanimously (minus Gorsuch) voted to invalidate a North Carolina statute making it a felony for a registered sex offender to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages. But Justice Alito, joined by Roberts and Thomas, concurred only in the judgment. All eight Justices agreed that the statute wasnt sufficiently tailored. Both opinions emphasized the possible application of the statute to Amazon.com, washingtonpost.com, and webmd.com.

So where did the opinions differ? The central disagreement between the two opinions is how judges applying the First Amendment should respond to the changing nature of cyberspace. From the majority:

While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

And from the concurrence:

The Court is correct that we should be cautious in applying our free speech precedents to the internet. Ante, at 6. Cyberspace is different from the physical world, and if it is true, as the Court believes, that we cannot appreciate yet the full dimensions and vast potential of the Cyber Age, ibid., we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.

The majoritys point that that what [courts] say today might be obsolete tomorrow is an important one that I discussed in the Internet context almost 20(!) years ago in Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process.

But I want here to highlight a slightly different point. When it comes to changing phenomena (like cyberspace), what is the best default position with respect to the First Amendment? Should judges err on the side of starchy application of free speech tests, or a more flexible approach? This are not new questions. For instance, back in 1996, in Denver Area Education Telecommunications Consortium, Inc. v. FCC, the Supreme Court considered regulation of indecency on public access and leased access channels. Justice Souter wrote a concurrence suggesting that, in the fast-changing world of telecommunications, judges should heed the admonition First, do no harm. Justice Kennedy responded: Justice Souter recommends to the Court the precept, First, do no harm. The question, though, is whether the harm is in sustaining the law or striking it down. As I noted in a different article, the injunction [f]irst, do no harm provides little guidance unless we can identify what the do no harm position is.

In Mondays case, Justice Kennedys majority opinion, consistent with his concurrence in Denver Area and his First Amendment jurisprudence more generally, treats broad and rigorous application of First Amendment tests as the do no harm position in the ever-changing world of cyberspace. Justice Alitos concurrence wants a default that takes smaller steps and gives judges (and thus legislatures) more flexibility. Obviously there is no ineluctable answer here. But, once again, baselines are doing a lot of work.

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What is the 'do no harm' position on the First Amendment in cyberspace? - Washington Post

Progressive hysterics highlight the beauty of the First Amendment

American free speech is a wonderful thing, even when the speech is stupid

Free speech is indeed the great American right; our freedom of speech regime is perhaps the most liberated in the world. It is exceedingly difficult to get in trouble for saying something in America. This is a good thing.

Its a good thing even when the speech in question is irritating, hateful or profoundly stupid. Such was the case recently at the University of Georgia, where the colleges Young Democrats called for the beheading of congressional Republicans. The group of students was actually playing off of a professors earlier call for the firing-squad execution of Republicans. Both the professor and the students were demanding that Republicans be killed due to their efforts to repeal Obamacare and replace it with Trumpcare. (It seems to be an accepted part of the American political order that the Left, when confronted with politics they dont like, will often quickly and happily resort to violence or the threat of violence.)

There are several ways to look at this incident. On the one hand, this is simply an instance of childish political hysterics, something the American body politic must deal with every time theres a Republican in the White House. On the other hand this kind of thing could be an indication of a much more deep-seated political dysfunction, a sign that liberals are increasingly incapable of operating within the bounds of normal, healthy, rational political discourse.

But more broadlyand more importantlywe might look at this stupid dust-up as a key indicator of the free state of American speech and expression. The level of protection that speech is afforded in this country is frankly astonishing, not just compared to the tyrannies and tinpot dictator republics across the globe but even when stacked up against the relatively enlightened countries of Western Europe and the member states of the British Commonwealth. When a university professor and a group of college students can espouse this kind of reprehensible rhetoric free from the fear of prosecution, it says something special about our country (even as it says something rather dismal about the state of progressive politics).

Our college campuses, of course, have in recent years become hotbeds of censorship and anti-free-speech agitation, though such efforts have primarily been directed atconservativespeech: if a right-wing professor or a group of College Republicans had made these comments, you can be assured that the Office of Civil Rights would be mounting several investigations into the matter, and the campus mobs would have instituted a 24-hour vigil against the offenders. Culturally and sometimes legally, free speech is often a one-way street at American universities, and that is a disgrace. But in the country at large, we are more or less entirely free to speak our minds. And that is a blessing.

MORE: Berkeley op-ed: safety of marginalized more important than free speech

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Progressive hysterics highlight the beauty of the First Amendment - The College Fix