Free Speech Wins (Again) at the Supreme Court

by David French

If you’re a lawyer arguing against free speech at the Supreme Court, be prepared to lose. Today the Court affirmed once again the Constitution’s strong protections against governmental viewpoint discrimination, even when the viewpoint discrimination is directed against “offensive” speech. In Matal v. Tam, the Court considered the U.S. Patent and Trademark Office’s refusal to register a trademark for a band called “The Slants” on the grounds that the name violated provisions of the Lanham Act that prohibited registering trademarks that “disparage . . . or bring into contemp[t] or disrepute” any “persons, living or dead.” 

Given existing First Amendment jurisprudence, there would have been a constitutional earthquake if SCOTUS hadn’t ruled for Tam. The Court has long held that the Constitution protects all but the narrowest categories of speech. Yet time and again, governments (including colleges) have tried to regulate “offensive” speech. Time and again, SCOTUS has defended free expression. Today was no exception. Writing for a unanimous Court, Justice Alito noted that the Patent and Trademark Office was essentially arguing that “the Government has an interest in preventing speech expressing ideas that offend.” His response was decisive:

[A]s we have explained, that idea 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.”

Quick, someone alert the snowflakes shouting down speeches on campus or rushing stages in New York. There is no constitutional exception for so-called “hate speech.” Indeed, governments are under an obligation to protect controversial expression. Every justice agrees. 

The ruling is worth celebrating, but when law and culture diverge, culture tends to win. The law protects free speech as strongly as it ever has. The culture, however, is growing increasingly intolerant — subjecting dissenters to shout-downs, reprisals, boycotts, shame campaigns, and disruptions. Some of this conduct is legal (boycotts and public shaming), some isn’t (shout-downs, riots, and disruptions), but all of it adds up to a society that increasingly views free speech as a dangerous threat, and not as one of our constitutional republic’s most vital assets. Liberty is winning the important judicial battles, but it may well lose the all-important cultural war. 

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