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All you have to do is read this blog to know that under the First Amendment, the government cannot prohibit the exhibition of Nazi symbols. It’s really pretty simple, and well settled law. So it’s inexplicable to me why a New York TV station would think that they have to go to “experts” to say that someone flying a Nazi flag “is protected because the flag is on private property.” Maybe it’s not that inexplicable, however, in light of the fact that, according to the same item, “More than 400 people have signed a petition asking town officials to do something about the Nazi flag.” What do they think the town officials can do about it? Order the person displaying it to take it down because it’s offensive? Tell that to Supreme Court, who just last year said that the government couldn’t prevent The Slants from trademarking their name, even though many people find the name offensive.
I will say it again: you can’t prohibit speech just because someone finds it offensive. Even if (maybe especially if) that someone is a police officer.
Remember that town in Iowa whose attorney threatened a citizen with a slander of title claim for making disparaging comments about the town? The town got smacked down by a federal judge and agreed to apologize, pay damages to the citizen, and pay the citizen’s legal fees.
A welcome, but not too surprising, outcome. Via Overlawyered. Nice try, attorney representing a town that tried to silence a critic. Unless the law in your state is vastly different from the law everywhere else that I have ever heard of on this topic, slander of title has a specific meaning: doing something that affects title to or an interest in a specific parcel. Negative comments that allegedly diminish the value of all property in a municipality do not constitute slander of title, unless the municipality owns or has a mortgage on all the property within its boundaries. The fact that the municipality taxes all property within its boundaries based on the value of each parcel doesn’t give the municipality an interest in the property.
That’s without even mentioning the obvious violation of the critic’s First Amendment rights. If you are a public official, it’s usually not a good idea to send to your constituents a letter threatening them with sign code enforcement because they put up signs criticizing your official actions. And don’t have another public official do it for you, either, such as a selectman having the building code inspector do it.
If you’re thinking about trying to regulate a sign because of what it says, you may want to think twice. I don’t remember who it was, but a commentator who writes about First Amendment cases, noting the frequency with which government agencies (whether well-intentioned or not) attempt to restrict free speech, said something like: what part of “make no law … abridging the freedom of speech” don’t they (those attempting to restrict free speech) understand?
I have said it before: the government cannot restrict speech based on its content. That means if a t-shirt maker doesn’t want to make a t-shirt with your slogan on it, the government can’t force him to, or penalize him if he refuses, no matter what your slogan is. It’s the Nazi parade scenario in reverse: no matter how beneficial you think your message is, the government can’t force the t-shirt maker to say it, and no matter how detrimental you think someone else’s message is, the government can’t force the t-shirt maker to not say it. I have been interested in First Amendment law since I was in law school. Very few lawyers in private practice get to work on cases involving First Amendment law, and I am no exception. I still enjoy reading about First Amendment cases, however, and particularly free speech cases. In a recent case decision by the U.S. Supreme Court on whether an Asian American dance band, The Slants, could trademark their name, the justices unanimously ruled that under the First Amendment, the government can’t ban offensive speech. The concept is that the First Amendment prohibits restricting speech based on the viewpoint expressed. This statement by Justice Kennedy expresses the idea very clearly: 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 government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society. My take on it? The logic is pretty easy to see. If the First Amendment means that the National Socialist Party of America had a right to have a parade and hand out leaflets in Skokie, Illinois, in 1977 (the Supreme Court decided that in the case of National Socialist Party of America v. Village of Skokie), then the First Amendment must also mean that the government can’t prohibit a racially offensive phrase as a trademark. Allowing the government to prohibit either one would be allowing the government to restrict speech based on its content.
The trademark case is Matal v. Tam. The Court’s decision was released on June 19. As a follow-up to my post earlier this week, an op-ed appeared in the L.A. Times recently that gives a good summation of what kinds of expression can and cannot be limited without violating the First Amendment.
The author of that op-ed is a lawyer whose blog, Popehat, I think I have linked to in the past. He occasionally writes posts about First Amendment cases that are worth reading. I have been interested in first amendment law since I was in law school. Very few lawyers in private practice get to work on cases involving first amendment law, and I am no exception. I still enjoy reading about first amendment cases, however. In a recent case decision by the U.S. Supreme Court, the justices unanimously said that under the first amendment the government can’t ban offensive speech. The concept is that the first amendment prohibits restricting speech based on the viewpoint expressed. This statement by Justice Kennedy expresses the idea very clearly: 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 government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society. My take on it? The logic is pretty easy to see. If the first amendment means that neo-nazis had a right to have a parade in Skokie, Illinois, then it must also mean that the government can’t refuse to allow a racially offensive phrase as a trademark. Allowing the government to prohibit either one would be allowing the government to restrict speech based on its content.
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AuthorThe contents of this blog, this web site, and any writings by me that are linked here, are all my personal commentary. None of it is intended to be legal advice for your situation. Archives
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