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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