THE FIRST AMENDMENT MEANS THAT THE GOVERNMENT CAN’T PROHIBIT SPEECH BASED ON ITS CONTENT
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.
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