On June 19, 2017, the U.S. Supreme Court decided two much-watched first amendment cases, reaching its conclusions on both with a surprising unanimity.
In one of these cases, a dance-rock band of Asian Americas that called itself “The Slants” sought to trademark that name. They ran into opposition due to the “disparagement clause” of the trademark law.
On front man Simon Tam’s appeal, the Supreme Court in Matal v. Tam struck down the disparagement clause, describing it as a violation of the core significance of the first amendment. All eight Justices participating agreed on this result
Tam and his fellow band members made for sympathetic plaintiffs. They clearly were not disparaging the own Asian background but were appropriating the stereotypical slur about Asians’ eyes, turning an intended insult into a badge of honor.
But, as virtually all commenters agreed, the decision has a more visible and less sympathetic beneficiary, the NFL franchise known as the Washington Redskins. That team’s trademarks were cancelled in 2014 due to this same disparagement clause, and the Tam decision will surely assist the lawyers challenging that cancellation on the team’s behalf.
The other big free speech decision of June 19th concerned the speech rights of a convicted sex offender named Lester Packingham.
Packingham pleaded guilty to having taken “indecent liberties” with a 13-year-old girl when he was 21, back in 2002. This fact brought him within the domain of North Carolina’s law concerning sex offenders, which makes it a felony for anyone with such a conviction on his record to use virtually any social networking sites (with minor specified exceptions) if they are also used by minors. This prohibition can continue for thirty years after the criminal conviction.
Again, SCOTUS voted 8-0 to void the law in question on first amendment grounds. The North Carolina statute, the court said, sweeps far too broadly. Though the protection of minors from sexual predators is, of course, an important state goal, this could be accomplished constitutionally by more narrowly tailored actions, such as laws prohibiting sex offenders from using such sites to contact or gather information about minors. Not only was this statute not narrowly tailored, North Carolina was making no accusation that Packingham had used Facebook for any such purpose.
On Twitter, the Packingham decision almost immediately became a haiku!
State can’t bar sex offender
From all types of usehttps://t.co/IIErDsikoW
— Supreme Court Haiku (@SupremeHaiku) June 20, 2017
Left Wing and Right Wing
Reaction to these decisions doesn’t break down in the way one might naively expect. One left-of-center blogger, “misanthropomorphic,” called this a “first amendment victory despite a conservative SCOTUS.”
New post: “REDSKINS FOREVER? Rock band court win could help NFL team keep name” https://t.co/A7OuUhFIBr
— Major Victor Bravo (@Conservatexian) June 19, 2017
The word “despite” it is a bit misleading. Both the right and the left in American politics are split these days on how much and what kind of speech is or should be free. The Supreme Court’s “right” and “left” consists of Justices who take the pro-speech side of those internal debates, which makes such unanimous votes possible on these particular issues.
In The Daily Wire, Ben Shapiro (a conservative) praised Matal v. Tam in particular, expressed his delight at the unanimity of it, and used it as a springboard to discuss more generally social/cultural trends that he finds disturbing, such as the suggestion “that a production of Julius Caesar is an incitement to assassination.”
A generally pro-Trump blogger known as “Mengerian Knight” finds himself praising the American Civil Liberties Union for its work assisting The Slants. “Give credit where credit’s due,” the Knight says.
— Mengerian Knight (@MengerianKnight) June 19, 2017
So if all the Justices (except newly-arrived Justice Gorsuch, who did not participate), and Trump supporters and the ACLU are all on the same side, who can be opposed?
Prior to the Supreme Court’s decision, Cecelia Khang and Daniel Kornstein collaborated on an article making the case in favor of a continued ban on disparaging trademarks.
Khang is the director of litigation at Asian Americans Advancing Justice. Kornstein is a partner at the New York law firm Emery Celli. I believe it is fair to describe their view as a rebellion of a political center against the odd consensus on this issue of left and right.
Khang and Kornstein are skeptical of the contention that Tam and his bandmates’ use of “slants” follows a “progressive tradition of appropriation.” They believe that the negative consequences of the profit-seeking use of disparaging terms will far overwhelm the value of any such “high-minded expressive goal.”
More broadly, these two authors oppose the whole idea of “constitutionalizing trademark protection,” since such protection in its essence a fencing-off of part of the English language, which they believe should remain a commons.
Kornstein has expressed the same view subsequent to SCOTUS’ decision. In an opinion piece for USA Today, he called Tam a “win for state-sponsored bigotry.”
Kornstein’ view, too, has a following on Twitter.