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Jun 22, 2017

Supreme Court Affirms Free Speech, Even When "Offensive"

Earlier this week, the U.S. Supreme Court ruled in favor of The Slants, a rock band that was initially denied a trademark for the name of its group.

Let's take a look.

Over at the ADF blog, Jordan Lorence has the background on the case:

"The case, Matal v. Tam, upheld a lower court ruling that the federal government violated the First Amendment when it denied a trademark for the name of the rock group, 'The Slants,' because it is a name that 'disparages' a group of people. The members of The Slants, all Asian-Americans, 'believe that by taking that slur as the name of their group, they will help to "reclaim" the term and drain its denigrating force,' the Supreme Court wrote."

Lorence points out that this decision has implications for college campuses that have speech codes:

"Universities with speech codes should quickly act to change their policies banning 'hate speech,' because the Supreme Court in Tam has ruled that viewpoint discrimination is unconstitutional, and '[g]iving offense is a viewpoint.' Wow! The Supreme Court repudiated the main justification for campus speech codes!"

One writer at the L.A. Times, however, hopes to make a case for "restricting hate speech." Laura Beth Nielsen, a professor of sociology at Northwestern University and research professor at the American Bar Foundation, makes numerous claims throughout her article, summarized here:

  1. Speech is already restricted in numerous ways, including preventing somebody from yelling "fire" in a crowded theater. She also mentions that some cities have banned panhandling.
  2. "Hate speech" is often described as an "emotional scratch" but actually "can lead to various negative consequences," including, she claims, "cigarette smoking, high blood pressure, anxiety, depression, and post-traumatic stress disorder."
  3. All the other "economically advanced democracies in the world" restrict "hate speech."

Let's take a look at each of these claims, in order.

First, she's right that there are some limitations on free speech. The common example of yelling "fire" in a crowded theater originates from a 1919 Supreme Court caseSchenck v. United States, where Justice Oliver Wendell Holmes Jr. wrote that "[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." The Atlantic notes that the rule announced in Schenck might not be good law today:

"In 1969, the Supreme Court's decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech--and even speech advocating violence by members of the Ku Klux Klan--is protected under the First Amendment, unless the speech 'is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'"

In other words, the limits on speech are themselves extremely limited: Calling your rock band The Slants is not "directed to inciting or producing imminent lawless action" or "likely to incite or produce such action."

Recall that Nielsen also refers to laws prohibiting panhandling, but she neglects to mention that, two years ago, the U.S. Court of Appeals for the Seventh Circuit struck down a Springfield, Illinois, ban on panhandling. That case relied on the decision in Reed v. Town of Gilbert, an ADF case at the U.S. Supreme Court from earlier that year. In addition, the Kentucky Supreme Court struck down Lexington’s prohibition on panhandling earlier this year. The bottom line is this: the panhandling issue is far from settled, and Nielsen’s legal reflections don’t give the whole picture.

On the second point: The author does not provide a source for these claims, and it is difficult to corroborate them. Even in Jeremy Waldron's book, "The Harm in Hate Speech," the claim is not nearly so strong: The primary harm in "hate speech," Waldron argues, is that this sort of offensive speech discourages the targets of the speech from participating in society. But as Professor Michael W. McConnell notes in The New York Times, offensive speech is often followed by counter speech, which may actually bolster the person or group targeted in the initial speech.

Finally, on the third point: It is true that many countries restrict "hate speech," with varying definitions and degrees of restriction. That is hardly a reason for the U.S. to follow suit, however. Declaring by fiat that we "aren't like the other nations" is akin to a student telling his or her parents that he should be allowed to smoke because the others kids are doing it. Such an argument simply begs the question that must be addressed: whether the dangers of limiting free speech outweigh any professed benefits of imposing those restrictions.

As to the Supreme Court’s ruling in the Matal case, Lorence put it best in his conclusion at the ADF blog: "In a unanimous decision, the Supreme Court got it right."


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