BLOGThe Slants Win: Government Cannot Censor Speech Just Because It Is “Offensive”

By Jordan Lorence Posted on: | June 19, 2017

Freedom of speech got a strong boost of protection from those wanting to censor speech they find offensive, like activists on college campuses. The U.S. Supreme Court ruled today that “[s]peech may not be banned on the ground that it expresses ideas that offend.” ADF wrote a friend-of-the-court brief in the case, urging the high court to rule the way it did today.

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.

In the current battles for freedom of speech on college campuses and elsewhere, the Supreme Court’s decision gives welcomed help with its reaffirmation that the First Amendment protects speech others find offensive.  That is the basis for many campus speech codes, and the trademark law at issue here, which prohibits the federal government from issuing a trademark for names that “disparage” individuals or groups.

The Supreme Court first rejected the argument that the government is somehow endorsing the ideas expressed in a name it trademarks, because “[t]he Federal Government does not dream up these marks.” The government was trying to argue that a trademark is not the private speech of the rock group, but the speech of the government.  This makes no sense, the Supreme Court pointed out, when the federal government has granted trademarks for both “Abolish Abortion” and “I Stand With Planned Parenthood,” as well as trademarks supporting and opposing capitalism. Because this speech is private speech, it is fully protected by the First Amendment.

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!

Justice Kennedy, writing for himself and Justices Ginsburg, Sotomayor, and Kagan, went even further in support of freedom of speech, strongly condemning the federal government’s denial of the trademark as unconstitutional viewpoint discrimination. Justice Kennedy cited two cases with heavy ADF involvement to support this conclusion – Reed v. Town of Gilbert (2015) and Rosenberger v. University of Virginia (1995). Justice Kennedy correctly stated that the government cannot censor another’s speech because some private citizens find the speech offensive: “The Government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reac­tion of the speaker’s audience,” he wrote.

So, university officials, pay attention here: If the Slants plan to perform at some public college campus with a speech code, the university will not be able to cancel the performances because some find the band’s name “offensive” or “disparaging to Asians.” Their concert might spark discussion and debate, but it should not justify censorship or a canceled concert.

In a unanimous decision, the Supreme Court got it right today.

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Jordan Lorence

Senior Counsel

Jordan Lorence serves as senior counsel and director of strategic engagement with Alliance Defending Freedom, where he plays a key role with the Alliance Advancement Team.

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