The Supreme Court ruled unanimously on Monday that hate speech like other forms of speech is likewise protected by the First Amendment. Titled Matal v. Tam, the case focused on whether the government should deny the trademark request of a rock band called "The Slants" for supposedly disparaging Asians and Asian Americans. The high court ruled 8-0 against the government. The case was introduced during the Obama administration. Judge Neil Gorsuch was not on the bench at the time and did not rule on the case.
The lead singer of The Slants, Simon Tam, will be allowed to register his patent.
American campuses have been rocked of late by debate and even rioting over free speech. Speakers such as Ann Coulter and Milo Yiannopoulos have been banned from some campuses and have fended off accusations of hate speech from progressives and antifa protesters. After rioting ensued over Ann Coulter's scheduled lecture at the University of California-Berkeley, Howard Dean, a former governor and head of the Democratic National Committee, denounced her with the claim: "Hate speech is not protected by the first amendment."
The Supreme Court agreed on two important principles:
1) A patent is private speech, not government speech, and is thus protected by the First Amendment's Free Speech clause;
2) "The proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" So said Judge Samuel Alito in his opinion.
Justice Anthony Kennedy wrote:
“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.”
Kennedy wrote furthermore:
“A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … 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.”
First Amendment scholar Eugene Volokh, who blogs for the Washington Post blogger, remarked: "This no-viewpoint-discrimination principle has long been seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more."
Summarizing the case, Volokh wrote:
“In [Matal v. Tam], the government refused to register ‘The Slants’ as a band's trademark, on the ground that the name might be seen as demeaning to Asian Americans. The government wasn't trying to forbid the band from using the mark; it was just denying it certain protections that trademarks get against unauthorized use by third parties. But even in this sort of program, the court held, viewpoint discrimination — including against allegedly racially offensive viewpoints — is unconstitutional.”
Volokh was of counsel to Simon Tam.
Justice Alito said further:
"[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'”
The leftist Daily Kos website reported on the case with the headline, “Unanimous Supreme Court upholding right to racist trademarks is good news for Washington NFL team.” The first line of the story, which was penned by “Adam B,” was the following: (Warning: this diary, of necessity, contains language which may offend.)