In two unanimous rulings today, the Supreme Court invalidated laws restricting free speech with respect to sex offender use of social media and trademark registration of disparaging terms.
In Packingham v North Carolina, the Supreme Court addressed a North Carolina law that barred sex offenders from using social media. Packingham was a convicted sex offender, who was indicted for making a Facebook post thanking God for success in traffic court. The court stated that the law went too far.
While a state “can prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor,” it cannot bar social media access altogether. “[T]o foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”
In Matal v. Tam, the court addressed the trademark application for a dance-rock band called “the Slants.”
“Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members 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 trademark application was denied since Federal law prohibits registrations that “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” The same statute was used to invalidate the Washington Redskins’ trademark.
The Supreme Court found the disparagement clause violated the First Amendment.
We have said time and again that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592 (1969).
The Court rejected the Trademark Office’s arguments that by granting a trademark, the speech could be regulated since it was tantamount to speech by the government and that the restrictions were permissible because it was commercial speech.
The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered.
The decision is a win for the Redskins as well, but it is unlikely to quell the controversy over its name.
Below is a clip of the Slants playing a cover of “Born in the USA” for the ACLU. I am pretty sure you will not see them play “I Fought the Law and the Law Won”.