Supreme Court Ruling on Offensive Speech a Victory for First Amendment

The Committee for Justice applauds the Supreme Court's unanimous decision today in Matal v. Tam, striking down a provision of federal law that allows the federal government to deny registration to trademarks that people might find disparaging.

The following is the statement of Committee for Justice president Curt Levey:

Today's decision is a huge victory for free speech, particularly because it comes at a time when censorship of "offensive" speech is reaching epidemic proportions on college campuses and in the public discourse. It is very encouraging to see that the Court's liberal and conservative Justices alike sided with free expression over political correctness.

Today's decision means that the Washington Redskins, whose trademark was canceled by the Patent and Trademark Office (PTO) under the provision struck down today, will very likely win their appeal. While the name "Redskins" is surely anachronistic, so are parts of the names like the "United Negro College Fund" and the "National Association for the Advancement of Colored People." Though some people find those names offensive as well, they cannot use the PTO to force their linguistic preferences on others after today's ruling.

The Supreme Court has long held that the “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers” (see Street v. New York (1969)). But more recently, progressives have been increasingly espousing the notion that "offensive" speech does not deserve First Amendment protection.

That idea is particularly dangerous because "offensive" means whatever those in power want it to mean. Just ask the 9 in 10 Native Americans who are not offended by the Washington Redskins' name, according to a 2016 Washington Post poll, or the Asian-American plaintiff in today's case, who named his band "The Slants." Giving the PTO or any government entity the power to punish speech it subjectively deems offensive is nothing more than a license for unbridled censorship.

Progressives disappointed by today's ruling can take solace in the fact that the PTO will not always be run by the like-minded bureaucrats who deemed "The Slants" unworthy of trademark protection during the Obama Administration. For example, a conservative Administration and its PTO might deem terms like "white privilege" to be offensive. But after today, the PTO would not be permitted to strip the Annual White Privilege Conference of its trademarks or other intellectual property.