Supreme Court unanimously reaffirms: There is no hate speech exception to the First Amendment

[Gothmog]

I look forward to reading this opinion https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/19/supreme-court-unanimously-reaffirms-there-is-no-hate-speech-exception-to-the-first-amendment/?utm_term=.fe5bb6bda230

From today’s opinion by Justice Samuel Alito (for four justices) in Matal v. Tam, the “Slants” case:

[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.”

Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

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.

And the justices made clear that speech that some view as racially offensive is protected not just against outright prohibition but also against lesser restrictions. In Matal, 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. And this no-viewpoint-discrimination principle has long bee

n seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more.

[nycbos]

1. Not surprising.

I am not a lawyer but I had the chance to take a con law class in school.


From what I remember the standard was that the only speech that isn't protected is speech that would provoke "imminent lawless action"

[Fred Sanders]

2. Do not see a band's name, name not banned but just trademark restricted, as a hate speech case.

[lunasun]

3. Asian American west coast band

the Portland, Oregon "dance-rock" band, which is made up entirely of Asian-Americans, claimed that they chose the name to take back the racial epithet.
A lawyer for bandleader Simon Tam argued that his client "was following in the long tradition of 're appropriation,' in which members of minority groups have reclaimed terms that were once directed at them as insults and turned them outward as badges of pride".

the music has been posted on DU
https://www.democraticunderground.com/12504480

[Not Ruth]

4. Using a term ironically is considered very intelligent

The problem with being very intelligent is how few people understand what you are trying to accomplish

[Not Ruth]

7. Pussy hats symbolizing the Women's March being another great example

[catbyte]

5. Well, that certainly won't help the effort to get rid of Washington DC's football team's

fucked up name which I refuse to type because it was used in the genocide of my ancestors.

Totally not surprised.

[lunasun]

8. You are correct and is a completely different issue but will be used to retain that team's foul name

[gratuitous]

6. I'll have to see if the Court made any distinction

The Slants is a local band whose members are of Asian descent. They took the racist name on themselves, much as rap group NWA took on their racist name themselves (but abbreviated it to its initialism). Does it matter if the trademark registrant takes on a racist name without belonging to the group the word is intended to denigrate (e.g., the Washington Redskins football team)?

[Lee-Lee]

10. I don't see the courts putting a racial test on spoech

That would be just as problematic. Next your debating who is a "real" Asian, native, black person for purposes of using a term and who isn't allowed to.

That's a can of worms no court wants to touch.

[gratuitous]

11. My reading of the case is that it's about trademarks and copyrights, not speech

But yes, I can certainly see some spoiled MWGOT types trying to trademark some hyperoffensive misogynism.

[Lee-Lee]

12. It was ruled on free speech grounds

So the broader application will be to all speech.

They ruled that the government refusing to grant a trademark because they deemed the trademark was offensive to be an unconstitutional infringement on free speech.

That precedent will work it's way into most other forms of expression and how the government can regulate them.

I am curious to see if someone will sue a state for refusing to issue an "offensive" vanity license plate now.

[WinkyDink]

13. Excellent.