Academic journal article The William and Mary Bill of Rights Journal

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications of the Supreme Court's 2017 Free-Speech Rulings

Academic journal article The William and Mary Bill of Rights Journal

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications of the Supreme Court's 2017 Free-Speech Rulings

Article excerpt


During the first six months of 2017, the U.S. Supreme Court issued three major decisions involving the First Amendment.1 Each marked a victory for free speech and was rendered without participation by the Court's newest member, Justice Neil Gorsuch.2

In Matal v. Tam,3 the Court-without dissent-struck down the disparagement clause4 of the Lanham Act.5 That provision vests the United States Patent and Trademark Office (PTO) with authority to deny registration for marks that disparage individuals and institutions.6 The PTO invoked the clause to deny Simon Tam's application to register his band's name, The Slants, because it denigrates Asians.7 The PTO's decision came despite the twin facts that Tam is Asian-American and that he sought to reappropriate the word "slant," eliminating its sting.8

Delivering the Court's judgment for Tam and The Slants, Justice Samuel Alito reasoned that the disparagement clause "offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend."9 Justice Anthony Kennedy, penning a concurrence joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, added that it "constitutes viewpoint discrimination-a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny. The Government's action and the statute on which it is based cannot survive this scrutiny."10

The same day it issued Tam, the Court in Packingham v. North Carolina11 declared unconstitutional a state statute prohibiting registered sex offenders from accessing a wide swath of social-network Internet sites.12 North Carolina used this law to prosecute and convict Lester Packingham, a registered sex offender who posted a Facebook message praising God and thanking Jesus for the dismissal of a traffic ticket.13

Authoring the Court's opinion in Packingham's favor, Justice Kennedy extolled the virtues of the internet and online social networks as vital modes of modern communication.14 He also lambasted the Tar Heel State statute for being "unprecedented in the scope of First Amendment speech it burdens."15 As with Tam, Packingham was decided without dissent.16

Several months before the Court's June 2017 rulings in Tam and Packingham, it held in Expressions Hair Design v. Schneiderman11 that New York's anti-surcharge, credit-card statute18 regulated the speech of business merchants, not simply economic conduct.19 The statute provides that "[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means."20

Although not deciding whether this law violates the First Amendment-the Court remanded the case to the U.S. Court of Appeals for the Second Circuit to resolve that question21-the decision was nonetheless a free-speech victory. Why? Because the Second Circuit previously had concluded the statute, at least as applied to single-sticker price frameworks, "regulates conduct, not speech."22 In accord with the results in both Tam and Packingham, the Supreme Court's March 2017 ruling in Expressions Hair Design came without dissent.23

The positive impact of Expressions Hair Design's holding that New York's statute raised First Amendment-based speech concerns came swiftly. Specifically, the U.S. Court of Appeals for the Fifth Circuit held in 2016 that a similar Texas law "regulates conduct, not speech, and, therefore, does not implicate the First Amendment."24 In April 2017, however, the Supreme Court vacated the Fifth Circuit's decision in light of Expressions Hair Design and remanded the case to that court.25 In May 2017, the Fifth Circuit then remanded it to a "district court for further proceedings consistent with Expressions Hair Design."26

If one were writing headlines for these cases for a law-centric newspaper, they might read-from Tam to Packingham to Expressions Hair Design, respectively- something akin to:

* "Court Reaffirms Right to Offend, Blasts Viewpoint Censorship. …

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