Supreme Court rules that “hate speech” is free speech

On Sunday, by a vote of 8-0 (Gorsuch didn’t rule), the U.S. Supreme Court decided the case of Matal v. Tam,  which involved a patent application to trademark the name “The Slants,” an Asian band of which Simon Tam was a member. Tam’s attempt to patent trademark the band’s name was rejected by the trademark office, but a federal appeals court ruled that that rejection was illegal because the U.S.’s Lanham Act (1946), under which the application was rejected, was unconstitutional. That Act is the U.S.’s main trademark law, and prohibits trademarks that disparage individuals or groups. The initial rejection was, I think, based on the fact that “slant” is a slur on Asians, referring to their eye shape (they have an epicanthal fold), and thus that the name disparages an ethnic group.  The Slants comprise four Asian-Americans, but that doesn’t matter:

The Slants

The appeals court ruled that rejecting the name violates the First Amendment’s provision of free speech. The government appealed, and on June 18 the Supreme Court voted to uphold the appeals court ruling (see that link for all legal documentation); ergo you can register a trademark that some people would consider “hate speech.” For those who like some visuals with their news, here’s a short history of the case in which an Asian-American lawyer explainins the Supreme’s decision:

The opinion, written by Justice Alito, is here and starts on page 5 of the link. And here, in yellow, is the relevant part of the ruling:

It’s unusual for the Court—liberals and conservatives alike—to rule unanimously on a case like this. What’s clear is that they’ve left no doubt that “hateful speech” that demeans people “on the basis of race, ethnicity, gender, religion, age, disability or any other similar ground” is protected under the First Amendment, a ruling consistent with the court’s history. Of course I will decry genuine bigotry, but, as always, the court is trying to prevent a slippery slope policy in which some speech that people consider hateful (like criticism of Islam or affirmative action) is seen by others as constructive. As for purely bigoted speech, we still have something to learn by allowing its promulgation (viz., Holocaust denialism, the discussion of which has taught me a lot). I’ve found John Stuart Mill’s discussion of that point in On Liberty pretty convincing.

It’s telling that liberal and very conservative Justices agree that the Constitution affords no protections for people becoming offended. Those who cry that “hate speech is not free speech” are thus flying in the face of this strong legal opinion.

h/t: Grania

129 Comments

  1. Posted June 20, 2017 at 8:49 am | Permalink

    Hi Jerry, is the title what you intended?

    • Posted June 20, 2017 at 8:53 am | Permalink

      Just what I was about to write; get rid of the “not”.

    • Ken Kukec
      Posted June 20, 2017 at 8:56 am | Permalink

      Yeah, that headline had me searching for the twist ending.

    • Stephen Barnard
      Posted June 20, 2017 at 8:57 am | Permalink

      Agree.

    • Posted June 20, 2017 at 9:01 am | Permalink

      SORRY! I screwed up. I’ve corrected it here and on Twitter. Thanks for pointing out an egregious typo!

      • Posted June 20, 2017 at 10:09 am | Permalink

        Even the amended title, Supreme Court rules that “hate speech” is free speech, gave me the immediate impression that you didn’t like the ruling.

        I should have known better and I’m relieved that my first impression was wrong, but for me at least, the title functioned as very effective click-bait. I’m not saying that’s good or bad, just that for me it was a “Wait, what?” moment.

        • Stephen Barnard
          Posted June 20, 2017 at 10:28 am | Permalink

          That’s funny. Jerry’s been mocking click bait. Now he’s subconsciously mastered it. 🙂

      • Gary Allan
        Posted June 21, 2017 at 8:42 am | Permalink

        You could also get rid of the “not” in your tweet.

    • Filippo
      Posted June 20, 2017 at 9:01 am | Permalink

      Sub.

      I wonder how the gov’t/courts would have viewed/ruled on any number of group names, e.g.:

      The Honkies
      Crackers
      Inbreds
      Eggheads
      Mohammeds (or a drawing – as opposed to a photograph – of the group)
      Nerds
      Geeks
      Rednecks
      Pussy Riot.

      • Ken Kukec
        Posted June 20, 2017 at 9:18 am | Permalink

        Dead Kennedys?

      • Brujo Feo
        Posted June 20, 2017 at 9:19 am | Permalink

        “Rednecks”…OK, true story. In 1974 or 1975, my then-girlfriend and I were traveling about the country, as an itinerant musical duo playing the usual hippie circuit.

        I forget where exactly, but one night we were playing, as we often did, Jerry Jeff Walker’s “Up Against the Wall, Redneck Mother,” when I was physically assaulted (or the attempt was made at least–she mostly fell all over herself while trying to punch me) by a very drunk woman who yelled: “HEY! My MOTHER was a redneck!”

        • Ken Kukec
          Posted June 20, 2017 at 9:29 am | Permalink

          So was Jerry Jeff’s. “M” wasn’t just for the mudflaps on his pick-up truck. 🙂

      • BJ
        Posted June 20, 2017 at 9:25 am | Permalink

        They would have ruled exactly the same way. What makes you think otherwise?

        • Filippo
          Posted June 21, 2017 at 8:30 am | Permalink

          “They would have ruled exactly the same way.”

          The only way I myself could make that statement is if I could read the justices’ minds.

          I’ve read (not at a terribly slow and exacting pace) through the opinion, and have seen no statement to the effect that it is impossible that the SCOTUS could ever find any word or phrase or sentiment, expressed in the form of a trademark, that would be an exception to the Tam ruling. If I missed it, anyone is welcome to show it to me.

    • Posted June 20, 2017 at 9:04 am | Permalink

      I came to the comments section ready to ask the same thing.

      I was flabbergasted to read the title and then the opening part “On Sunday, by a vote of 8-0”. Imagine such a swing in the US Supreme Court!

    • Posted June 20, 2017 at 9:24 am | Permalink

      “Words matter.” “Not” and “no” especially.

  2. GBJames
    Posted June 20, 2017 at 8:51 am | Permalink

    sub

  3. Ken Kukec
    Posted June 20, 2017 at 9:01 am | Permalink

    If the Trademark office rejected The Slants, how’d N.W.A. ever get its mark approved?

    • Michael
      Posted June 20, 2017 at 11:36 am | Permalink

      Wait, that didn’t mean Northwest Airlines?

  4. Craw
    Posted June 20, 2017 at 9:04 am | Permalink

    The headline is confusing but actually correct. Free speech is a right and a policy; “hate speech” is a vague label for a body of speech. No body of speech is logically a right or policy, so “hate speech”, like “pickle speech” or “intersectional queer theory speech” are free speech either. No speech is.

    This kind of linguistic confusion is actually pernicious, because it clouds and obscures thinking.

    • Posted June 20, 2017 at 11:09 am | Permalink

      Speaking of linguistic confusion, in addition to your post above, Google shows only one other occurrence of “are free speech either” on the web, and the other instance is actually intelligible.

      • Craw
        Posted June 20, 2017 at 12:18 pm | Permalink

        It seems simple enough. Moby Dick is not the right to a speedy trial. Moby Dick is a book not a right. “Free speech” is a right, it is not a variety of speech. Thus no kind of speech is actually free speech; free speech is the right being exercised by the speaker.

  5. tubby
    Posted June 20, 2017 at 9:11 am | Permalink

    Open Arguments had an interview with Simon Tam earlier this year, which can be found at http://openargs.com/oa33-interview-slants/

  6. Alric
    Posted June 20, 2017 at 9:21 am | Permalink

    Great. We are going to have to deal with Nazis and racists forever.

    • Posted June 20, 2017 at 9:32 am | Permalink

      If we could restrict their speech, like in Europe, they would disappear, like they did in Europe….

      • Alric
        Posted June 20, 2017 at 9:37 am | Permalink

        France and Germany have been able to deal with their conservative hate media much more effectively than the US.

        • Posted June 20, 2017 at 9:58 am | Permalink

          If by “effective” you mean “having no effect,” then yes

          • Posted June 20, 2017 at 10:17 am | Permalink

            + 1

          • Craw
            Posted June 20, 2017 at 12:21 pm | Permalink

            I do not think that is what he means. He means people are fined, jailed, and harassed more effectively by the law in the EU. In that he is correct. He probably means other less defensible things.

            • Posted June 20, 2017 at 12:25 pm | Permalink

              Yes, I’m sure the policy is effective in doing what the policy does. But it appears to be ineffective at correcting racism. Sort of like how “sin” taxes are effective at collecting revenue, but ineffective at reducing “sin.”

        • Posted June 20, 2017 at 1:29 pm | Permalink

          France and Germany have been able to deal with their conservative hate media much more effectively than the US.

          So has North Korea. Democracy is a pain, isn’t it?

    • Ken Kukec
      Posted June 20, 2017 at 9:33 am | Permalink

      You think the cure for racism and Nazism is making particular words verboten?

      • Alric
        Posted June 20, 2017 at 9:38 am | Permalink

        Inasmuch as they stop demonstrating basic decency towards other people, yes.

        • jeffery
          Posted June 20, 2017 at 10:09 am | Permalink

          The big problem, Alric, and the “slippery slope” that Jerry mentions is: who gets to decide what “basic decency towards other people” is? Should someone be locked up for saying the President is a liar? Can your neighbor have you arrested for saying that they should mow their lawn more often? Would you be fined for describing someone as, “fat” (whether it was true, or not)? All despotic regimes have laws against any criticism of the regime, and Islam KILLS people for “insulting” the prophet or the Koran- maybe we should do this for Christians and the Wholly Babble, too? If the “N-word” is outlawed, will we be able to get blacks to stop using it? Your attitude leads to nonsense.

          • Alric
            Posted June 20, 2017 at 10:31 am | Permalink

            So no anti-discrimination laws either then? I think we are just giving up to easy on unpacking each example of possible hate speech.

            • Paul S
              Posted June 20, 2017 at 10:53 am | Permalink

              Anti-discrimination laws do not restrict free speech.

              • Posted June 20, 2017 at 11:11 am | Permalink

                As I said elsewhere here, Alric does have a point; there are restrictions on 1st amendment protections already and it is possible to carefully craft anti-speech laws.

                Of course Alric fails to accept the significance of the problem inherent here; what is “safe” speech today may be hate speech tomorrow. It all depends on who is crafting those laws.

            • Denise
              Posted June 20, 2017 at 2:04 pm | Permalink

              When you note who is in Congress and the White House and on the Supreme Court, doesn’t it scare you just a little bit what kinds of speech they might decide to ban?

              By granting others freedom of speech we are protecting ourselves.

              • Posted June 20, 2017 at 3:15 pm | Permalink

                +1

                And, the blindingly obvious once again: Only speech we don’t agree with needs protection.

    • mikeyc
      Posted June 20, 2017 at 9:42 am | Permalink

      At one time I would have said this is an astonishing sentiment. But these days, with the stench of leftist facism rising everywhere, I have come to expect it.

      • darrelle
        Posted June 20, 2017 at 10:00 am | Permalink

        Yes. This seems to be how they get to physical violence being an ethically correct and justifiable response to speech they deem hateful enough. If you first establish the premise that speech can be equivalent to physical violence then naturally physical violence can be an appropriate response to speech.

        • Diane G.
          Posted June 22, 2017 at 4:01 am | Permalink

          Excellent point.

    • Posted June 20, 2017 at 9:55 am | Permalink

      Great. We are going to have to deal with Nazis and racists forever.

      Obviously Nazis and racists can be offended by what you say, therefore your speech can be made illegal, and probably should be.

  7. Tom
    Posted June 20, 2017 at 9:22 am | Permalink

    What are the motives of people both in Europe and America (apart from exercising THEIR right to free speech) that continually challenge free speech by taking such cases to the Courts?
    Some may not have noticed but the most draconian laws limiting free speech have always been in countries with the most brutal political systems and therefore the most in need of normal free speech.

    • Alric
      Posted June 20, 2017 at 9:26 am | Permalink

      Basic decency and realizing that hate speech can hurt people as much as physical assault.

      Also, not smirking the responsibility and hard work of defining as precisely as possible what is hate speech, just like we do for any other legal matter.

      • BJ
        Posted June 20, 2017 at 9:32 am | Permalink

        This is a classic argument made from the assumption that not only will the people you personally agree with get to make these laws, but that they’ll always be replaced by other people you agree with, the courts will always be stacked with such people as well, and that even people you think you agree with will never overreach once the window is open for them to suppress speech. How anyone can think this will be the case if they know anything about history, and especially right now, simply baffles me.

        • Alric
          Posted June 20, 2017 at 9:35 am | Permalink

          This is true of anything in society. If you really believe this you shouldn’t believe in any law or contract.

          • BJ
            Posted June 20, 2017 at 9:42 am | Permalink

            No, it’s not. Take a look at the history of almost every law we have for physical violence. Then compare it to how often laws regarding speech transform, and figure out where you’re going wrong.

            And no, words cannot hurt people as much as actual acts of violence. You’re engaging in the classic, well-hated (because it’s absurd) argument of, “speech that hurts feelings is the same as beating people violently.”

            • jeffery
              Posted June 20, 2017 at 10:12 am | Permalink

              What’s that saying? “No one is born with the ‘right’ to NOT be offended.”

            • Posted June 20, 2017 at 11:07 am | Permalink

              To be fair to Alric, (s)he may be saying that since it is possible to carefully craft, say, anti-discrimination laws in employment, we should be able to carefully craft anti-speech* laws that don’t impinge on (most) 1st amendment rights. (S)he does have a point, after all exceptions to 1st amendment protections exist.

              What Alric and other Regressives fail to detect is the ice beneath their feet.

              *FTR, there is NO distinction between hate speech and speech and I will not play that game.

      • GBJames
        Posted June 20, 2017 at 9:38 am | Permalink

        “hate speech can hurt people as much as physical assault”

        Oh, for christ’s sake. I haven’t seen a more silly statement in years. Or, to be generous, perhaps you have little understanding of what physical assault involves.

        No doubt that comment seems to you equivalent to a punch in the nose.

        • Alric
          Posted June 20, 2017 at 9:43 am | Permalink

          Maybe you don’t understand how hurtful racism can be.

          • BJ
            Posted June 20, 2017 at 9:50 am | Permalink

            I certainly do, having been a Jew growing up in a community where I was regularly called “kike,” “Jewbag” (actually, that one just made me laugh because it was so stupid), and plenty of other things. But you know what was a lot worse? When people *actually beat me up.* I think you’re the one who doesn’t understand things.

          • darrelle
            Posted June 20, 2017 at 9:51 am | Permalink

            Very much like words are not equivalent to physical violence, words are also not equivalent to racism.

          • GBJames
            Posted June 20, 2017 at 10:17 am | Permalink

            You confuse racism with racist speech. Ban the latter and the former remains.

        • darrelle
          Posted June 20, 2017 at 9:48 am | Permalink

          Agree.

          • jeffery
            Posted June 20, 2017 at 10:13 am | Permalink

            Looks like we have a little SJW in our midst; he picked the wrong forum!

      • Ken Kukec
        Posted June 20, 2017 at 9:40 am | Permalink

        Were that the case, the women’s suffrage and civil rights movements would’ve been shut down as “hate speech” before they ever got off the ground.

        • Alric
          Posted June 20, 2017 at 9:42 am | Permalink

          I’d like to read the justification for this.

          • Ken Kukec
            Posted June 20, 2017 at 10:11 am | Permalink

            When the civil-rights movement began, the vast majority of white people in the South found the idea of black people drinking out of the same water fountain, or using the same bathrooms, or swimming in the same pools (and never mind about miscegenation!) much more hurtful and hateful — and dangerous — than a physical assault. That majority would’ve had no problem passing laws outlawing anti-segregation speech as violating “common decency” were it not for the First Amendment.

            History demonstrates that unfettered free speech has always been the sine qua non for the advancement of human rights. Plus ça change

      • mikeyc
        Posted June 20, 2017 at 9:47 am | Permalink

        This is the kind of thinking that gives birth to tyranny. No one is ever hurt by speech. Only action. You can outlaw acts but not thought. Once you start down that path no one is safe.

        • Posted June 20, 2017 at 11:50 am | Permalink

          “Have you ever fought an idea, Picard? It has no weapon to destroy, no body to kill.”

          • BJ
            Posted June 20, 2017 at 7:26 pm | Permalink

            “You know, there are some words I’ve known since I was a schoolboy. ‘With the first link, the chain is forged. The first speech censured, the first thought forbidden, the first freedom denied, chains us all irrevocably.’ Those words were uttered by Judge Aaron Satie as wisdom and warning. The first time any man’s freedom is trodden on, we’re all damaged.” — Jean-Luc Picard

            That Judge Aaron Satie sounds pretty awesome.

      • Rasmo carenna
        Posted June 20, 2017 at 9:55 am | Permalink

        “…hate speech can hurt people as much as physical assault.”

        That is simply untrue and, quite frankly, a bit silly. It’s the kind of thing that people who have never been physically assaulted would say. I’ve been both physically and verbally assaulted at several points in my life. I prefer no assaults of any kind, but I know what I would choose if I absolutely had to.

        • Zach
          Posted June 20, 2017 at 5:23 pm | Permalink

          That is simply untrue and, quite frankly, a bit silly. It’s the kind of thing that people who have never been physically assaulted would say.

          I thought the same thing.

      • Tom
        Posted June 20, 2017 at 10:46 am | Permalink

        Alric, “shirking” not “smirking”

      • Posted June 20, 2017 at 3:17 pm | Permalink

        “hate speech can hurt people as much as physical assault”

        That’s simply absurd.

    • BobTerrace
      Posted June 20, 2017 at 9:28 am | Permalink

      Exactly. A case in point is the Trump administration trying to squelch the media by not allowing them to cover White House press conferences. It is the beginning of the slippery slope.

    • JohnE
      Posted June 20, 2017 at 9:40 am | Permalink

      Actually, the Slants are the ones who took the case to court, to challenge the denial of their trademark application for the band’s name by the U.S. Patent and Trademark Office. I suspect the USPTO simply wanted the cover of someone else (i.e., the Supreme Court) telling them they HAD to approve applications for potentially offensive trademarks, so that the USPTO couldn’t be lambasted for making that decision on their own.

      • nicky
        Posted June 20, 2017 at 12:03 pm | Permalink

        Sounds quite credible, probable even.

    • Posted June 20, 2017 at 1:38 pm | Permalink

      I suppose, lust for power (often unrealized by its own carrier who considers himself the nicest person possible, and therefore entitled to ban things to meaner people).

    • Barney
      Posted June 20, 2017 at 3:11 pm | Permalink

      No one challenged free speech by taking this case to court. The “challenge” happened over 70 years ago, when the law was passed by Congress. It came to court because people wanted the law overturned.

      Perhaps the motive was to not involve the government in assisting disparaging speech (by helping to make it profitable). I don’t see that is ‘draconian’. It may be because, 70 years ago, profit wasn’t held to be so sacred, but something that could be weighed against other interests.

      Strangely, the judges’ opinions in this case seem to contradict each other, and yet arrive at the same conclusion. Alito writes that this is not a case of government-subsidized speech, since the trademark applicant pays a fee; Kennedy says that in the trademark program, the government spends money “to encourage a diversity of views from private speakers”. Both conclude the government must not distinguish between good and bad speech, for opposite reasons.

      http://www.scotusblog.com/2017/06/opinion-analysis-justices-hold-ban-disparaging-trademarks-violates-constitution/

  8. BJ
    Posted June 20, 2017 at 9:23 am | Permalink

    “… as always, the court is trying to prevent a slippery slope policy in which some speech that people consider hateful (like criticism of Islam or affirmative action) is seen by others as constructive.”

    This is exactly right, and also demonstrated by the concurring opinion by Justice Kennedy, who was joined by Ginsburg, Kagan, and Sotomayor, which says, “The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing.”

    An excellent decision by the court.

    Also, look up the discography of the band if you want a good laugh! The titles of their albums are clever and hilarious.

  9. Posted June 20, 2017 at 9:26 am | Permalink

    That headline was pure clickbait Jerry! Unintentionally, of course! Fortunately, I had seen this opinion before and figured it was a typo. In any event, I don’t think it will have much of an affect on the SJWs. Law and logic seem too beyond their lazy grasp.

  10. Posted June 20, 2017 at 9:31 am | Permalink

    Imagine if the court had ruled to overturn precedent for this particular case. They would be using a backfire scenario to affirm a hate speech exception, aiming it straight back against the population it’s supposed to protect.

  11. Posted June 20, 2017 at 9:38 am | Permalink

    The idea that offending should limit free speech is patently absurd. Offense, like beauty, is in the eye of the beholder, so what is innocuous to some is offensive to others. The religious could claim to be offended by blasphemy.

  12. Kevin
    Posted June 20, 2017 at 10:14 am | Permalink

    As for the decision, I am indifferent. Alas, it is a constant reminder that Americans, in particular, are so easily offended and insecure about anything that a) might hurt their feelings, or more twisted b) might hurt the feelings of someone else.

    Tattoo a swastika to your face and you will not offend intelligent people. You will look like a dumb ass.

    • Ken Kukec
      Posted June 20, 2017 at 10:41 am | Permalink

      We Americans get offended only when someone tells us we’re easily offended, pardner. This is a bold nation founded by bold people, who saw fit to enshrine free expression as the fundamental law of the land — primus inter pares in our Bill of Rights. Our First Amendment is a beacon of freedom to the rest of the world.

      (Even if I am just fuckin’ with ya by sayin’ so. 🙂 )

    • Tom
      Posted June 20, 2017 at 10:53 am | Permalink

      Yes , but show a swastika armband and people may think something more serious..
      Context is all.

  13. Stephen Barnard
    Posted June 20, 2017 at 10:41 am | Permalink

    It’s an encouraging ruling, made emphatic by its unanimity. Why didn’t Gorsuch rule?

    • Derek Freyberg
      Posted June 20, 2017 at 10:47 am | Permalink

      Total guess, but probably because he was not on the Court at the time of the oral argument.

      • Brujo Feo
        Posted June 20, 2017 at 10:51 am | Permalink

        Sorry…didn’t see that Derek Freyberg had already answered the question–correctly.

    • Brujo Feo
      Posted June 20, 2017 at 10:50 am | Permalink

      Because the case was argued to the Court before he joined it.

  14. rickflick
    Posted June 20, 2017 at 11:31 am | Permalink

    “the Constitution affords no protections for people becoming offended”

    That sounds like it would make a great response when challenged by regressives and Islamists. I’ll have some signs made up.

  15. Barney
    Posted June 20, 2017 at 12:37 pm | Permalink

    How would denying a trademark be a restriction of free speech? By definition, granting a trademark prevents other people using it. If the band were refused the trademark, they could still call themselves that (how many bands bother getting a trademark on their name? Only those getting successful enough for people to try to sell knock-off merchandise, or play gigs pretending to be the original band).

    This case isn’t about ‘free speech’; it’s about commercial use of language. It’s saying that the government should support commercial use of original names, whether or not they’re offensive. It’s saying the government should restrict speech in an even-handed manner, not depending on whether it’s offensive.

    • GBJames
      Posted June 20, 2017 at 12:50 pm | Permalink

      “How would denying a trademark be a restriction of free speech?”

      When a government body blocks the use of a trademark on the basis that someone might be offended it is most definitely a limit on free expression. Trademarks are granted/denied on the basis of prior use. Use of a trademark is clearly a matter of expression. It is not the government’s role to police expression unless there is a clear need. “Offense” is not such a reason.

      • Posted June 20, 2017 at 1:52 pm | Permalink

        No it isn’t.

        Nobody has told this band they cannot use the name.

        Denial of a trademark is not a limitation on speech, it is denial of a privilege, to whit: the government will protect the name and not let anybody else use it in the same context as you use it.

        In fact, it’s a pretty convincing argument that the US trademark system is unconstitutional. Now no other band can call themselves The Slants which is a clear denial of their right to free speech.

        • GBJames
          Posted June 20, 2017 at 1:56 pm | Permalink

          It seems the Supreme Court seems to disagree with your view.

          You keep ignoring the reason the trademark was denied. Basing the decision on potential offense is important.

          • Posted June 20, 2017 at 2:14 pm | Permalink

            The Supreme Court is capable of error. If it were not, nobody would care that it will have a majority of Republicans on it for years to come.

            Note that I agree with the ruling in the sense that The Slants should be granted their trademark and the USPTO’s given reason for denying it is a very bad one. But it’s bad because the given criterion of offence is entirely subjective.

        • Posted June 20, 2017 at 2:30 pm | Permalink

          That’s correct. Trademark and copyright restrictions ARE exceptions to the 1st Amendment, as are libel, fraud, child pornography and incitement. None of our enumerated rights are without exception. These exceptions have been carved out because the underlying principles are so important; the exceptions are proof of their value.

          There is a long case history around these and I am not familiar with them. But from a layman’s perspective it is reasonable to have limited protection on the ownership of things that have commercial value, such as brand names, inventions or works of art, music or literature. That includes brand names. It protects both the producer and the consumer. But it *IS* an exception to the 1st amendment.

  16. nicky
    Posted June 20, 2017 at 12:44 pm | Permalink

    being ‘offended’ should never be a criterion for suppressing free speech or free enquiry. I think about all of us here agree with that. ‘Offense” is easily taken, and does not mean very much.
    However, there is such a thing as hate speech. Let us take is from the ‘direct’ or ‘less direst’ incitation to violence and killing.
    -“Death to those who mock the Prophet” (or “Islam”) appears rather clear: it is incitement to murder (especially since we know they are not loose threats). Should be prosecuted. I think we can all agree to that?
    – “They are cockroaches, what do we do with cockroaches?” A bit less clear, but instrumental in causing a genocide. How many would agree that that is over the limit?
    – “The Jew is an Untermensch”, even less direct, but instrumental in one of the largest genocides in history. Is that covered by free speech?
    The question is, how direct must a threat be to lose it’s ‘Free Speech umbrella’? I have no clear answer, but I’d think all three examples should not be, of course with some hindsight.

    • Ken Kukec
      Posted June 20, 2017 at 1:00 pm | Permalink

      Under the US First Amendment the answer is that the likelihood of violence must be “imminent” — that is, likely to occur immediately, before countervailing free speech has an opportunity to counteract the incitement.

      • nicky
        Posted June 20, 2017 at 1:15 pm | Permalink

        that immediately raises the question, how imminent is ‘imminent’.
        In the three examples above only the first would qualify as unquestionably ‘imminent’, but I don’t like to let examples 2 and 3 off the hook.

        • darrelle
          Posted June 20, 2017 at 1:45 pm | Permalink

          Such ambiguity is typical of all human interactions and is why we have trials, juries and other similar methods of dispute resolution. Reality is too messy to be able to have a justice system in which the laws apply unambiguously to every situation and IMO the more rigid a justice system becomes the less fair and ethical it becomes.

          I think the answer to your question is a justice system much like the one we have but with less corruption and bias, and tweaked based on pragmatic assessment of what real data actually shows to be effective (or not).

        • eric
          Posted June 20, 2017 at 8:02 pm | Permalink

          IANAL but AIUI the courts typically require more specificity of target and timeframe (and sometimes audience) for it to be considered incitement. Thus none of your quotes would count as incitement under US law. Incitment would be more like “Let’s all go get baseball bats and kill Bob tonight for mocking the prophet.”

          A good example of how far the courts are willing go in allowing speech is to consider that some websites will post pictures of people with gun sights over their faces, plus their names and addresses…and this is not considered incitement. Because the sites aren’t directing specific people to do the deed, and they aren’t telling them to do it now or soon or saying when.

  17. Ann German
    Posted June 20, 2017 at 12:59 pm | Permalink

    An now for something completely different: as a friend of mine commented immediately upon hearing of this opinion, allowing anyone to trademark (and thus restrict usage) a word in common usage is violating my freedom of speech.

    • Ann German
      Posted June 20, 2017 at 12:59 pm | Permalink

      “And now . . . .”

    • Ken Kukec
      Posted June 20, 2017 at 1:11 pm | Permalink

      I’m no expert in intellectual property, but I believe a trademark restricts the use of the marked material only for specific commercial purposes. You and your friend should feel free to continue using the term “the slant” for your own non-commercial-rock-&-dance-band purposes. 🙂

      • Posted June 20, 2017 at 1:56 pm | Permalink

        I have a band called “The Slants” (three of our members are lawyers and we are all fans of Terry Pratchett). Our right to use the name in the US is now denied. We have been denied freedom speech.

        • Posted June 20, 2017 at 2:42 pm | Permalink

          Yep. You have been denied your right to call your band the Slants. That’s how copyright/trademarking works.

          The issue, of course, is not denial of YOUR free speech rights but that the government may not constrain the speech rights of others based on content alone. That is what happened here and why the case was before the SCOTUS.

          In your case an exception to the 1st Amendment has been carved out (Article I, Section 8, Clause 8 of the US Constitution) because the government has an interest in preventing your band from cashing in on the name of another band who, basically, got there before you.

          • Brujo Feo
            Posted June 20, 2017 at 3:01 pm | Permalink

            The question, reminiscent of Bohr’s commentary on Pauli’s explanation of his version of a unified field theory, is whether this band’s name is offensive ENOUGH. If one really wanted to be offensive, the way to do it would be to form one of those all-Asian girl bands that dress up like Catholic school girls, and call themselves “The Slunts.”

          • Posted June 20, 2017 at 4:54 pm | Permalink

            the point I am trying to make is that the whole point of the trademark concept is to restrict the freedom of speech of some people in order to achieve some other goal, namely to stop people being ripped off by counterfeit goods and services including bands. My freedom of expression is curtailed because it is considered a bad thing for people to pay money to see my band thinking they are going to see a different much better band.

            The idea that not granting the trademark to the Slants is a restriction of their freedom of speech is bogus. They were still free to call themselves The Slants. Their freedom of speech was not curtailed. However, the reason why they were denied a trademark was also bogus. Offence is always subjective.

            • GBJames
              Posted June 20, 2017 at 5:13 pm | Permalink

              Well, that’s not the only point you’re trying too make. You’re also asserting some sort of “we can do with more restrictions on speech” sort of viewpoint. This is exposed elsewhere on this page where you (seem to) advocate for restrictions on speech that contains vague threats. (Your “I’m interested as to where you would draw the line.” comment below.)

              Or perhaps I just misunderstood you there.

            • Posted June 20, 2017 at 6:05 pm | Permalink

              “The idea that not granting the trademark to the Slants is a restriction of their freedom of speech is bogus.”

              But it is. Sure the government wasn’t trying to silence them in the sense that the band might find themselves in trouble for calling themselves The Slants. The government was denying a protection afforded them elsewhere in the Constitution and it was the reasons for denying them that was a violation of speech rights. The government is constrained in more than just holding off enforcement on speech itself.

              I do see what you’re trying to say but the ways in which government can impinge on speech rights are varied – it isn’t restricted to just trying to shut them up.

              • Barney
                Posted June 20, 2017 at 6:14 pm | Permalink

                It’s a restriction of profit, not a restriction of speech. This is an acknowledgement that making money is held to be fundamental to the American way of life.

                I wonder if this could be used to argue that the government should not interest itself in better education, since that restricts the right of bunko artists to profit from misleading people?

              • Posted June 20, 2017 at 6:58 pm | Permalink

                “It’s a restriction of profit, not a restriction of speech.”

                It is both. I really don’t see why you and Jeremy are dancing around the point. Of course trademarks are about commercial interests. That’s precisely why those protections are in the Constitution (trademarks are covered in the Commerce Clause).

                The Slants sought trademark protection but SCOTUS found (correctly) that the government violated the 1st Amendment because it based it’s decision on the content of the name, not on any statuary restrictions on trademarks.

                That is the very definition of a restriction of speech. Restricting speech isn’t just threatening people with government action; it can also be using speech to deny government protection afforded to others.

              • Barney
                Posted June 21, 2017 at 3:25 am | Permalink

                I don’t think reminding the people here this is about commerce is “dancing around” it; it’s putting it central. So many comments here are just wittering on about freedom of speech when this is about the freedom to profit from speech. They even stretched to denouncing the “lust for power” of Congress for passing the Lanham Act.

                And yes, it was a statuary restriction on trademarks; the statute, from 70 years ago, has now been found to be unconstitutional.

            • eric
              Posted June 20, 2017 at 8:08 pm | Permalink

              A “first to apply” trademark system is not a content-based restriction on freedom of speech. It’s still a restriction, but AIUI the court’s objection here was in allowing the USPTO to enforce a content restriction. They were not objecting to the patent and trademark system per se.

        • Ken Kukec
          Posted June 20, 2017 at 4:12 pm | Permalink

          You’re probably being denied the freedom of speech to call yourselves “The Rolling Stones,” too. Not sure of your point, unless you’re advocating the abrogation of trademark law (or maybe all of intellectual property?).

    • Posted June 20, 2017 at 1:13 pm | Permalink

      Your friend is wrong.

      Copyright does not restrict anyone from using words that are copyrighted. How in the world would any music writer refer to the band if they couldn’t use their name? Copyright restricts others from profiting from their use (or otherwise claiming ownership) – and that only within the context of the copyright.

      I can call you an Amazon without fear of a call from Bezo’s lawyers, though you may be offended (or not). Just so, a company could make a movie called “Attack of the Amazons” without fear of Bezo’s lawyers. If, however, I try to sell you something and call my company “Amazone” (for example), I might expect to hear from those attorneys.

      • Posted June 20, 2017 at 1:15 pm | Permalink

        I meant trademark above, but it applies (differently in legal some ways) to copyright as well.

      • Posted June 20, 2017 at 1:53 pm | Permalink

        This might fall under the use-mention distinction. I can talk about The Beatles but I can’t use their name.

        You can’t copyrite the use of existing words but what about invented ones?

        There was a court case recently over whether anyone can use the Klingon language for commercial purposes. It looks like that part of Paramount’s case has been dropped.

        https://torrentfreak.com/klingon-language-copyright-battle-ends-for-now-170113/

        I suppose the same issue would arise if you wrote a play in Na’avi or Dothraki.

  18. GBJames
    Posted June 20, 2017 at 1:00 pm | Permalink

    “Should be prosecuted. I think we can all agree to that?”

    No we can’t. Unless it is used in a context of direct threat to a person it operates as a form of political expression. Not a form I have anything but hostility for, but still that is what it is.

    • GBJames
      Posted June 20, 2017 at 1:01 pm | Permalink

      Hmm… that was supposed to be in response to Nicky at #16.

      • nicky
        Posted June 20, 2017 at 1:23 pm | Permalink

        Got that (that it was meant as a response to me), but I think it is a direct threat of murder. “Kill those who mock Islam” is pretty specific, meseems. Or is it necessary to put a specific person’s name on it? If so, I think the law falls dismally short there.

        • GBJames
          Posted June 20, 2017 at 1:37 pm | Permalink

          No. “Kill Nicky over there” (pointing at Nicky in the corner) would qualify. Not the generic “Kill infidels”. The latter is not a specific incitement.

          • Posted June 20, 2017 at 2:04 pm | Permalink

            I’m interested as to where you would draw the line.

            “Kill nicky” refers to a specific person. What about “kill nicky and GBJames”. That’s two people. Does that pass as OK because it refers to two people? What about “kill everybody who posted on this thread before 19:02 20th June 2017”? Or “kill all WEIT followers” Or “kill all infidels”? In all of these cases, I have referenced a specific person or a specific set of people.

            • Posted June 20, 2017 at 2:04 pm | Permalink

              That should be 19:02 UTC.

            • GBJames
              Posted June 20, 2017 at 2:55 pm | Permalink

              You know, Jeremy, this isn’t that complicated. It isn’t where I draw the line. Courts have weighed in already.

              From Wikipedia:

              The Supreme Court has held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action”.[1][2] In Brandenburg v. Ohio (1969), the Court struck down a criminal conviction of a Ku Klux Klan group for “advocating … violence … as a means of accomplishing political reform” because their statements at a rally did not express an immediate, or imminent intent to do violence.[3] This rule amended a previous decision of the Court, in Schenck v. United States (1919), which simply decided that a “clear and present danger” could justify a congressional rule limiting speech. The primary distinction is that the latter test does not criminalize “mere advocacy”.[4]

              • GBJames
                Posted June 20, 2017 at 2:56 pm | Permalink

                Oops… A bit of html fail, there.

  19. infiniteimprobabilit
    Posted June 20, 2017 at 2:58 pm | Permalink

    Leaving aside free speech/hate speech issues, this is all wrong. How can you patent a name or a word?

    Copyright, yes. Trademark it, yes. But patenting should involve some new and novel process.

    I would think it should also be invalidated by ‘prior art’ – if anyone has ever previously been called a ‘slant’, then it isn’t original and can’t be patented.

    Oh, I think I’m going to patent the letter ‘A’. And charge everybody else to use it.

    cr

    • Barney
      Posted June 20, 2017 at 3:24 pm | Permalink

      The case is all about trademarks. The Professor misspoke when he wrote ‘patent’.

      • infiniteimprobabilit
        Posted June 20, 2017 at 3:30 pm | Permalink

        I’m quite relieved by that. Even if it did cause me to go off on a misguided rant. 😉

        cr

  20. Posted June 21, 2017 at 10:27 am | Permalink

    When I share the article, it still contains the word “not” in the title, apparently because that was how the original version (or URL) was created. Changing the title didn’t fix this.

    A heads up if you share it to Facebook, it will still say “hate speech is not free speech.”

  21. openargs
    Posted June 22, 2017 at 11:32 am | Permalink

    FYI, your quote is from the section of the opinion that only garnered four votes, and is therefore not binding.


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