Thursday, June 22, 2017

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



The following article appeared in the Washington Post on June 19th

By Eugene Volokh 

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. 
The Slants

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

(Justice Neil Gorsuch wasn’t on the court when the case was argued, so only eight justices participated.)



Rich Lowry writes of the Supreme Court decision:


“In a passage that should be pasted into the student handbook of every college and read aloud by progressives who have convinced themselves that hate speech is not free speech, the court held, “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.’”

Lowry continues:

The litigation hinged on a provision of federal trademark law referred to as the “disparagement clause.” This clause forbids registration for any trademark “which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”


But the disparagement clause was the wedge that activists were trying to use to force the Washington Redskins to change the NFL team’s name (the team has been fighting the cancellation of its trademark in court). And every effort by the speech police to spread their operations from college campuses to the wider society must be resisted.

Don’t for one moment think that this decision will mitigate against left-wing bloodlust on college campuses. “Hate speech” will still be defined as anything the left disagrees with and those who dare utter the truth use hate speech will continue to be accosted/beaten/intimidated/disciplined/expelled.   Ed.

 

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