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High court's new speech cases have impact here

“[L]iberty means…the right to tell

people what they do not want to hear.”

George Orwell

Shortly before its summer recess, the U.S. Supreme Court in late June issued a pair of concurrent rulings concerning the right of freedom of speech under the First Amendment. Although neither arose in Minnesota, they are of particular interest and importance here.

Both cases were significant, as are nearly all opinions of the high court, since the tribunal heard and decided only 70 cases with written rulings this year, less than 1 percent of the civil and criminal lawsuits that sought review.

One of these rulings deservedly got ample public glare, perhaps even more than merited, while the other received much less attention than it warranted. Both shared a number of characteristics. The both turned on central freedom of speech jurisprudential principles; both were unanimously decided, as were a remarkably high 57 percent of the tribunal’s cases this year, the greatest rate of consensus in 70 years, except for 2013, which was slightly higher; and both are likely to have significant effect in Minnesota, along with the rest of the country.

‘Slant’ suit

The former, Matal v. Tam, 2017 U.S. LEXIS 3872 (June 19, 2017), struck down a provision of the federal Lanham Act, 15 U.S.C. 1052(a), forbidding registration of any name or mark that the Patent and Trademark Office determines does “disparage…or bring into contempt or disrepute” any individual, group, or organization as well as “beliefs” and “national symbols.” The challenge was brought by an Asian-American rock music band known as “Slants,” a reference to the derogatory phrase “slant-eyes” for Asian-Americans. The band said it wanted to “reclaim” the term for Asian-Americans and exert “ownership” over it.

The musicians sued and prevailed before the Federal Circuit Court of Appeals after trademark officials refused to accept its name for legally protected intellectual property. The justices, in a ruling written by Justice Samuel Alito, reasoned that the proscription constitutes impermissible “viewpoint” censorship that violates the “bedrock First Amendment principle” forbidding impediments on speech “on the ground that it expresses ideas that offend” others. In his majority opinion, Alito rejected treating the Lanham provision as either government or commercial speech, both of which permit greater regulatory or statutory restrictions.

Extension of those doctrines would have “dangerous” implications that could “muffle the expression of disfavored viewpoints.” Allowing the government to ban offensive trademarks would impermissible turn the Lanham Act into a “happy-talk clause,” steering clear of controversial ideas or concepts.

The decision not only was greeted enthusiastically by First Amendment devotees, but it drew a proverbial sigh of relief from the Federal Circuit in D.C., which had its six prior intellectual property rulings overturned. There were some qualifications and limitations on the breadth of the ruling uttered by a number of concurrences, but the decision makes clear the court’s aversion to content-based regulatory measures or statutes.

‘Redskins’ reprieve

The “Slants” case garnered lots of attention — and accompanying acclaim — because of its popular culture subject matter. But it also was noteworthy because of its seemingly fatal implication for the Trademark Office’s cancellation in 2014 on Lanham Act grounds of six trademarks related to the nickname “Redskins” for the professional football team representing the nation’s capital. The high court refused last fall to review a lower court ruling upholding that administrative determination at the same time as it took on the “Slants” case. Pro-Football, Inc. v. Blackhorse, 112 F. Supp. 3d (E.D. Va. 2015). The 4th Circuit stayed adjudication of the case pending the outcome of the “Slants” matter. No 15-1874 (4th Cir. Aug. 6, 2015).
But the outcome in the rock-band case may give the team a reprieve and now doom the decision disallowing the “Redskins” appellation.

That issue has particular resonance here.

A number of leaders of the Native American community, along with many supporters, have vigorously opposed use of nicknames by sports teams they deem to denigrate them, although there are questions regarding the breadth of that aversion among the community. As a result, school boards throughout the state have removed and replaced offensive Native American-related appellations from their squads, which has also occurred in other jurisdictions and at both public and private educational institutions.
Additionally, the Native American objectors, represented by a Minneapolis law firm, obtained the ruling from the Trademark office canceling the trademarks of the “Redskins” name and logo although that determination now is of dubious validity in light of the outcome of the “Slants” suit.

The contretemps has not been lost on the media, including some in Minnesota, that have struggled for years how to report the names of athletic teams that have versions of Native American nicknames, particularly professional baseball and football teams.

The Slants case also represents a rebuke to the Trademark Office, which gained everlasting renown years ago when its commissioner, Charles Duell, observed, at the dawn of the 20th century, that “Everything that can be invented has been invented.”

Internet issues

The other high court free speech decision, though, may have even more widespread significance. It involved an invention a century later that Duell — and many other soothsayers, overlooked: the internet, which was first experimented with by the U.S. military in the late 1960’s, not invented by Al Gore, before blossoming at the end of the last millennium.

The case, Packingham v. North Carolina, 562 S. Ct. 443 (June 19, 2017), concerned a state law that barred registered sex offenders from using most social media that they know are accessible to minors. The high court, as in the “Slants” case, issued a sweeping decision invalidating the measure as an unlawful restriction on freedom of expression.

The appeal was brought by a 21-year-old college student in North Carolina who was deemed a sex offender because of illegal sex with a 13-year-old girl. He was charged with felonious violation of the stay-off-the-internet law when he made an innocuous posting of exhilaration (“Thank God!”) over beating an inconsequential traffic citation on a Facebook site accessible to children. He was one of more than one thousand offenders to be prosecuted under the measure in the past eight years among the 20,000 registered sex deviants in the state, four times the number of registered offenders in Minnesota, which has a population half as large as the state. In North Carolina, one of every 500 people is a registered sex offender, compared to about one per thousand Minnesotans.

The decision, written by Justice Anthony Kennedy, noted the ever-increasing and “protean” nature of the internet, pointing to the 1.8 billion Facebook users, and thrice the population on the North American continent.

In his characteristically fulsome rhetoric, Justice Kennedy authored an ode to the internet, which he deemed has created “revolution of historic proportions… [whose] full dimensions and vast potential” are unknown.

The social media that compose the “Cyber Age” allow individuals to participate in a “wide array of protected First Amendment activity” and has become the “most important places (in a spatial sense) for the exchange of views” that cannot be improperly made off-limits to wrongdoers. Recognizing these features, the ruling equates the internet with traditional expressive forums like parks and other public places where freedom of speech is allowed to be largely untrammeled. That portion of the decision suggests that restraints on internet communications must be sparse or virtually nonexistent to pass constitutional muster.

The implication drew some concern from three members of the court, led by Alito, who has emerged as one of the strongest First Amendment defenders on the high court, which has taken on what Harvard Law School professor Noah Feldman describes as a “free speech absolutism” hue. One notable deviation was Alito’s dissent in Snyder v. Phillips, 562 U.S. 443 (2011), in which he alone disagreed with the eight other jurists who overturned a multimillion-dollar tort verdict against an a virulent anti-gay group who staged vocal demonstrations at military funerals in objecting to the liberalization of policies concerning gays in the armed services, decrying that the First Amendment is not a license to engage in a “vicious verbal assault.”

Although Alito and the other two, Chief Justice John Roberts and Justice Clarence Thomas, voted with the majority in Packingham, they joined in a concurring opinion that lamented the “undisciplined dicta” of Justice Kennedy’s opinion and its far-reaching implications that would seem to bar any efforts to restrict social media communications by criminal offenders.

It remains to be seen how the ruling will affect conditions imposed on them or, for that matter, commonly accepted limitations on use of social media to engage in offensive or harassing communications. These types of restrictions are frequently resorted to by judges in Minnesota and elsewhere in sentencing of criminals, including sex offenders, as well as in marital disputes and other interpersonal spats under the Domestic Abuse No Contact Order statute, Minn. Stat. § 629.75 or the broader Harassment Restraining Order law, Minn. Stat. § 609.748.Future restrictions must be narrowly limited to specific content bearing implications for the safety of the subjects or recipients of the proscribed communications.

The unanimity, notwithstanding the concurrences, of these end-of-term freedom-of-speech decisions by the Supreme Court reflects their broad acceptance across the ideological spectrum. But they also are likely to be heard from again as these rulings and their underlying reasonings play out in the courts in Minnesota and around the country.


Some athletic teams retaining Native American names

  • Cleveland Indians baseball team
  • Atlanta Braves baseball team
  • Chicago Black Hawks hockey squad
  • Florida State University Seminoles
  • University of Illinois Fighting Illini

This article was originally published in Minnesota Lawyer.