“[T]he public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The Supreme Court wrote that in 1969 in a flag burning case, Street v. New York [394 U. S. 576, 592]. This week, we learned a little bit more about what those words mean.
In the flag case, the defendant not only burned the flag, he disparaged it. He was upset by the shooting of black civil rights leader James Meredith by a white gunman. The defendant in the flag case said, “If they let that happen to Meredith, we don't need an American flag.” The Court ruled that a state interest in protecting the sensibilities of passers-by who might be shocked by such words was not sufficient to justify a curb on free speech.
This week, the Supreme Court unanimously struck down a provision of federal law allowing the government to deny trademark registration for marks that people might find disparaging [Matal v. Tam]. The Asian rock band “The Slants” tried to trademark its name, but was refused because ‘slants’ is an offensive racial slur. In invalidating the government’s refusal to register, the Supreme Court made it clear that racially offensive speech is protected under the First Amendment. In his opinion for the Court, Justice Alito wrote:
In short, there is no ‘hate speech’ exception to the First Amendment. There’s a ‘fighting words’ exception and an ‘incitement to violence’ exception, but no ‘hate speech exception’ per se. Sorry, snowflakes.
Many have pointed out that the government will likely have to reverse its cancellation of the Washington Redskins trademark because of the outcome in The Slants case. Can you imagine a team called the Cleveland Crackers or the Jacksonville Jigaboos? ‘Redskins’ is overtly racist, but that’s what our First Amendment protects. The alternative is to shut down the marketplace of ideas and have the government prescribe the bounds of what is offensive and what is acceptable. Trust me, you don’t want to go down that road.
There’s another situation lurking, and I predict it will eventually end up in the Supreme Court. In his opinion in The Slants case, Justice Alito referred to speech that demeans on the basis of gender, indicating that such speech is protected. Canada just passed a law jailing and fining people who fail to refer to transgender people by their pronoun of choice. There are municipalities in the U.S. that have adopted similar transgender speech codes. The Slants case indicates that such speech codes are unconstitutional in the U.S. but, hey, this is today’s politicized Supreme Court. It can turn night into day and day into night anytime it wants to. Transgender speech codes should fall, but.… Litigation? Anything can happen.
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