The Supreme Court ruled unanimously Monday that hate speech is protected by the First Amendment. The case, Matal v. Tam, centered on whether the government could deny the trademark request of a rock band named “The Slants” on the basis that the name could be insulting to Asian Americans. On this point, the court ruled 8-0 against the government. Simon Tam, lead singer of The Slants, will be allowed his patent.
The judges did not side with Tam because “The Slants” really isn’t that offensive, as these things go. Rather, the Supreme Court agreed on two more important, broader principles. First, a patent is private speech, not government speech, and is thus protected by the First Amendment’s Free Speech clause. Second, as Justice Alito put it in his opinion, “The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'”
This is an important protection. If the First Amendment does not protect offensive speech, what good is it? After all, it is precisely those controversial and potentially offensive forms of expression that are at risk of being censored. And do we really want the overawing central government in charge of determining which speech is acceptable and allowed, and which is offensive and excluded?
As the writer Brendan O’Neill once told the Oxford Union, “Pretty much every leap forward in history, pretty much every freedom we enjoy is a product of individuals having given offence, having offended against the orthodoxies of their age.” Indeed, what is now “offensive” may become enlightened in the future. Living under the tyranny of the present, we are not competent to distinguish what is truly offensive from what is simply an affront to our prejudices. The power to censor offensive speech can quickly become the power to shield the majority’s prejudices and orthodoxies from criticism.
Justice Kennedy understands this well. He writes:
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.
That this sentiment is unanimously shared tells us that the First Amendment is still strong. When Justice Gorsuch is able to contribute his opinions (he did not hear this case argued and so did not participate), it should only become more secure. Though free speech may come under assault from campus radicals and the Democratic Party, our Supreme Court understands that viewpoint discrimination is illegitimate. One can only hope that they will extend this protection to religious organizations, when competing principles come into play.
In commenting on this ruling, Eugene Volokh, the First Amendment scholar and Washington Post blogger, remarks that “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.” If he is right, more good news is on the way.
Elliot Kaufman (@esterlingk) is a contributor to the Washington Examiner’s Beltway Confidential Blog. He is a student at Stanford University.
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