Free Speech Uber Alles

The late Supreme Court Justice Hugo Black was famous for a very literal interpretation of the First Amendment — that the language in the Amendment providing that “Congress shall make no law” meant that Congress should make no law.  While the current Supreme Court does not go quite as far as Justice Black, a consistent theme of the Roberts Court has been — with the occasional exception that proves the rule — a very broad interpretation of the First Amendment to strike down any law in which the government either directly (by banning it) or indirectly (by favoring other speech) regulates speech.  Simply put, if there is a free speech component to your case, the expectation has to be that the government will lose if the Supreme Court grants review and the only question is exactly how the justices will line-up in the decision.

This week saw the last two free speech opinions of the term (there is a remaining free exercise case that could incorporate some of the recent free speech cases into that sphere of law) — both issued on Monday.  In both cases, the ultimate decision was unanimous, but there was a liberal-conservative split in the reasoning.

The more “traditional” case was Packingham v. North Carolina.  This case involved a North Carolina statute that barred registered sex offenders from accessing commercial social networking website if juveniles could also join that site.  (Under the very broad definition used by North Carolina, this site might qualify.)  All eight justices (the case was heard in February before Justice Gorsuch joined the Court) agreed that the statute was overbroad and not narrowly tailored due to the sheer number of sites covered by the statute that were not primarily designed to facilitate the type of one-on-one real world interaction that the Court saw as the legitimate purpose behind the statute.  The main disagreement in the case — between Justice Kennedy writing for the “liberal” majority and Justice Alito writing for the three conservative justices — was how to characterize the internet.  The majority described the internet as the functional equivalent of public streets and parks.  (In free speech law, streets and parks are considered “public forums” and the government’s ability to regulate is very limited — some content-neutral “time, place, and manner” restrictions like requiring parade permits are allowed, but such restrictions are closely examined to determine that they are not being used to prevent speech.)  From a factual point of view, this analysis is partly accurate.  The internet itself is arguably like a street, but the individual websites are more like private homes and offices.  The dissent — borrowing from language in the majority about the need to be cautious in applying existing legal categories to the internet to avoid inhibiting the speed at which the internet is changing — thought that it was not necessary to categorize the internet as a public forum.  (Because both opinions recognize that preventing crime is a legitimate governmental interest potentially supporting restrictions on sex offenders, there are likely to be future cases considering whether other restrictions — whether imposed on sex offenders on a case-by-case basis or statutes that apply to certain categories of sex offenders across the board — are narrowly tailored.)

The other case — Matal v. Tam — involved the Supreme Court’s growing line of “indirect” restrictions on speech.  The issue in this case — as discussed on prior occasions — was the law permitting the patent office to decline to grant trademark recognition if the item for which trademark recognition was sought “disparaged” any person.  In this case, the “Slants” — an Asian-American rock band — sought and had been denied trademark protection for that name.  Again, all eight justices agreed that the law was unconstitutional — rejecting all arguments that the statute did not actually bar or restrict speech but merely governed a governmental benefit that the government choose to give to certain “favored” speakers.  (While trademark recognition makes it easier for the trademark owner to bring an infringement action, it is not absolutely necessary that the government officially recognize and register a trademark for there to be a legally-protected “common law” trademark.)  As in Packingham, the justices split on some of the reasoning.   Seven of the justices (Justice Thomas did not join this part of the opinion) held that, although the statute only expressly barred trademarks that disparaged persons, the patent office correctly interpreted the law as also barring trademarks that disparaged groups of people (such as derogatory names for certain racial groups).  All eight justices agreed that the trademarks was not governmental speech and, because registration did not endorse the content of the trademark, registration was not governmental speech either.  However, the justices disagreed about how to analyze the rest of the case.

Justice Alito (writing on behalf of himself, the other two conservative justices, and Justice Breyer) rejected the claim that trademark registration was a form of subsidy (holding that the subsidy cases only applied to cash subsidies) or a government program.  Treating trademarks as a “limited public forum” (think public comment session at a local government meeting), the “conservative” opinion noted that regulations limiting permissible speech in such forums had to be viewpoint neutral and the bar on disparaging comments is not viewpoint neutral.   Finally, analyzing the regulation under the relatively relaxed standard that applies to commercial speech, the regulation is still not viewpoint neutral and thus fails the intermediate scrutiny because (like the regulation in Packingham) it is not sufficiently narrowly drawn to match any proposed legitimate governmental interest.

Justice Kennedy (writing on behalf of himself and the remaining three liberal justices) would have applied heightened scrutiny to the regulation (requiring a compelling interest and narrow tailoring rather than the substantial interest required by intermediate scrutiny) because it constituted viewpoint discrimination.  As with the four justices who applied intermediate scrutiny, these four justices found that this regulation failed heightened scrutiny.

While none of the opinions address the rest of the registration statute, the statute also bars registration of trademarks that are “immoral,” “deceptive,” or “scandalous.”  While the bar on deceptive trademarks probably would withstand scrutiny, the bars on “immoral” and “scandalous” trademarks will probably also be struck down in future cases unless a court very narrowly interprets those terms  (For example, by equating immoral with obscene).

The decision in Packingham is the less significant of the two.  When the case was granted, the law looked in trouble and the only question was whether some of the justices might create a “criminal” exception to free speech.  Tam raised more significant questions because it was less clear how to characterize the impact of the regulation and whether it actually restricted speech.  The immediate impact of Tam is that efforts to pressure the Washington Redskins to change their name by denying trademark registration  to that name are gone.  The case also falls into a line of cases that restrict regulations on hate speech unless that speech is associated with a criminal intent (i.e. directed at intimidating or harming a specific individual).   It also represents another link in a line of cases that sees the denial of a governmental benefit based on viewpoint discrimination (except when the viewpoint is closely connected to the purpose of the benefit) as a violation of the applicant’s free speech rights.

Looking at things longer term, while Justice Gorsuch did not participate in either case, the Roberts Court is unlikely to be changing its approach to the First Amendment.  While we still have three April cases left, Justice Gorsuch appears to be lining up with Justice Alito and Justice Thomas more than Justice Kennedy and Chief Justice Roberts.  It is unlikely that this Court is going to walk back from Citizens United.  More significantly, just before Justice Scalia died, the Supreme Court heard a case asking the justices to overturn a prior decision requiring public employees in closed shop states to pay fees to unions to cover the expenses of collective bargaining on behalf of those employees.  The decision in that case was 4-4.  Anti-worker activists have several cases in the  pipeline, and the conservative majority is likely to get another case raising that issue to the Supreme Court soon.  Given the gradual shift among unionized workers from those working in the private sector to those working in the public sector, such a decision would cripple the union movement.  And given the role that the union movement plays in supporting progressive candidates, such a decision would leave the Republican Party and the Koch brothers with a monopoly in campaign spending.

Ten years from now, workers and progressives are going to realize that the 2016 election was a missed opportunity to bring the Supreme Court back to the center.  With Justice Gorsuch on the court, conservatives will continue to use the First Amendment as a battering ram to crush any restrictions on the wealthy buying elections.  While, thanks to Justice Kennedy and Chief Justice Roberts, we might win individual cases on other issues, campaign finance reform is dead for the foreseeable future.

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