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Freedom of Speech Revisited in Matal v. Tam

The U.S. Supreme Court recently affirmed the fundamental principal of freedom of speech by unanimous decision (absent new Justice Gorsuch) on June 19, 2017. This case might not be so significant if it had been decided in a different time in our history. Frankly, the case is simply an extension of 200 years of jurisprudence in which the fundamental principal of freedom of speech has been upheld against a myriad of challenges.

What makes this case so significant at this time is the shift in popular freedom of speech paradigms that we have observed in the last decade or so. That paradigm shift that is occurring in our popular culture is at odds with the notion of freedom of speech, and it comes from a surprising source – the paradigm shift is coming from the progressive left.

Progressive, or at least liberal, culture has traditionally been a champion of freedom of speech. Anyone who lived through the sixties can remember the protest marches, flag burning, bra burning and sit-in demonstrations of which the fundamental right to freedom of speech was a centerpiece. Free speech was often the very subject and purpose of those protests and demonstrations.

Liberals and progressives, traditionally, are the battering rams against the establishment, and the establishment is usually on the conservative edge of the spectrum, protecting tradition and the way things are against change and the way things people want them to be. In that ideological, cultural, political, and sociological battle field, freedom of speech is the sword and the shield of the progressive and liberal camp. Without the protection of freedom of speech, the establishment might stamp out progressive and liberal voices, putting a conservative clamp on the attempt to bring about change.

The irony in these current times cannot be understated, but the change is understandable.

Many of the battlefronts in the sixties and the seventies have shifted. The progressives and liberals of 1960’s and 1970’s have taken much of the high ground they were assaulting in those days. Those battles for women’s rights, civil rights, a women’s right to control her own body, the right to be free from discrimination on the basis of gender, religion, ethnicity, race, and more recently, age, disability, and sexual orientation, have been fought and won.

Colleges and universities have always been fertile ground for progressive and liberal thought, then and now, except that today most colleges and universities have shut out most of the conservative voice. Conservative ideas and conservative speakers are shouted down, assaulted and driven off campus in many of the colleges and universities around the country. Conservative faculty are hard to find, and the ones who remain are hunkered down, silenced by progressive faculty and students both who find little redeeming value in that conservative voice.

The idea of freedom of speech has seemed to sour in the liberal and progressive mindset of today. While the “marketplace of ideas” was championed as a liberal and progressive ideal in years past, the victors of those past battles won are no longer as enamored with the idea of an open marketplace of ideas and freedom of speech. The left now accuses the right of “hiding” behind freedom of speech. Some speech has even be relabeled as “hate”, suggesting that some speech is not only unworthy of protection, but it should be eradicated based on its content.

That fundamental idea freedom of speech that protected and even charged and animated the liberal and progressive cause not too many decades ago, has now lost its luster to the liberal and progressive cause today. The shine has come off this monument to a free society as popular sentiment and opinion has shifted in favor of liberal and progressive ideals. As those ideals have become popular and accepted, the principal of freedom of speech is no longer necessary to protect the right to express those ideals. No longer needing the protection of the First Amendment to advance those ideals, a willingness to shelve the First Amendment to the racks of history books seems to have taken hold.

The freedom of speech, however, is not fundamentally a liberal or conservative ideal. It is and must be content neutral. It protects the right of the underdog to be heard. It protects unpopular speech, and even speech that we might find offensive. That is the whole point, after all.

Popular speech never needs to be protected. Popular speech will always be allowed. Freedom of speech doesn’t protect popular speech, therefore; it only protects unpopular speech.

Without that protection, we are not truly a free society. The very freedom that has allowed a liberal and progressive orientation to attain a position of popularity such that it may very well now be “the establishment” also protects the right of others to be heard. That is the nature of fundamental freedoms that are written into our Constitution and protected for all people. Those protections don’t change with the shifts in popular opinion.

In that context, the Supreme Court decision in Matal v. Tam, decided on June 19, 2017, is of paramount importance. The facts are fairly simple. Simon Tam is the lead singer of a rock group called “The Slants”. He tried to register a trademark of the name, but the trademark registration was rejected on the basis that it disparaged and brought into contempt or disrepute persons of Asian heritage.

Never mind that Simon Tam is, himself, Asian, and his purpose in choosing the name was to “reclaim” it and, “drain its denigrating force as a derogatory term for Asian persons”.

The “Disparagement Clause” was written into the law on trademarks so the statutory scheme, itself, was at issue. The trademark office was simply applying the law as it was written, but Tam challenged the law under the First Amendment as being unconstitutional.

In the unanimous decision, the Supreme Court struck down the disparagement clause of the trademark statute. The court held that a trademark cannot be rejected on the basis of the viewpoint that it appears to express. This is government censorship and strikes at the very heart of the First Amendment right to freedom of speech.

Significantly, more liberal justices on the court were the most condemning of the statutory rule that, effectively, censored speech. Justice Kennedy, joined by Justice Ginsberg, Justice Sotomayor and Justice Kagan, emphasized that, “Government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys”. To that end, it does not matter that the speech may be offensive; if speech is being regulated on the basis of the content and viewpoint being expressed, government regulation is forbidden. Period.

Although the case provided some novel arguments in support of the government censorship, the opinion is hardly a surprise. Government regulation of speech based on its content is the very heart and soul of the First Amendment. The court was not only unanimous, but forceful, in its defense of freedom of speech, protecting the “metaphorical marketplace of ideas” against any notion that the marketplace should be closed off, except for the narrowest of reasons.

The lesson in this, perhaps, is that we are reminded that popular speech has no need for protection. Only unpopular speech needs protection, and offensive speech needs protection most of all. In the cycle of cultural and societal norms that have evolved from the 1960’s to the 2010’s, those norms have changed dramatically, but the First Amendment protects the unpopular speech of 2017 even as the unpopular speech of 1967 is now popular and accepted.

It isn’t that the content of the speech is what needs protecting; it’s that the government does not get to determine the content of speech that is entitled to protection in a free society. Content laden regulations are antithetical to a free society. Even hate speech must be protected if we are to be truly free.

If freedom of speech had not been protected in the 1960’s and 1970’s, the liberal and progressive ideals that have taken hold today (and have even become the popular/establishment position (perhaps)) may not have ever advanced in those early skirmishes. The very freedom that protected the right of people at that time to express those ideas cannot be undermined today, now that those ideas have taken hold are now accepted and popular.

The fundamental principal of freedom of speech is not an ideological notion. Indeed, it cannot be if we are to remain a truly free society. In the protection of freedom of speech, justice must be blind. It must protect all speech or none is truly protected.