Justices Strike Down Law Banning Disparaging Trademarks

The law at issue in both cases denies federal trademark protection to messages that may disparage people, living or dead, along with “institutions, beliefs or national symbols.”

Four justices said the law could not withstand even the fairly relaxed judicial scrutiny that the Supreme Court applies to commercial speech. Those justices rejected the two government interests that the law was said to advance: protecting disadvantaged groups from demeaning messages and the orderly flow of commerce.

The First Amendment protects offensive speech, Justice Samuel A. Alito Jr. wrote for this group of four justices. “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate,’ ” he wrote, quoting a classic 1929 dissent from Justice Oliver Wendell Holmes Jr.

Justice Alito added that the law’s disparagement clause was far too broad. “It is not an anti-discrimination clause; it is a happy-talk clause,” he wrote.

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Stephen G. Breyer joined that part of Justice Alito’s opinion.

Four other justices would have struck down the law using the more searching First Amendment scrutiny that applies to viewpoint discrimination.

“The danger of viewpoint discrimination,” Justice Anthony M. Kennedy wrote, “is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing.”

“To permit viewpoint discrimination in this context is to permit Government censorship,” Justice Kennedy wrote.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Kennedy’s opinion.

Justice Neil M….

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