Supreme Court Vacates Stay of Injunction Precluding Effectiveness of Texas’ Law Addressing Perceived Social Media Censorship

Net Choice, et al. v. Paxton, Attorney General of Texas, No. 21A720, 596 U.S. ____. Order granting emergency petition entered May 31, 2022.

Texas legislation prohibiting content-based deplatforming or deprioritizing of social media posts remains subject to an injunction precluding its effect pending determination of the merits of challenges of the constitutionality of the statute. The Supreme Court has vacated the Fifth Circuit’s stay of a district court injunction precluding the effect of the law. 

Justice Alito has dissented from the grant of the petition, stressing that the questions presented by the case invite the Court’s review, particularly as those questions do not fit squarely within First Amendment precedent.  Neither public event, publication, public marketplace, or common carrier provisions anticipate the advent of and market power of social media platforms.  

The dissenting justice notes that the state perceives impossible incongruity between the social media platforms’ position that they may enjoy immunities under Section 230 of the Communications Decency Act of 1996 for publication of others’ content while at the same time enjoying First Amendment protection for refusing to publish that content.

Justice Alito observes that the likelihood of success on the merits must be demonstrated as to all aspects of the injunctive relief provided, but this is not the case with respect to the disclosure requirements of the Texas law concerning social media platforms’ publication standards, which are to be reviewed under less stringent standards for constitutional review of commercial speech.

Of importance is that the Texas law applies only prospectively, a circumstance which, in a certain light, renders injunctive relief pending review somewhat superfluous, as no action against any social media company has yet occurred and any action remains open to constitutional challenge if and when it occurs. 

The novelty of the questions presented, while inviting exploration, does not justify federal interference in state sovereignty, which is the result where, as here, the Supreme Court serves as a source of preclearance authority.

Justice Alito’s dissent has been joined by Justices Thomas and Gorsuch.  Justice Kagan would deny the emergency petition, but has neither joined the dissent nor written her own opinion.

Netchoice, LLC v. Paxton, 21A720, 596 U.S. ____ , May 31, 2022

A Grand Old (Private) Flag at Boston City Hall: Supreme Court Clarifies Establishment and Speech Clause Interests

Shurtleff v. City of Boston, No. 20-1800, 595 U.S.      (May 2, 2022)

Private Flag Permitting at Boston’s City Hall Plaza.  Three flagpoles are situated on the public plaza surrounding Boston City Hall.  These flagpoles ordinarily display the flag of the United States and the flag of the Commonwealth of Massachusetts.  At times the flag of the City of Boston is displayed but the third flagpole is available, upon request and approval, for display of commemorative flags.

Until 2017 the City of Boston approved every application for a permit that was presented to it but stopped short of granting a permit to fly a flag showing a religious symbol where the name of the flag but not the flag itself, mentioned a religious faith.  

A Boston City Official thought granting a permit for that flag would offend the Establishment Clause of the First Amendment of the U.S. Constitution.  Litigation in the U.S. District Court for the District of Massachusetts and the U.S. Court of Appeals culminated in favor of the City of Boston, and review in the United States Supreme Court was then sought and obtained. 

Constitutional Purposes and Constraints.  Broadly stated, the Constitution of the United States constrains the government from acting against the interests of the people of the United States.   The Establishment Clause checks the power of the state by forbidding the government from adopting a faith as the government’s own, coercing the adoption of a faith, endorsing a faith while excluding others, and other errors.  The Free Speech Clause requires that where the government opens up a space for public participation, the government may not exclude or inhibit otherwise lawful speech, including the expression of religious views, in that space without committing the error of “viewpoint discrimination.”   

Clauses on a Collision Course, or So It Sometimes Seems.  Although in error, it is easy to see how an individual such as the decision-making official in Boston could think that permitting the presence of a flag with a religious symbol would be in error.  However, the Establishment Clause applies only to government action.  Were the space at City Hall and the flagpole to be considered a public forum for non-government speakers, the Establishment Clause would not preclude, and the Free Speed Clause would require, that all views, including religious views, be permitted. 

Justice Breyer’s Judicial Opening Farewell.  Justice Breyer wrote the Court’s opinion which unanimously held that the petitioner had been subjected to viewpoint discrimination, requiring that the judgment of the First Circuit be reversed.  Perhaps as a parting gift to the nation and the law, the Justice began with clarity and thereafter applied his inquisitive style of jurisprudence.  

Government speech and government created forums must be distinguished, he wrote.  A government created forum must be open to all without restriction based on viewpoint.  Government speech is not so constrained, as the government must be able to provides views and opinions in order to function as a government.  

This is all very clear until it is not.  In this case, had the city adopted the flag permitting and display process as its own, the city would be engaging in government speech and would not, in the ordinary case, be subject to the First Amendment.  On review it did not appear that the city was engaged in government speech, and thus its refusal to permit the petitioner’s flag was viewpoint discrimination. 

Meaningful distinctions between government and private speech become blurred where private speech occurs at the government’s invitation, where it is not always clear whether the government has transformed private speech into government speech, or whether the government has simply created a forum for private speech. 

Today the Court has opined that a ‘holistic’ approach must be undertaken to determine whether “the government intends to speak for itself or to regulate private expression.”  Slip. Op. at 6.  Introducing its approach, the Court offered:

Our review is not mechanical; it is driven by a case’s context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.

Slip Op. at 2. 

In this case, the Court found evidence favoring the government except that the city had invited all participants and had approved all applications except the one in issue in this case, which was denied because the name of the flag, not the flag itself, signified a religion.  The city’s self-perception that the program was government speech stands in contrast to its practice of unrestrained permitting except in this case. 

Boston’s position was further weakened, the Court opined, because Boston had no written policies or guidance concerning flag permits, a situation which Boston might choose to rectify in the future. 

A brief reiteration:  Justice Kavanaugh concurs.  This case arose, Justice Kavanaugh has noted, because a city official misunderstood the Establishment Clause. Speech principles, not the Establishment Clause, forbid the exclusion of religious speech in public activity.  All views, secular or not, must be treated equally in public programs, benefits, facilities and related settings and activities. 

The end may be all right, but the means, not so much.  Justice Alito, joined by Justices Thomas and Gorsuch, concurs in the judgment and criticizes the controlling opinion.   Justice Alito disfavors the application of facts such as history, public perception and government control as guidance in analysis. The core question is whether the government is speaking or regulating private opinion.  Enlisting government speech analysis in viewpoint discrimination cases may cause more distortion than clarity. 

Such distortion is dangerous, Justice Alito writes, as the government may claim to have adopted speech as its own to conceal favoritism among speakers.  The critical question is who the speaker is.  The Court errs, in Justice Alito’s view, in asserting that precedent has established a settled methodology to be applied to government speech analysis.  No such test can be found.  The totality of the circumstances, not limited by key factors, governs such cases and review of particular factors is helpful only to the extent that it aids in the identification of the speaker.  

Government control is significant in identifying who a speaker is because speech over which the government exercises no control is not government speech, yet the concept of government control is central to analyzing censorship.   Requiring or withholding government control of private speech can be censorship but granting permission to speak does not transform speech into government speech.  

…neither “control” nor “final approval authority” can in itself distinguish government speech from censorship of private speech, and analyzing that factor in isolation from speaker identity flattens the distinction between government speech and speech tolerated by the censor. And it is not as though “actively” exercising control over the “nature and content” of private expression makes a difference, as the Court suggests, ibid. Censorship is not made constitutional by aggressive and direct application. 

Alito concurrence in judgment, Slip. Op. 4

While history may aid in illustrating what was considered in the past, it cannot serve to dictate results in a particular matter.  An overemphasis on tradition in this case favors the government simply because governments traditionally use flags for government messaging, but this cannot be of the consequence the Court affords it where the government activity in question is unorthodox, not traditional. 

A focus on public perception yields no good result where it cannot be presumed that the public can know, from casual observation,  who is speaking, where fear of misperception of private speech or government speech could promote exclusion of views, and where the government may always make plain to the public that the views expressed are not its own. 

The issue is not simply one of fashioning an analysis, Justice Alito stresses.  Risks of error pervade the Court’s “factored” test, but the greatest risk is the risk of aggressive application of the concept of government controls in service of censorship. 

Finally, creating a three-factor test but applying only one factor to direct the outcome highlights the weakness of such an approach.

Justice Alito would analyze whether the government is purposefully presenting its own message through its own agent without abridging private speech.  There should be no confusion about government speech where private citizens are ‘deputized’ to speak on the government’s behalf or where a private entity cedes its platforms for government speech. 

The Unbearable Persistence of Lemon.  Justices Gorsuch and Thomas concur in the judgment, but join to point to the errors not rectified but instead introduced into Establishment Clause cases by the Lemon test, itself a factor analysis which only serve to underscore how aptly the test is named.

Reliance on original meanings rather than on the much-loathed Lemon approach would return the law and the courts which administer the law to clarity after decades of great confusion:

“The thread running through these [Establishment Clause] cases derives directly from the historical hallmarks of an establishment of religion—government control over religion offends the Constitution, but treating a church on par with secular entities and other churches does not.   

Gorsuch concurrence in judgment, Slip Op. at 12. (citation omitted.)

20-1800_Shurtleff v. Boston, 595 U.S. (May 2, 2022)

Having Twice Failed to Uproot the Stay that Keeps the CDC Eviction Moratorium in Place, Realtors Association Again Seeks Emergency Relief in the U.S. Supreme Court

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21A23.  Application to vacate stay submitted on August 20, 2021.  Government to respond by noon on August 23, 2021.

Applicants Alabama Association of Realtors have filed in the United States Supreme Court an application for emergency relief which would vacate the U.S. District Court’s May 14, 2021 stay of its May 5th order vacating the Center for Disease Control (CDC) moratorium on evictions.

The emergency application was submitted the same day that the United States Court of Appeals for the District of Columbia Circuit denied relief from the stay for the second time.

Applicants argue that not only has the United States District Court for the District of Columbia found the CDC eviction moratoria to be unconstitutional, but also that the executive branch has admitted this to be true, but has nonetheless encouraged litigation as a delay tactic in the hope of distributing billions in rental assistance monies through the states.  

When the initial series of eviction orders lapsed on July 31, 2021, Congress failed to specifically authorize the CDC to exercise the power that it has, which legislative action Associate Justice Kavanaugh opined would be needed going forward when he denied review only because the government promised the Court that the eviction orders would end on July 31, 2021.  As this was clearly not the case, relief is now warranted, the applicants submit.

Permitting the stay to remain in place would undermine confidence in the federal government internally and in the eyes of the nation, as it would allow legislative inaction to promote admittedly unconstitutional administrative action and let the Court know its views are of no consequence.

The ongoing presence of a federal moratorium represents both an assault on the integrity of the system of government itself but also a tectonic shift in the exercise of powers affecting the rights and interests of property owners.  The eviction moratorium has been promulgated by a sovereign which is immune from suit and which will resist takings actions, provides benefits to those who are admittedly judgement-proof, and criminalizes landlords’ actions to protect their property through eviction proceedings.  Any financial benefit, in the form of rental assistance, has been lost in bogs of state bureaucracies charged with distributing the funds.

The realtors association argues that the same factors that warranted emergency relief that were present before are present now and then some.  Any reliance on ‘changed conditions’ manifested by the Delta variant of the Covid-19 virus is misplaced, as the government was aware of the Delta variant when it permitted the CDC order to lapse on July 31, 2021, and the harms predicted from the variant have failed to materialize.

The applicants note that the idea that money damages will make landlords whole is not supported in law or fact.  The Administrative Procedures Act does not permit an award of money damages, and the costs of compliance with an unlawful regulatory regimen are incapable of being fairly compensated. 


Alabama Association of Realtors, et al. v. HHS, No. 21A23 Application for Emergency Relief August 20, 2021

Nixxing Ipse Dixit: U.S. Supreme Court Finds New York’s Covid-Related Tenant Financial Hardship Self-Certification Provisions Deny Landlords Due Process

Chrysafis, et al., v. Marks, No. 21A8.  Order granting injunctive relief pending disposition in Second Circuit or of Petition for Certiorari entered August 12, 2021.  

New York’s pandemic related tenant protections preclude eviction if a tenant self-certifies to financial hardship.  Landlords may not challenge such self-certifications.  This, the U.S. Supreme Court has concluded, impairs landlords’ due process interests, as established law has observed that “no man may be a judge in his own case.”  Order of August 12, 2021, citing In re Murchison, 349 U. S. 133, 136 (1952).  

By order entered August 12, 2021,  the Court has enjoined the preclusive effect of tenant self-certifications pending further judicial activity but has left undisturbed the capacity of courts to make assessments of financial hardship in eviction proceedings.  Such assessments could permit receipt of pandemic-related financial aid and could preclude eviction.

Justice Breyer, with Justices Sotomayor and  Kagan,  has dissented, opining that there is no basis in the law for the U.S. Supreme Court to reach the constitutionality of a state law measure which has not been enjoined by a state court, where there has been no determination in the Second Circuit Court of Appeals, where the emergency eviction measures will lapse of their own accord at the end of August, where there is available $2 billion dollars in federal rental assistance, and where landlords are not denied, but only delayed, a hearing, a circumstance which does not violate constitutional due process principles.  

Justice Breyer’s dissent notes that there is no First Amendment compelled speech issue presented by the state’s requirement that factual information be provided to tenants. 

While it is recognized that emergency measures are not wholly insulated from judicial review, it is Justice Breyer’s sense that in this circumstance, where any right to relief is not clearly established, where tenants may face displacement earlier than anticipated, and where the state must craft and administer many scientifically and medically complex emergency measures, the public interest would favor deference to the state.  

The U.S. Supreme Court’s decision has been presented to the federal court in the District of Columbia for consideration in connection with the court’s anticipated ruling on a challenge to the new federal eviction moratorium.

U.S. Supreme Court docket showing entry of order:

21A8 U.S. Supreme Court Docket

Order entered August 12, 2021

CHRYSAFIS . v. MARKS, U.S. Suprerme Court Order with Dissent August 12 2021

Submission to U.S. District Court for the District of Columbia:

Alabama Association of Realtors v. HHS, 20-03377, Notice of Supplemental Authority

Alabama Association of Realtors v. HHS, 20-03377, Exhbit A.

If I Knew You Were Coming I’d Have Baked A Cake. Or Maybe Not.

Masterpiece Cake Shop, Ltd. and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins, U.S. Supreme Court Docket No. 16-111.  Petition for Certiorari granted June 26, 2017.  Petitioners’ Brief and Joint Appendix due August 31, 2017.  Respondents’ merits briefs due October 23, 2017.

In the upcoming term the Supreme Court will review a dramatic clash featuring constitutional promises, the Court’s own precedents, and state civil rights statutes, administrative bodies, and courts.  The Court’s docket frames the question for decision to be whether applying Colorado’s public accommodation law to compel Masterpiece Cake Shop and Phillips to create expression that violates Phillips sincerely held religious believes violates the Free Speech or Free Exercise Clauses of the First Amendment.

What Has Happened So Far?

Craig and Mullins, two potential customers of Masterpiece Cake Shop, Ltd., is owned and operated by Phillips and his spouse, filed administrative charges concerning the Colorado baker for sexual orientation discrimination when Phillips declined, on religious grounds, to create a cake celebrating their same-sex marriage.

The Colorado Commission Against Discrimination agreed with Craig and Mullins and ordered Phillips to create wedding cakes for same-sex marriages, to train his staff to do so, and to report to the state when any order was declined.

The Colorado Court of Appeals found cake creation to be conduct unprotected by the Free Speech clause. Moreover, no Free Exercise violation could e found in requiring compliance with neutral and generally applicable anti-discrimination laws.

The Colorado Supreme Court declined further review, and the petition to the U.S. Supreme Court for certiorari ensued.

What Can Be Expected at the Supreme Court?

Phillips will argue that his custom cakes are art, that artistic creation is speech, and that the state cannot compel speech.  Phillips has asked the Court to review the limits of the speech/conduct dichotomy, in which the former is protected by the First Amendment, while the latter is not.  Phillips underscores the importance of this examination where, he asserts, the federal circuit courts of appeal are in conflict concerning the meaning of “expression.”  Finally, Phillips observes that his Free Exercise Rights are jeopardized where others are not required to produce customer cakes but he faces punishment if he, on the basis of his religious beliefs, will not.

Respondents Craig and Mullins will argue that there should not be any Free Exercise exemption from the antidiscrimination statutes that are both generally applicable and of great social policy import to the country. Moreover, the First Amendment Speech Clause holds no promise of freedom to discriminate.  In fact, they will say, the First Amendment’s speech protections are not in issue at all, as baking a cake is constitutionally unprotected conduct, not speech.

The Colorado Civil Rights Commission, as administrative and adjudicative body concerning the state’s public accommodation law, will argue that these statutes embody the highest of compelling state interests and, as such, are insulated from First Amendment exceptions. Moreover, the state agency will argue, Phillips’ compelled speech argument is not supported within the record.

The civil rights administrative body observes that Phillips refused to create a custom wedding cake was categorical, on the basis of their status, and was made without reference to any “compelled” design features.  Philips’ outright refusal violated the public accommodations law without reference to any process which might involve First Amendment protections.

The conflicts among federal courts that the petitioners perceive are illusory, the Colorado agency asserts, and this is true whether the uniform applicability of anti-discrimination laws or the meaning of “expression” is in issue.

Finally, the state agency argues, the Supreme Court’s precedents concerning compelled speech are not in issue where the record finds that conduct, not expressive speech, is in issue.  Adherence to general non-discrimination laws is distinguishable from any state requirement to profess the any government message.

Is That All?

At its core this case invites the Supreme Court to establish a “pecking order” among the freedoms guaranteed by the First Amendment and those promised by the civil rights laws.  If that seems a tall order, that is because, without a doubt, it is.  Ideally all facets of such significant laws would work together to accommodate the others, but advocacy does not proceed in an ideal world.

It would not be surprising if the case were to command a good bit of the Court’s and the public’s attention.  With respondents’ briefs not due until the third week of October, and with phalanxes of amici anticipated, and with the potential for reply memoranda to be submitted, it may not be until 2018 that oral argument is held, with no opinion to be forthcoming until the end of the term.   This last is but prognostication.  As with all things in the current legal realm, anything is possible.

Certiorari Submissions:

16-111 Cert. Petition Masterpiece Cake _Phillips

16-111-Brief Opposing Certiorari Mullins _Craig

16-111-Brief Opposing Certiorari CCRC

16-111 Cert. Reply Masterpiece Cake _ Phillips

20170512 Letter re. Supplemental Authority









There May Be Some Discomfort: The Open Expression of Ideas Prohibits Suppression of Those Thought Unpleasant, Supreme Court Reiterates

Federal registration of trademarks is not government speech excepted from First Amendment protections and prohibitions.  Lanham Act provision prohibiting registration of “disparaging” marks suppresses speech and is unconstitutional under any standard of review.  Matel v. Tam, No. 15-1293 (S. Ct.) June 19, 2017.

Trademarks are words or symbols — or a combination of the two — that permit identification of particular products or services in the marketplace.  These creations of common law now enjoy federal protections when registered with the United States Patent and Trademark Office (USPTO).  Until last month, the USPTO was permitted to deny registration to trademarks its analysts deemed disparaging to persons, institutions, beliefs or national symbols.  Lanham Act, 15 U.S.C. Section 1052(a) (the “disparagement clause”).  

The Supreme Court has found the law to suppress speech in violation of the Free Speech Clause of the First Amendment.   Registration may not be denied because of a perception that some may take offense.

You Can Get There from Here:  Justices Reach the Same Ends By Differing Means

As is true of much current First Amendment jurisprudence, the justices have taken many routes to the same ends, joining (or not) in separate sections of separate opinions in support of their ultimate, agreed-upon conclusion.  A summary of the justices’ alliances on the case issues is provided at the end of this article.

Having given thorough consideration to the idea that trademarks might be “government speech,” and therefore not subject to First Amendment constraints, and having rejected that notion, Justice Alito and several colleagues concluded that the disparagement clause of the Lanham Act could not survive even the more liberal tests of constitutional acceptability that attach to commercial speech.  Justice Kennedy and several colleagues concluded that the disparagement clause portends potent speech suppression requiring rigorous scrutiny.  Finding it impossible that the clause could stand up to such scrutiny, Justices Kennedy and colleagues opined that no further analyses were needed.

What Went Before

Plaintiff Tam, lead singer of the Asian American rock band “The Slants,” sought but was denied federal registration for the band’s name, which, he asserted, was a wry reappropriation of a racial slur.  The USPTO denied registration pursuant to the statutory provision noted above, which precludes registration of disparaging trademarks.  

The Federal Circuit Court of Appeals found the disparagement clause to be facially unconstitutional as it promotes viewpoint based discrimination.  As the disparagement clause regulates expressive content, it is not commercial speech, cannot satisfy strict scrutiny, and would not survive even the intermediate scrutiny that applies in commercial cases. Moreover, the federal registration process is not a government subsidy nor will registration cause a trademark to become government speech and therefore immune from constitutional protections and constraints.   

Several justices of the Federal Circuit Court of Appeals wrote separately, with one concurrence finding the disparagement clause unconstitutionally vague, and the other concurrence validating the government subsidy argument, but finding the disparagement clause unconstitutional as applied to the non-disparaging “core expression” of “The Slants.”  One dissenting justice found the disparagement clause and its application constitutional while another found trademarks to be commercial speech property subject to and surviving intermediate scrutiny in advancing the government’s interest in the flow of commerce.

Justice Alito Considers the Scope of the Disparagement Clause and the Government Speech Arguments, and Finds Them Lacking

As noted above, the federal Lanham Act confers particular benefits upon registered trademarks but precludes registration when any mark is found to disparage groups or persons living or dead without concern for the good intentions of the party seeking registration.  

Tam did not raise in prior proceedings his argument that the disparagement clause does not apply to racial or ethnic groups.  While ordinarily the court would simply set previously overlooked matters aside, the government’s position that a decision on the scope of the clause would dispose of the case, rendering an interpretation of the constitution unnecessary, a boon from the Supreme Court’s perspective.  Nonetheless, the constitutional avoidance suggested by the government concerning Tam’s argument could not be embraced:  the plain language of the disparagement clause refers to persons, who by definition are the members of racial and ethnic groups, and groups are within the specific terms of the disparagement clause.  

Federal Trademark Provisions as Government Speech Unrestricted by the First Amendment

The Court rejected the government’s argument that no First AMendment protections attach to federal trademarks because they are government speech, are subsidized by the government, or are part of a “government program.”    Such an expansive reading of “government speech”  — which would turn the registration system into a endorsement systems — would mean that the government would also be able to suppress disfavored speech.  To do so would read the Free Speech Clause out of the constitution.  Trademarks and trademark registration are easily distinguishable from the sponsored and controlled speech present in automobile license plate programs, in government advertising programs, and in the use of public property for monuments.

Not only would the speech suppression potential of adopting the trademark registration system as “government speech” portend both sponsorship and censorship, it would decimate copyright protection if each copyright were to be seen as federal speech.

The government subsidy argument is more nuanced but equally unimpressive, the court noted  While the government may not deny a benefit where to do so would imping on protected speech, the government need not fund activities if it does not wish to do so. Tricky as these needles may be to thread, there is no subsidy argument to be made where trademark registration involves no payment to the registrants.  That the government pays the costs of the registration program is of no moment, as the same non-monetary benefit attaches to nearly all government endeavors.

The Court declined the government’s invitation to create a new “government program” exception to the First Amendment, which would expand exponentially constitutional exceptions inherent in the government speech and subsidy cases.  This is particularly true where the government draws its support from cases at a remove from the trademark system involving the collection of union dues.  

The Tam case is more properly analogized to the limited public forum cases.  When the government creates a limited public forum for private speech, some restrictions may be imposed, but the government may not banish speech based on a speaker’s viewpoint.  As the very reason for the disparagement clause’s existence is to preclude expression of disfavored points of view, and as it is fundamental to speech freedoms that the suppression of disfavored or offensive views is constitutionally impermissible, the disparagement clause cannot withstand First Amendment review.

The Proper Focus of Review

Justice Alito concluded that Tam’s arguments concerning expressive speech and the proper standard of review need not be addressed because the disparagement clause could not withstand the more relaxed review attaching to commercial speech, which requires that any commercial speech restriction be narrowly drawn to serve a substantial government interest  Restriction may extend no further than the interest being served.

The “substantial interest” in avoiding demeaning underserved groups or promoting tolerance cannot be seen as other than preventing speech that offends, which “strikes at the heart of the First Amendment.”  While demeaning speech is hateful, free speech principles protect the expression of the thought that is hated.  

If the disparagement clause is said to enhance the orderly flow of commerce — which disparaging speech is believed to impede — the disparagement clause has not been narrowly drawn to support that end, applying as it does to “any” trademark disparaging “any” person, group or institution, sweeping far more widely than necessary.

Concurring (in Part) in the End, But Not Necessarily the Means

Justice Kennedy, with Justices Ginsburg, Sotomayor, and Kagan, concurred in part and in the judgment.  Justice Kennedy observed that the court correctly perceives the viewpoint discrimination inherent in the disparagement clause and likewise correctly perceives that the clause cannot withstand strict scrutiny.  This inability to withstand strict scrutiny is sufficient to address the case and renders further review unnecessary.

It is anathema to the First Amendment for the government to suppress the content of speech and it is particularly odious to single out particular content — viewpoints — for suppression.

It is no answer that the exclusion of “disparagement” applies to any trademark that offends.  Defining suppression first by content and then singling out a particular type of content is viewpoint based suppression.  Suppression of all views enhances rather than diminishes the error.  

A focus on audience impact rather than speaker intention — good or bad — fares no better in salvaging the disparagement clause, for the result remains the same not matter whether speaker or listener are considered.  The government may not inhibit the presentation of ideas for public purview.  Moreover, government hostility to a speaker’s point of view is no less hostile where the lens is focused on the listener rather than the speaker.

Government Suppression of Speech is the Overarching Concern, Not Whether Speech is Commercial

Rather than distinguishing “commercial” speech from other forms of speech and permitting a more relaxed review of the former, the concurring justices opined that heightened scrutiny is not context dependent and must be applied whenever the government intervenes because it disagrees with a message.

A Solitary Voice Urges Judicial Restraint

Justice Thomas, writing separately and singly, has expressed his concern that the court did not need to address questions not raised below.  Justice Thomas emphasized his view that strict scrutiny is required whenever the government seeks to restrict speech in order to suppress ideas, without reference to commercial context.  But because the disparagement clause could not survive even lesser scrutiny, Justice Thomas joined in Justice Alito’s conclusion.

15-1293 Matel v Tam

The Lineup:  How the Justices Were Allied on Case Issues:

lee v tam judicial lineup

Matel v. Tam Opinion: How the Justices Line Up


Part One: General Principles Governing Trademark and Posture of the Case

Justices Alito, Roberts, Kennedy, Ginsburg, Breyer, Thomas, and Kagan

Part Two: Whose Interests are Captured in the Disparagement Clause of the Lanham Act, 15 U.S.C. Section 1052(a)

Justices Alito, Roberts, Kennedy, Ginsburg, Breyer, Kagan and Sotomayor

Part Three A: Trademarks are Not Government Speech Exempt from Constitutional Constraints

Justices Alito, Roberts, Kennedy, Ginsburg, Breyer, Thomas, Kagain and Sotomayor

Part Three B: Trademarks are Not Government Subsidized Speech

Justices Alito, Roberts, Thomas and Breyer

Part Three C: Trademark Registration Does Not Merit Creation of a New Legal Doctrine for Government Programs

Justices Alito, Roberts, Thomas and Breyer

Part IV: The Disparagement Clause Cannot Survive Even More Lenient “Commercial Speech” Review

Justices Alito, Roberts, Thomas and Breyer

The First Concurrence in the Judgment: Strict Scrutiny Applies in All Speech Supression without Reference to Context of Commercial or Non-Commercial Speech

Justices Kennedy, Ginsburg, Sotomayor and Kagan

The Second Concurrence in the Judgment: The Court Ought Not Review Issues Not Before It. Strict Scrutiny Should Apply, But the Outcome Here Is Correct

Justice Thomas