The most fundamental of all free-speech principles took center stage earlier this week when the U.S. Supreme Court unanimously ruled 8-0 in Matal v. Tam that a federal trademark law prohibiting disparaging trademarks violated the First Amendment. The fundamental principle is that the government should not engage in viewpoint discrimination.
This principle trumped another concept in free-speech law – the government speech doctrine. Under this doctrine, the government has its own free-speech interests and can further its own viewpoints without having to support other viewpoints.
Thus, the question for the Supreme Court was did the government discriminate against viewpoint when it denied trademark registration to musician Simon Tam when he sought to register the mark of his music group The Slants, or was the federal trademark program simply a form of government speech. Stated another way, was the federal law an avenue to censor private speech based on viewpoint or merely a form of government speech.
The question was outcome determinative, because rarely do viewpoint discriminatory laws pass First Amendment review – unless they are considered government speech.
In his opinion for the Court, Justice Samuel Alito explained the law was viewpoint discriminatory and that trademarks are not government speech. Alito explained the law discriminated on the basis of viewpoint, because “giving offense is a viewpoint.” In other words, the law allowed positive speech, but disallowed what it perceived as negative speech. That is viewpoint discrimination.
Justice Anthony Kennedy emphasized the viewpoint discrimination principle in his concurring opinion. “At its most basic, the test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed,” he wrote. In this case, Kennedy explained the government denied a trademark because the term was too offensive. “That is the essence of viewpoint discrimination.”
On the government-speech doctrine, Alito rejected the idea that federal trademarks are government speech. When people see a trademark, they principally associate the expression with the holder of the mark, not the government. Justice Alito explained: “Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine.”
The Court’s decision emphasized the importance of combating viewpoint discrimination and over-expanding the government speech doctrine.