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First Amendment: Two recent Supreme Court decisions are of particular interest and importance in Minnesota

The unanimity of two freedom-of-speech decisions by the Supreme Court reflects their broad acceptance across the ideological spectrum.

Shortly before its summer recess, the U. S. Supreme Court unanimously issued a pair of concurrent rulings concerning the right of freedom of speech under the First Amendment. Although neither arose in Minnesota, the pair are of particular interest and importance here.

Marshall H. Tanick
MinnPost photo by Jana Freiband
Marshall H. Tanick

Both cases were significant, as are nearly all opinions of the high court, since the tribunal hears and decides only about 70 cases a year, less than 1 percent of the civil and criminal lawsuits it is requested to adjudicate annually. One of these rulings deservedly got ample public glare, perhaps even more than merited, while the other received much less attention than it warranted.

Matal v. Tam

The former, Matal v. Tam [PDF], struck down a provision of the federal trademark law forbidding registration of any disparaging name or mark that reflects "contempt or disrepute" for an individual, group, or organization. The challenge was brought by an Asian-American rock music band known as "Slants," a reference to the derogatory phrase "slant-eyes" for Asian-Americans, after the Trademark and Patent Office refused to accept its name for legally protected intellectual property. The justices, in a ruling written by Justice Samuel Alito, reasoned that the proscription constitutes impermissible "viewpoint" censorship.

The ruling garnered lots of attention — and accompanying acclaim — because of its popular-culture subject matter. But it also was noteworthy because of its seemingly fatal implication for the Trademark Office's declination of the nickname "Redskins" for the professional football team representing the nation's capital. The high court refused last fall to review that ruling at the same time as it took on the "Slants" case, but the outcome in the rock-band case may doom the decision disallowing the "Redskins" appellation.

That issue has particular resonance here. A number of leaders of the Native American community, along with many supporters, have vigorously opposed use of nicknames by sports teams they deem to denigrate them, although there are questions regarding the breadth of that aversion among rank-and-file Native Americans. As a result, school boards throughout the state have removed and replaced offensive Native American-related appellations from their squads, which has also occurred in other jurisdictions and at both public and private educational institutions. 

Additionally, the Native American objectors, represented by a Minneapolis law firm, obtained the ruling from the Trademark office canceling the trademark of the "Redskins" name and logo, although that determination now is of dubious validity in light of the outcome of the "Slants" suit.

The contretemps has not been lost on the media, including some in Minnesota, that have struggled for years over how to report the names of athletic teams that have versions of Native American nicknames, particularly professional baseball and football teams.

Packingham v. North Carolina

The other high court free-speech decision, though, may have even more widespread significance. The case, Packingham v. North Carolina, concerned a state law that barred registered sex offenders from using any social media that is accessible to children. The Supreme Court, as in the "Slants" case, invalidated the measure as an unlawful restriction on freedom of expression.

In so doing, the decision authored by Justice Anthony Kennedy noted the ever-increasing and "protean" nature of the internet, pointing out that the number of Facebook users is thrice the population of the North American continent. Recognizing these features, the ruling equates the internet with traditional expressive forums like parks and other public places where freedom of speech is allowed to be largely untrammeled. That portion of the decision is suggestive that restraints on internet communications must be sparse or virtually nonexistent to pass constitutional muster.

The implication drew some concern from three members of the court, led by Justice Joseph Alito, who has emerged as one of the strongest First Amendment defenders on the high court, which has taken on what Harvard Law School professor Noah Feldman describes as a "free speech absolutism" hue. Alito's centrality to this approach was exemplified by a solitary dissent he authored a few years ago supporting the right of anti-gay-rights extremists to protest vocally at military burial services in objection to the expansion of gays and lesbians in the armed services.

Although Alito and the other two, Chief Justice John Roberts and Justice Clarence Thomas, voted with the majority, they joined in a concurring opinion that lamented the far-reaching implications of the decision that would seem to bar any efforts to restrict social media communications by criminal offenders.

It remains to be seen how the ruling will affect conditions imposed on them or, for that matter, commonly accepted limitations on use of social media to engage in offensive or harassing communications. These types of restrictions are frequently resorted to by judges in Minnesota, and elsewhere in sentencing of criminal wrongdoers, including sex offenders, as well as in marital disputes and other inter-personal spats.

The unanimity of these two freedom-of-speech decisions by the Supreme Court reflects their broad acceptance across the ideological spectrum. But they also are likely to be heard from again as these rulings and their underlying reasonings play out in the courts in Minnesota and around the country.

Marshall H. Tanick is a constitutional law attorney with the Twin Cities law firm of Hellmuth & Johnson.

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