Trademarks, Hate Speech, and Solving a Puzzle of Viewpoint Bias
Supreme Court Review, 2019, Forthcoming
48 Pages Posted: 5 Mar 2020
Date Written: March 4, 2020
In this article, I argue that in the seemingly straightforward ruling in Iancu v Brunetti, striking down a provision of the law governing trademarks, the Court revealed a significant clarification of the limits of the doctrine of viewpoint discrimination.
In free speech doctrine, the Court is unanimous in condemning viewpoint discrimination, but its contours remain “slippery” because viewpoint bias is rarely a game changer in a given case. One enduring puzzle is whether a limit on the mode or manner of communication – a ban on racial epithets, for example – embodies viewpoint discrimination. This question has been unresolved for almost thirty years, ever since the Court’s murky opinion in R.A.V. v St. Paul struck down, as viewpoint based, an ordinance aimed at fighting words that “arouse[d] anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” The Court was not clear whether the ordinance was viewpoint biased because it regulated one side of a public debate or limited a mode or manner of debate for both sides. The difference between these two possible readings matters: if limits on modes or manners of speech are deemed to be viewpoint discrimination, then it may be virtually impossible to enact, for example, bans on racial epithets at a public university.
But Brunetti clarified matters considerably. The Court struck down the provisions of the Lanham Act prohibiting the registration of “immoral” and “scandalous” marks as viewpoint biased. The conflict between Justice Elena Kagan’s opinion for the Court and the lead opposition opinion written by Justice Sonia Sotomayor illuminated an important area of agreement that appears to control a majority of the Court. That agreement is this: that worries about viewpoint bias do not ordinary come into play when the government regulates the mode and manner of communication as opposed to the ideas conveyed.
Such a principle has a number of implications. Perhaps the most important is that R.A.V. is less significant in First Amendment doctrine than it has seemed for thirty years. Also, some kinds of speech codes could survive First Amendment challenge, as long as they apply in certain fora and are aimed at the mode and manner of communication rather than the ideas expressed. Another implication would be that it would be possible for Congress to rewrite the now-defunct provisions of the Lanham Act to survive First Amendment challenge and also satisfy much of Congress’s original goals.
Keywords: free speech, viewpoint discrimination, content discrimination, fighting words, speech codes, trademark, Lanham Act, Supreme Court
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