Today the Supreme Court in a unanimous 8-0 decision (Neil Gorsuch was not on the court when the case was heard) struck down arguments that ‘hate speech’ is not protected by the 1st Amendment in a case called Matal v. Tam.
The case concerned a band called The Slants that was denied copyright protection because their name was deemed offensive:
In Matal, the government refused to register “The Slants” as a band’s trademark, on the ground that the name might be seen as demeaning to Asian Americans. The government wasn’t trying to forbid the band from using the mark; it was just denying it certain protections that trademarks get against unauthorized use by third parties. But even in this sort of program, the court held, viewpoint discrimination — including against allegedly racially offensive viewpoints — is unconstitutional.
Justice Anthony Kennedy wrote for four justices:
A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
In a concurring opinion by Samuel Alito, joined by three others, Alito wrote:
[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. 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.”
That last line is a quotation from Oliver Wendell Holmes, who wrote it in a dissenting opinion in 1928:
Freedom from the thought that we hate is never an easy sell, but without it, we do not have true liberty.
As friend of the Freedom Hut Charles Cooke put it:
8-0. The First Amendment is a beautiful thing. https://t.co/WulHsxSiVm
— Charles C. W. Cooke (@charlescwcooke) June 19, 2017