ICYMI: In Matal v. Tam (2017), the Supreme Court ruled 8-0 that “hate speech” is constitutionally protected free speech, not an exception to the First Amendment.

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The Landmark Decision

On June 19, 2017, the United States Supreme Court delivered a remarkable 8-0 unanimous decision in Matal v. Tam that fundamentally reaffirmed one of the most important principles of American free speech law: there is no “hate speech” exception to the First Amendment, and the government cannot ban expression merely because it is offensive.

The unanimity of this decision is particularly striking given the Court’s frequent divisions on contentious issues. Justice Gorsuch did not participate in the decision, but every other justice—spanning the ideological spectrum—agreed on the core constitutional principle.

The case centered on Simon Tam, the founder and lead singer of the Asian-American dance-rock band “The Slants.” Tam chose this name to “reclaim” and “take ownership” of Asian stereotypes, seeking to drain the denigrating force of the racial slur. When Tam applied to register “THE SLANTS” as a federal trademark, the U.S. Patent and Trademark Office denied his application under the Lanham Act’s “disparagement clause,” which prohibited registration of trademarks that may “disparage” persons, institutions, beliefs, or national symbols.

The Government’s Failed Arguments

The Court systematically rejected every argument the government advanced to defend the disparagement clause:

Government Speech Doctrine: The government argued that trademarks become government speech upon registration, making them exempt from First Amendment scrutiny. The Court firmly rejected this, noting that accepting this argument “would constitute a huge and dangerous extension of the government-speech doctrine” that could affect copyright and other registration systems.

Subsidy Theory: The government claimed trademark registration was a government subsidy program allowing content restrictions. The Court noted that unlike true subsidies, applicants pay fees to the government ($225-$600 for registration), and “just about every government service requires the expenditure of government funds.”

Anti-Discrimination Interest: The government argued the clause prevented discrimination in commerce. Justice Alito dismissed this, noting the clause “reaches any trademark that disparages any person, group, or institution” including marks like “Down with racists” or “Down with sexists.” He concluded: “It is not an anti-discrimination clause; it is a happy-talk clause.”

As Justice Alito powerfully summarized: “The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment.”

The Court’s Reasoning

The Supreme Court’s unanimous agreement was remarkable in both its breadth and consistency. All three opinions—the main opinion by Justice Alito, the concurrence by Justice Kennedy (joined by Ginsburg, Sotomayor, and Kagan), and the brief concurrence by Justice Thomas—reached the same fundamental conclusion through slightly different analytical paths.

Justice Alito, writing for the Court, delivered one of the most powerful defenses of free speech in recent Supreme Court history. In language that has become iconic in First Amendment jurisprudence, he wrote: “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.’”

Justice Kennedy’s concurrence emphasized that viewpoint discrimination “is an egregious form of content discrimination, which is presumptively unconstitutional,” and powerfully concluded: “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.”

Even Justice Thomas, known for his textualist approach, agreed that the disparagement clause was unconstitutional, writing separately only to note his preference for strict scrutiny in all commercial speech cases.

The Court’s analysis rested on several key constitutional principles:

1. Viewpoint Discrimination is Prohibited

All justices agreed that the disparagement clause constituted impermissible viewpoint discrimination. As Justice Kennedy explained, “the disparagement clause identifies the relevant subject as ‘persons, living or dead, institutions, beliefs, or national symbols,’ and within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the Government’s disapproval of a subset of messages it finds offensive, the essence of viewpoint discrimination.”

The Court rejected the government’s argument that the law was viewpoint neutral because it applied equally to all groups. Justice Kennedy noted this “misses the point” because “to prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so.”

2. Trademarks Are Private Speech

The Court unanimously rejected the government’s contention that trademarks are government speech exempt from First Amendment scrutiny. Justice Alito observed that if trademarks were government speech, “the Federal Government is babbling prodigiously and incoherently” given the contradictory messages on registered marks like “Abolish Abortion” and “I Stand With Planned Parenthood.”

The Court emphasized that “the Federal Government does not dream up these marks, and it does not edit marks submitted for registration” and that registration is mandatory for marks meeting viewpoint-neutral requirements.

3. Commercial Speech Still Protected from Viewpoint Discrimination

Justice Thomas wrote separately to emphasize his view that strict scrutiny should apply to all truthful commercial speech restrictions, but noted that the disparagement clause was unconstitutional even under the more lenient Central Hudson test. Justice Kennedy stressed that “commercial speech is no exception” to heightened scrutiny for viewpoint-based restrictions.

The Broader First Amendment Context

The Matal v. Tam decision did not create new law but rather reaffirmed decades of Supreme Court precedent establishing that “hate speech” is not a legal concept in First Amendment jurisprudence, and the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment.

Historical Foundation

This principle traces back to Justice Oliver Wendell Holmes’ famous 1929 dissent in United States v. Schwimmer, where he wrote about protecting “freedom for the thought that we hate”. The Court has consistently built upon this foundation in subsequent cases:

  • Snyder v. Phelps (2011): The Court protected in an 8-1 decision the Westboro Baptist Church’s right to protest military funerals with signs reading “Thank God for Dead Soldiers,” with Chief Justice Roberts writing that “we cannot react to that pain by punishing the speaker”- Brandenburg v. Ohio (1969): The Court established that speech can only be restricted if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”- Texas v. Johnson (1989): The Court held that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”

Limited Exceptions

While the First Amendment’s protection is not absolute, the Supreme Court has identified only narrow exceptions including speech that constitutes unlawful incitement, true threats, intimidation, or discriminatory harassment. Categories of speech that receive lesser or no protection include obscenity, fraud, child pornography, speech integral to illegal conduct, and commercial speech such as advertising.

Importantly, “hate speech is not a general exception to First Amendment protection”, and these carefully-defined exceptions are interpreted very narrowly by courts.

Practical Implications

The Matal v. Tam decision has far-reaching implications beyond trademark law:

University Speech Codes

In the 1980s and 1990s, more than 350 public universities adopted “speech codes” regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they are frequently overturned as violations of the First Amendment.

Government Programs and Subsidies

The decision clarifies that the government cannot engage in viewpoint discrimination even when providing benefits or operating registration systems. This principle extends to other areas where the government might claim special authority to restrict speech.

The Washington Redskins Case

The decision directly impacted Pro-Football, Inc. v. Blackhorse, which challenged the “Redskins” trademark as disparaging to Native Americans. That case was vacated after Tam, effectively protecting the team’s trademark rights.

The Democratic Response to Hate Speech

Rather than government censorship, the Supreme Court has endorsed “counterspeech” as the appropriate response to hate speech - more speech, not silence. As Justice Kennedy wrote in his concurring opinion: “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.”

Why This Matters Today

In an era of increasing calls for speech restrictions and expanding definitions of harmful speech, Matal v. Tam serves as a crucial reminder of American constitutional values. As legal experts note, “each American all but certainly has a different understanding of exactly what expression should lose First Amendment protection as hate speech. One citizen’s hateful screed is another’s religious text; one citizen’s slur is another’s term of endearment”.

The decision recognizes that “hate speech is also a moving target, making a workable definition still more elusive. Conceptions of what constitutes ‘hate’ do not remain stable over time”, making government regulation both impractical and dangerous to free expression.

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Conclusion

The Supreme Court’s unanimous decision in Matal v. Tam stands as one of the most significant First Amendment victories of the 21st century. By unanimously reaffirming that there is no “hate speech” exception to the First Amendment, the Court protected not just Simon Tam’s right to reclaim a racial slur, but the fundamental principle that in a free society, the remedy for offensive speech is more speech, not government censorship.

The decision’s power lies not just in its result, but in its sweeping language defending free expression. When Justice Alito wrote that the disparagement clause was “not an anti-discrimination clause; it is a happy-talk clause,” he captured the Court’s recognition that government attempts to sanitize public discourse inevitably become tools of censorship. Justice Kennedy’s warning resonates equally strongly: “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 Court’s analysis demolishing the government’s arguments—that trademarks are government speech, that registration constitutes a subsidy, or that preventing offense justifies censorship—establishes clear boundaries against future attempts to expand government control over expression. As Justice Alito noted, if the government’s theory were accepted, “other systems of government registration (such as copyright) could easily be characterized in the same way,” threatening vast areas of protected speech.

Simon Tam himself noted that the victory was “a win for all marginalized groups” while recognizing that “no one builds better communities by shutting people out.” This insight captures the decision’s deeper wisdom: that protecting offensive speech ultimately protects all speech, especially that of minority voices who may challenge prevailing orthodoxies.

The principle—that we protect “the thought that we hate”—remains as vital today as when Justice Holmes first articulated it nearly a century ago. In an era of increasing calls for speech restrictions and expanding definitions of harmful expression, Matal v. Tam serves as a crucial reminder that “the First Amendment does not entrust that power to the government’s benevolence,” but instead relies “on the substantial safeguards of free and open discussion in a democratic society.”

This unanimous decision ensures that the marketplace of ideas remains open to all viewpoints, even those we find deeply offensive, trusting in democratic discourse rather than government authority to determine which ideas deserve protection. It stands as a bulwark against the perpetual temptation to silence unpopular speech in favor of preserving the robust debate essential to democratic society.

*The full Supreme Court opinion in Matal v. Tam is available at: *https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf