Supremes Stand Up for Speech

High court weighs in on internet free speech and trademarks

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Free speech got a boost from the Supreme Court last week, including in regards to social media in a move away, generally speaking, from government censorship.

As concerns the trademarking of offensive names, the court, in an 8-0 decision, granted an Asian-American rock band the right to trademark its name, a racially disparaging term. While the Justice Department, under then-President Barack Obama, asserted that trademarks were government speech, the court ruled they were private speech, saying: “If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”

And in another decision rendered on the same day, June 19, the court weighed in on internet speech protections, as public interest-attorney Andrew Schwartzman pointed out in a blog post. The case involved what the court ruled was an unconstitutionally broad prohibition on online speech.

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Writing for five members of the court in a concurring opinion (the actual decision was 8-0 as well), Justice Anthony Kennedy said, “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace — the ‘vast democratic forums of the internet’ in general, and social media in particular.”

While that is dicta, rather than precedent (to be legal precedent it would have had to come in the decision rather than the concurrence), as Schwartzman points out, the fact that it was supported by a majority of the court means lower courts could look to it for guidance as they are presented with cases involving limits on internet speech.