U.S. Supreme Court

Chemerinsky: Free speech on the SCOTUS docket


Erwin Chemerinsky

Erwin Chemerinsky.

The January oral argument calendar includes two major cases about freedom of speech. Although they arise in quite different contexts, they each raise questions of how far the First Amendment extends to limit government regulation.

Lee v. Tam

Section 2(a) of the Lanham Act, 15 U.S.C. 1052(a), provides that no trademark shall be refused registration on account of its nature unless it “[c]onsists of … matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Simon Tam is the lead singer of a dance-rock band called The Slants. “Slants” is a derogatory term sometimes used for Asians. Tam and the band are Asian-Americans and say that they call themselves The Slants to make a political statement and to “re-appropriate” the term from being a slur to one embraced by the Asian-American community.

In 2011, Tam sought to federally register The Slants as a trademark for use in connection with live performances of his band. The Patent and Trademark Office, through an examiner and then through the Trademark Trial and Appeal Board, refused to allow this trademark to be registered on the ground that “slants” was a disparaging term. The United States Court of Appeals for the Federal Circuit, in an en banc decision, reversed and held that Section 2(a) of the Lanham Act violated the First Amendment because it was a viewpoint-based restriction of speech.

The Supreme Court granted review, and oral argument is scheduled for January 18. A host of issues are raised in the briefs of the parties and the many amici. Tam, and some of the amici who write briefs in support of his position, argue that the case can be decided on statutory grounds: that “slants” should not be regarded as a disparaging term and that even if it is, it does not disparage a person, institution, belief, or national symbol as required by the statute.

Assuming the court reaches the constitutional questions, the justices will need to consider whether denial of registration of a trademark is an infringement of speech. The government contends that the actions of the Patent and Trademark Office did not punish speech at all. The United States argues that it is just the government creating eligibility for a program it runs, trademark registration. Tam, by contrast, argues that the government cannot condition a benefit on having to give up a constitutional right and that the Patent and Trademark Office was impermissibly conditioning the substantial benefit of trademark registration on it having to relinquish its speech.

Tam, like the federal circuit, wants the court to see this as the government punishing speech based on the viewpoint expressed, something that triggers strict scrutiny under the First Amendment. It is firmly established that the government cannot regulate speech just because it is offensive, even deeply offensive. But the government sees this akin to speech by the government and analogizes to the court’s recent decision in Walker v. Texas Division, Sons of Confederate Veterans (2015), which held that license plates are a form of government speech and Texas therefore did not have to issue plates with the Confederate flag.

A great deal will depend on whether the high court wants to look at the issue from the perspective of the First Amendment or from the vantage point of intellectual property. From the former, surely Congress could not pass a law that prevents copyrighting of books or songs that have offensive words or even racist ideas. Is this really any different? On the other hand, all of intellectual property law, by definition, restricts speech. If this is unconstitutional, what of all of the other limits on expression imposed by patent, copyright, and trademark law?

Expressions Hair Design v. Schneiderman

All states allow merchants to charge higher prices for a consumer to pay with a credit card rather than with cash. This is so merchants can recoup their costs for credit card transactions, which generally are two to three percent of a transaction. Ten states, including, New York, have enacted laws that require the merchant to communicate that the price difference is a cash “discount” and not describe it as a credit-card “surcharge.” In New York, it is a crime punishable by a year in jail for a merchant to describe the additional charge as a credit card surcharge rather than a cash discount. Does this constitute a restriction on speech that violates the First Amendment? This is the issue on Expressions Hair Design v. Schneiderman, which will be argued on January 10.

Again, the two sides of the litigation, and the many amicus briefs, characterize the underlying issue presented quite differently. The challengers and their amici see the New York law as regulating truthful speech and thus violating the First Amendment. The petitioner argues that the “law regulates speech, not conduct, because it restricts only what merchants may say about their prices, not what they may charge. Its ‘purpose and practical effect’ make this clear. Its effect is to criminalize truthful speech conveying price information.” The petitioner says that the law serves no important government purpose; it does nothing to protect consumers.

By contrast, New York and its amici argue that the law is regulating commercial transactions, not speech. New York argues that the law “regulates the economic conduct of increasing prices on account of a customer’s credit card use. Like any other such pricing conduct, the imposition of a surcharge is not an act of speech that the First Amendment restricts the government from regulating.” Moreover, New York claims that its law serves important interests in preventing profiteering, in reducing deceptive and unfair sales techniques, and in stimulating its retail economy.

The two sides sharply disagree as to the implications of the court striking down the New York law. Supporters of the New York law argue that invalidating it will open the door to challenging countless other laws—preventing fraud, protecting consumers, regulating speech in the workplace, enforcing antitrust statutes—that also involve speech. The challengers, though, reject that implication and say, “‘few if any additional state laws are likely to be affected’ by this Court’s decision, which may not ‘have much impact outside the context of credit-card surcharges.’”

The United States filed an amicus brief in support of neither side that urges the court to remand the case for further consideration. The United States argues that many of the terms in the statute are vague and need to be construed, including perhaps by the court of appeals certifying questions to the New York courts. In a year where the high court may be inclined to narrow rulings to avoid 4-4 deadlocks, this approach could have appeal.

Still waiting

Another First Amendment case on the docket, Trinity Lutheran Church of Columbia v. Pauley, still has not been scheduled for oral argument. The issue is whether Missouri violated the free exercise clause of the First Amendment or denied equal protection by providing assistance—soft material for the bottom of playgrounds—to public and secular private schools, but to not religious schools. The court granted certiorari on January 16, 2016, and briefing was done by mid-July. The case could have been heard as early as October. But it is one of three cases granted on January 16 that still have not been scheduled for oral argument. It appears that the court anticipates a likelihood of a 4-4 split and is waiting for a ninth justice before hearing the case.


Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).


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