Free Speech Divisions at the Supreme Court By Daniel Tagliarina

Free Speech Divisions at the Supreme Court By Daniel Tagliarina

On June 19, 2017 the Supreme Court of the United States announced its ruling in two different free speech cases. While one, Matal v. Tam, has gained attention already, the other, Packingham v. North Carolina, largely has not.

Both cases were decided the same day. Both cases are important for understanding free speech protections under the First Amendment. And both cases were unanimous rulings (8-0 as both were argued before Justice Gorsuch joined the Court).

As is true with many unanimous rulings, this unanimity in both cases masks deeper divides. In fact, both cases break down into two groups of justices reaching the same conclusions, but not for the same reasons.

Matal v. Tam is a trademark case involving Tam’s having been denied a trademark for his band, “The Slants.” Tam and his bandmates are Asian-Americans and say they picked the name to “reclaim” the slur that was directed at them growing up. The Patent and Trademark Office (PTO) denied Tam’s application because a federal law prohibits registering trademarks that “disparage” any “persons, living or dead” (this is the same law that was used to strip the Washington Redskins of their trademark in 2014). The PTO determined that “The Slants” was disparaging, and that Tam’s reason for using the term was legally irrelevant.

All eight Supreme Court justices that heard the case ruled that the federal law the PTO used in making its decision violates free speech protections enshrined in the First Amendment. Justice Alito wrote the decision for the Court, where he argued that the purpose of the law was “preventing speech expressing ideas that offend,” which is not allowed under the First Amendment. All of the participating justices join part of this decision (only Chief Justice Roberts and Justice Breyer agree with all of Alito’s decision, and Justice Thomas joins most of Alito’s opinion).

However, Justice Kennedy, along with Justices Ginsburg, Sotomayor, and Kagan, offered a separate explanation for why the law was unconstitutional. Like Alito, Kennedy argues that the law violates the First Amendment, but Kennedy goes much farther in his decision than Alito does. Alito argues that the law restricts more speech than is allowed, and thus is unconstitutionally broad. Kennedy, conversely, argues that the law itself constitutes “viewpoint discrimination,” a point that Alito mentions but that is not central to the Court’s decision.

Viewpoint discrimination involves laws that target specific views—in this case trademarks that “disparage” persons—for negative legal treatment. Laws that discriminate against specific viewpoints are allowable only in very limited circumstances, and Kennedy argues that government did not meet this high standard in the justifications it offered for its law.

Thus, Matal v. Tam has eight justices arguing a law is unconstitutional. Four justices, led by Alito, offer narrow readings of the law and want a low standard of review, which typically favors government restrictions on speech even if not this specific restriction. The other four participating justices want a higher level of protection for speech, favoring speech over government restrictions. Similar dynamics play out in Packingham v. North Carolina as well.

Packingham v. North Carolina involves a North Carolina law, passed in 2008, that makes it a felony for registered sex offenders to access various “commercial social networking” sites if the site allows minors to become members or create their own accounts and pages. The law applies to approximately 20,000 people in North Carolina, and more than 1,000 of them have been prosecuted under the law. This includes Packingham, who is a registered sex offender for a crime he committed in 2002. Packingham maintained a Facebook page under a pseudonym and was charged after he posted that he was excited to have had a traffic ticket dismissed, and an officer linked the post back to Packingham.

Once again, the Court voted unanimously to strike down the North Carolina law as violating the First Amendment on free speech grounds. This time, Kennedy wrote the decision for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. While the law is viewpoint neutral (unlike in Matal v. Tam), Kennedy argues that the law goes too far in restricting access to information and public discussion spaces. Such restrictions violate the very essence of our free speech protections, even if the purpose was the protection of minors.

The law, for Kennedy, is far too broad to achieve its stated purpose, and thus restricts far more speech than is necessary or allowable. Kennedy goes so far as to characterize the internet as the main place for many people to gather information, read the news, and engage in public discourse. He argues that to cut off access to so many sources of information and discussion, including many news website that allow users to create their own accounts, cannot be tolerated under the First Amendment.

While agreeing that the North Carolina law is unconstitutional, Justice Alito writes a separate opinion, joined by Chief Justice Roberts and Justice Thomas. Alito agrees the law is too broad and restricts too much speech. However, he specifically takes issue with Kennedy’s sweeping language regarding the value of the internet as a place of public dialogue and political discourse. Once again, Alito sees a violation of the First Amendment, but wants to acknowledge this violation in narrow terms and preserve the government’s power to restrict speech when it finds it necessary. Alito worries that Kennedy’s “language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers.” For Alito, Kennedy goes too far in assessing the importance of access to the internet as protected free speech

Thus, both cases involve eight justices finding two different laws to unconstitutionally restrict free speech. However, what we also see is a highly divided Court with one bloc led by Kennedy trying to preserve speech by limiting government efforts to prohibit some viewpoints and control where individuals may engage in online discourse or knowledge gathering. The other bloc, led by Alito, wants to balance free speech and governmental power to allow government to pursue its interests, while acknowledging limitations created by individual rights. These justices disagree on both the scope of governmental powers and on the very essence of the free speech protections within our First Amendment rights. This disagreement is masked by the fact that all eight justices participating in these cases agree that the two laws in question were unconstitutional.

Looking at these cases together emphasizes a few important points. These points are likely to show up in more decisions as the Court hands down the final rulings of this term. First, unanimity is not a sign of agreement. Second, reasonable people can reach the same conclusions, but for different reasons. Third, there are deep divides within the Court regarding the extent of our fundamental rights and governmental power, and these are playing out in important ways that will shape the law for years to come. Finally, these sharp divides underscore the impact that Justice Gorsuch will have in future cases as his views and opinions join with these ongoing debates.


Daniel Tagliarina is Assistant Professor of Government and Pre-Law Adviser at Utica College.

Medicaid Expansion States Home to GOP Healthcare Defectors? By Luke Perry

Medicaid Expansion States Home to GOP Healthcare Defectors? By Luke Perry

The Referendum Thesis Fails in Georgia By Heather E. Yates

The Referendum Thesis Fails in Georgia By Heather E. Yates