Media, Law & Policy

Free Speech Expert Roy Gutterman Explains the SCOTUS Decisions on Two First Amendment Cases

Monday, June 19, 2017, By Ellen Mbuqe

Roy Gutterman, Syracuse University Associate Professor and Director of The Tully Center for Free Speech, comments about the recent Supreme Court decision on Lee v. Tam and Packingham v. North Carolina.

Lee v. Tam

“Matal v. Tam, formerly Lee v. Tam, decided today (Monday, June 19) by the Supreme Court, makes sense in a lot of ways.  Registering a trademark does not mean that word or group of words is government speech, which would have allowed the government to regulate a message or empower the government to censor an offensive message. The opinion today reiterates a bold First Amendment principle that our laws protect even speech we find offensive or hateful,” says Gutterman.

This case involved a band, The Slants, which sought to register its name for a trademark as an effort to reclaim the epithet from its derogatory and hateful origins.  When the Patent and Trademark Office denied the application citing an anti-disparagement provision in the trademark law, the band leader litigated, arguing that the government was suppressing his First Amendment rights to express himself.

“This opinion delves into some interesting doctrine on the history, purpose and application of trademark law as well as how trademark law relates to speech in general,” says Gutterman. “By rejecting the trademark law’s disparagement clause, the court is making a statement that the Patent and Trademark Office and our trademark laws in general should not pass judgment on content, even offensive slogans.”

Packingham v. North Carolina

“In Packingham v. North Carolina, the Supreme Court recognized the growing role of the internet, particularly social media, as a place where First Amendment protections need to be guarded.  This case involved a state law barring registered sex offenders from accessing social media.  A law like this could render a certain group of citizens totally removed from modern communications.  Speech and access to others’ speech are fundamental rights under the First Amendment, and the court properly extends this to social media,” says Gutterman.