No ‘Hate Speech’ Exception to Free Speech, Supreme Court Rules Unanimously

June 19, 2017 4:45 pm Last Updated: June 19, 2017 9:58 pm

The U.S. Supreme Court voted 8-0 on Monday to reaffirm that hate speech is still free speech.

The case before the justices concerned a trademark registration application for a band called The Slants. The trademark office deemed the term offensive to asians and rejected the application.

The ruling comes at a time when leftist groups nationwide are using the hate speech label to silence the voices of those whose opinions they do not share. Hate speech was the label used by the violent protesters at Berkeley University who shut down a speech by right-wing speaker and former Breitbart editor Milo Yiannopoulos. Talks by conservative speakers have similarly been disrupted and shut down by violent leftist protesters using hate speech as a pretext.

“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 Samuel Alito wrote on behalf of four of the justices.

Justice Anthony Kennedy, writing on behalf of four of the other justices, stated:

“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.”

Surprisingly, no dissent emerged from the left-leaning justices.

Members of the Portland, Oregon-based Asian-American rock band The Slants (L-R) Tyler Chen, Ken Shima, Simon Tam, Joe X. Jiang pose in Portland, Oregon, U.S., August 21, 2015 in a picture released by band representatives.  (Anthony Pidgeon/Handout via Reuters)
Members of the Portland, Oregon-based Asian-American rock band The Slants (L-R) Tyler Chen, Ken Shima, Simon Tam, Joe X. Jiang pose in Portland, Oregon, U.S., August 21, 2015 in a picture released by band representatives. (Anthony Pidgeon/Handout via Reuters)

Band frontman Simon Tam has said he chose to call the band The Slants to reclaim a term some consider a derogatory reference to Asian people’s eyes, and wear it as a “badge of pride.” The band’s lawyers argued that the government cannot use trademark law to impose burdens on free speech to protect listeners from offense.

The American Civil Liberties Union, which filed legal papers supporting the band, hailed the ruling as a major victory for the First Amendment. ACLU lawyer Lee Rowland said government efforts to protect minorities from disparagement instead hurt members of that very community, in this case the Asian-American band.

“Fortunately, today’s opinion prevents the kind of absurd outcome that results when the government plays speech police,” Rowland said.

Patent and Trademark Office spokesman Paul Fucito said the agency was reviewing the decision. The government previously said a ruling favoring The Slants could lead to a proliferation of racial slurs as sanctioned trademarks.

Ben Shapiro, a conservative commentator and fierce defender of free speech, still warns that the current cultural trend in the United States may threaten free speech, despite today’s ruling. People from both ends of the political spectrum have been connecting violent rhetoric with actual violence. Such statements may eventually be linked to an actual First Amendment exception that prohibits speech that directly incites violence.

“If as a culture we begin to identify words with violence—if we begin to suggest that a production of Julius Caesar is an incitement to assassination, or if we state that Sarah Palin’s targeted district map is an incitement to violence, or if we explain that Charles Murray must be banned from campus because his research on IQ might lead to discrimination—we’re going to start banning words in the near future,” Shapiro wrote.

Reuters contributed to this report.