It was a big day for free speech at the US Supreme Court. In two consequential decisions, the justices set the terms for the First Amendment in the era of Donald Trump and the internet. In one, the court struck a blow against political correctness, saying the Patent and Trademark Office could not refuse to register an offensive trademark. In the other, the court declared social media to be the vast public forum for nearly all expressions.
The cases display the free speech absolutism that has become judicial orthodoxy in recent years. In tandem, they frame the future of speech on social media. The government isn’t going to do the regulating itself, and the rule of civility, if any, is going to have to come from the private media companies.
The trademark case, Matal v. Tam, got more coverage before the decision, partly because it implicates the refusal of trademark registration to the Washington Redskins. In an opinion by Justice Samuel Alito, the court held that it was unlawful viewpoint discrimination for the government to issue all registrations except those that disparage “persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
In a part of the opinion that got only four votes, Alito expressed what was certainly the crucial line in the opinion for him: “Giving offense is a viewpoint.” What Alito meant was that the government couldn’t legitimately claim that the denial of a trademark registration for the band named “The Slants” was neutral with respect to viewpoints because it targets offense against anyone at all.
On a deeper level, Alito was speaking out in favor of a right to offend. That is a contentious position in the broader culture over what discourse should be allowed in public. But, it correctly states Supreme Court doctrine.
To be sure, workplaces and university campuses may be governed by different legal standards. The debate about what offensive speech should be permitted there will continue, and Alito was certainly staking out his position and that of the other conservatives. But the public square is different.
The social media case, Packingham v. North Carolina, may turn out to be more important in the long run. At issue was a state law that barred registered sex offenders from using any social media that children are permitted to use.
The Supreme Court unanimously agreed that the law violated the free-speech rights of sex offenders. In a majority opinion, Justice Anthony Kennedy offered a paean to the worries of the internet in general and social media in particular. He listed various social networks and a range of human activities that could be pursued on them. And he commented that Facebook has three times more than users than there are people in North America.
Not content to rest there, Kennedy opined that the information revolution was still very much underway, and he described the internet as “protean.” His goal was to say that the internet’s potential has not been realized.
Constitutionally, this assessment supports the idea that blocking sex offenders from social media was akin to blocking them from full range of free speech option available in public spaces like parks and street corners. Alito concurred separately, joined by Chief Justice John Roberts and Justice Clarence Thomas to say that although he agreed the law was unconstitutional, Kennedy had gone too far in making social media content free from government regulation. In particular, Alito wanted to leave open the possibility of more focused laws that might, for example, keep sex offenders off teenage dating sites.
But, as Alito sensed, such regulations would have a very hard time surviving Supreme Court scrutiny after the Packingham decision. Kennedy and his liberal colleagues clearly see the future of free speech as a occurring to a large extent online.
What is most striking about the two opinions taken together is what they mean for the regulation of offensive speech on social media: The government is not going to get involved. In practice, what that means is that the corporations that own and control social media are going to be squarely in charge of shaping the norms of speech. Indeed, the First Amendment will be interpreted to protect Facebook, Twitter and the rest of the social media universe in imposing the private rules they choose.
Things may turn out differently in Europe, where governments are increasingly pushing internet giants to follow domestic speech regulations. In the U.S., however, the combination of the First Amendment and private ownership of social media is creating a brave new world of free speech.