Having apparently decided that a case involving Universal Music Group taking down an adorable video of toddlers dancing to Prince constituted too high of a risk of joy, innocence, or other life-affirming emotions, today the Supreme Court of the United States of America made a pair of decisions that will remove two of the biggest obstacles to forming a more perfect union: The inability to trademark offensive terms, and a ban on sex offenders using Facebook.
The first decision is the more complex one, having been approached from two different perspectives. On the one hand, the court’s decision to strike down a 71-year-old law banning trademarks that “disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt, or disrepute” will benefit the Washington Redskins, whose registered trademark, which the team had held since 1967, was canceled in 2014 on the basis that the name is offensive to Native Americans. Redskins owner Dan Snyder is certainly pleased with the verdict, saying in a statement reported by the Associated Press, “I am THRILLED. Hail to the Redskins.”
But this particular case wasn’t brought by the Redskins. It was brought by Portland-based rock ‘n’ roll band The Slants, who argued that using a racial slur as its name is a statement on racism in America and a reclamation of the term by the band’s Asian-American members. Founder Simon Tam originally tried to trademark the band’s name in 2011, but was denied his request by the U.S. Patent and Trademark Office, which said the name “disparages Asians.” Tam has maintained that the Washington Redskins have “tried to hijack our case,” and indeed his perspective is easier to swallow than a white guy saying his team’s name is “honoring” Native Americans over the objections of actual Native Americans.
But as far as the Supreme Court—which voted unanimously—is concerned, speech is speech. As Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonya Sotomayor, and Elena Kagan put it in their opinion on the case: “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.” And one of the good things about the First Amendment is that, although it does give people the right to say offensive things, it also gives their fellow citizens the right to let them know that they sound like a real dumbass when they say those offensive things.
Meanwhile, today’s other big decision was also a First Amendment case, striking down a North Carolina law prohibiting convicted sex offenders from using Facebook, Twitter, or other social media sites altogether. The court ruled unanimously in favor of plaintiff Lester Packingham Jr., the Associated Press reports, rejecting the state’s argument that the ban protected children in virtual spaces similarly to the way laws prohibiting sex offenders from coming within a certain distance of schools or playgrounds protect them in the real world. Packingham, who pleaded guilty to charges related to a statutory rape case in 2002, was busted after boasting about beating a parking ticket on Facebook.
“To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” Justice Kennedy wrote in the majority opinion, although Justices Roberts, Alito, and Thomas warned that the decision’s “loose rhetoric” could prevent states from taking future action to restrict sex offenders’ use of the internet. Many states do currently require sex offenders, particularly those whose cases involve children, to submit internet browsing histories to authorities, and restrict internet use as a condition of parole. Those laws stand unchallenged.
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