Robert T. Miller, a JMC fellow, writes in the Public Discourse that broad legal protections of speech is consistent with America’s political and legal traditions that rely on the people to be prudent stewards of their freedoms.
Free Speech and the American Experiment
Last year, in Matal v. Tam, the Supreme Court considered a constitutional challenge to provisions of the Lanham Act that prohibit the Patent and Trademark Office (PTO) from registering any trademarks that may “disparage … or bring into contempt or disrepute” any “persons, living or dead.” Tam, the leader of an Asian rock band called “The Slants,” wanted to register that name as a trademark. “Slants,” however, is a derogatory term for Asians (Tam wants to appropriate the term and so drain it of pejorative force), and so the PTO refused to register the mark. Tam sued, claiming that the relevant provisions of the act violated the First Amendment. A unanimous Supreme Court agreed, holding that giving offense is a particular viewpoint, and a law restricting expression on the basis of viewpoint violates the First Amendment.
The Supreme Court has often held that the government may not ban speech merely because it is offensive, and so the result in Matal was not surprising. Nevertheless, the case is important because, it makes clear that, although many European nations ban “hate speech” and other forms of speech deemed offensive, the United States will continue its long tradition of protecting more speech than other nations do.
Now, most Americans think this is a good thing, but my friend Professor Hadley Arkes, writing in the Claremont Review of Books, disagrees. Like the Europeans, he thinks that offensive speech should not be protected. On his view, the First Amendment should protect arguments but not epithets, reasoned discourse but not insults. As to Matal, he thinks that the Court’s opinion can be explained only by supposing that the justices are falling into moral relativism.
I have the greatest respect for Professor Arkes. I also agree completely with the position with which he is universally identified and for which he is rightly regarded as a hero of modern conservative jurisprudence—that almost all legal reasoning inevitably involves some natural-law reasoning. I cannot, however, follow him down this road about Matal. I think there is a simpler explanation of Matal and the Supreme Court’s other free speech cases. In my view, the Court is not saying, or even implying, that there is no objective standard about which speech is offensive and which is not. Like other people, the justices can recognize the difference between an argument and an epithet. Rather, the justices are saying that, although there is an objective standard about which speech is offensive, the government cannot be trusted to apply this standard in particular cases, regardless of whether the application is done by the legislature, the courts, jurors, or any other government actor. To see why, it helps to consider some other legal problems that may at first seem rather different but that in fact involve quite similar principles.
Before joining the faculty at the University of Iowa College of Law, Professor Miller was a Professor of Law at the Villanova University School of Law and the Associate Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good at Villanova University. He has been a Visiting Professor of Law at the University of Pennsylvania Law School, a Visiting Assistant Professor of Law at the Cardozo Law School, and an Olin Fellow in Law and Economics at the Columbia Law School. Before entering academia, Professor Miller was an associate at Wachtell, Lipton, Rosen & Katz in New York. His scholarship concerns corporate and securities law, the economic analysis of law, and the philosophy of law, and he has taught courses in Business Associations, Mergers and Acquisitions, Law and Economics, Corporate Finance, Antitrust, Contracts, Deals, and Capitalism.
Professor Miller earned his J.D. from the Yale Law School where he was a Senior Editor of the Yale Law Journal and an Olin Fellow in Law, Economics and Public Policy. He earned his M.A. and M.Phil degrees in philosophy from Columbia University, where he held a Mellon Fellowship in the Humanities from the Woodrow Wilson National Fellowship Foundation and a Western Civilization Fellowship from the Intercollegiate Studies Institute. He earned his B.A. in philosophy and mathematics from Columbia College.
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