Monday, June 19, 2017
It's a "Captain Obvious"-level obvious point, but the Court handed down two cases today -- Matal v. Tam and Packingham v. North Carolina -- that seem entirely consistent with the Justice-Kennedy-era Court's highly libertarian, regulation-skeptical approach to the First Amendment's Freedom of Speech. Although there were some concurring opinions, it's striking that, at the end of the day, the free-speech claimant won in both cases unanimously. It strikes me as plausible that the justices are sending signal to those who have been suggesting recently that the First Amendment does not protect offensive, hurtful, divisive, or "hateful" speech and, perhaps, mean to shape the debate about speakers, speech, protests, etc., on public-university campuses. Justice Kennedy wrote, in his concurring opinion (joined by three of the Democratic appointees):
The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. An initial reaction may prompt further reflection, leading to a more reasoned, more tolerant position. Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive.