August 21, 2017
Matal v. Tam: The Galloping “Government Speech” Doctrine Hits the Wall
If First Amendment jurisprudence were a horror film, the doctrine of “government speech” would be the gelatinous blob that ate freedom of expression.
Like the monsters of cinema, “government speech” can strike suddenly and without warning, swallowing unsuspecting speakers who foolishly believed themselves safe. Once speech is deemed to be expression by or on behalf of the government rather than the individual speaker, all of the reliable First Amendment safeguards collapse—even the otherwise impregnable prohibition against viewpoint discrimination.
But government speech met its match in the Supreme Court’s most recent First Amendment pronouncement, Matal v. Tam,1 a case most widely noted for its spillover impact on a certain Washington-area National Football League team and its ability to defend a trademarked mascot that many find offensive for its cartoonish depiction of Native Americans.
From a First Amendment lawyer’s vantage point, the Court’s June 19 ruling signals a welcome course correction after the Justices’ dubious expansion of the government speech doctrine in the 2015 case of Walker v. Texas Division, Sons of Confederate Veterans, Inc.,2 involving a state’s authority to reject disfavored political messages on vanity license plates. On the movie poster, the Tam case might be subtitled, “Walker II: Alito’s Revenge.”
Here is how we got there.
In November 2011, singer Simon Shiao Tam applied to register the name of his band, The Slants, with the U.S. Patent and Trademark Office. Tam and his band had been performing under the name—a slur often directed at Asian-Americans—in an effort to “reclaim” the word, in the same way that feminists have organized “slut walks” and LGBT activists have taken ownership of “queer.”
A patent examiner rejected the application, applying a prohibition in the Lanham Act, 15 U.S.C. § 1052(a), that forbids registering “scandalous, immoral, or disparaging” marks. “Slants” was deemed impermissibly “disparaging” because it has historically been used to insult people of Asian ethnicity. The Trademark Trial and Appeal Board upheld the decision, even though Tam attested to his benign intent.
The Federal Circuit reversed the Board, finding that the prohibition against “disparagement” was facially unconstitutional. The court applied an intermediate level of scrutiny applicable to commercial speech under the Supreme Court’s seminal Central Hudson3 case, but found that the statute flunked even that relaxed level of scrutiny. The patent office then appealed to the Supreme Court, in a brief that relied heavily on the Justices’ Walker decision.
In Walker, a 5-4 majority ruled that the Sons of Confederate Veterans had no right to insist that the Texas Department of Motor Vehicles distribute a vanity license plate featuring the Confederate battle flag, which the state rejected after hearing testimony from citizens who deemed the image “offensive.”4
While “offensiveness” cannot justify government restraint of speech, the Walker majority, in an opinion by Justice Stephen Breyer, categorized automobile tags as the speech of the government agency that distributes them. Hence, the Confederate veterans had not “spoken” at all, and had suffered no infringement.
Ordinarily, when a speaker seeks to use government property to convey a message—whether physical property (such as a park) or intangible property (such as a funding system)—the government is forbidden from enforcing viewpoint-based restrictions. But Justice Breyer maintained that the Court’s “forum doctrine” cases did not apply to the license plates, because the plates were not a conveyance for citizen speech: “With respect to specialty license plate designs, Texas is not simply managing government property, but instead is engaging in expressive conduct.”5
Justice Samuel Alito wrote the four-justice dissent in Walker, noting the wide assortment of messages that the State of Texas had approved for vanity plates, some contradictory of each other—such as plates both for fans of the University of Texas Longhorns and for the university’s out-of-state rival teams. No reasonable audience member, Alito wrote, would assume that the state espouses the viewpoints on plates honoring everything from recreational golfing to fast-food chains to NASCAR drivers.6 “This capacious understanding of government speech,” he warned, “takes a large and painful bite out of the First Amendment.”7
In the Tam case, the dissenters bit back.
Alito authored the majority opinion striking down the Lanham Act’s “disparagement” prohibition, the outcome of which all eight participating Justices joined, though with some diverging on the reasoning.
In a portion of the opinion joined by all eight—even the five justices in the Walker majority—Alito pronounced firmly: “Trademarks are private, not government, speech.”8
Because the Trademark Office’s primary argument rested on Walker, Alito—after a backhanded observation that Walker “likely marks the outer bounds of the government-speech doctrine”—painstakingly distinguished it.9 Walker’s conclusion that license plates are government speech, he wrote, rested on the state’s historic use of the plates to convey messages by and on behalf of the government, and the state’s direct involvement in their manufacture and distribution.10 By contrast, names and slogans submitted to the Trademark Office belong to their creators, and are recognized by the public as representing the speech of the purveyor of the goods they adorn.
“If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the express of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents,” he wrote.11 Later, he returned to the topic: “Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine.”12
The divergence came over Alito’s dismantling of the government’s secondary arguments—that the government may prefer certain viewpoints over others when it subsidizes speech (trademark registration is not a “grant,” and in fact costs the registrant money) and that prohibitions on “disparagement” can be upheld under the more relaxed scrutiny afforded to content-based restraints on commercial speech under Central Hudson.
Justice Anthony Kennedy, with three joiners, found it unnecessary to address those questions. Once the regulation was recognized as viewpoint-discriminatory—a point on which all eight Justices agreed—the analysis was over: “A subject that is first defined by content and then regulated or censored by mandating only one sort of comment is not viewpoint neutral. To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so.”13
While Justice Alito’s explanation of the government speech doctrine and its limits is indisputably correct (and aligns with the Federal Circuit’s analysis below), the Court’s unanimity is difficult to reconcile with the outcome in Walker. One wonders whether the Walker majority’s five voters would have joined Justice Alito as readily had the registrant of “Slants” been an extremist political group peddling shirts with an anti-immigration message. While a rock-and-roll band is not government property in the same way that a license plate is, so that Tam represents the easier case, in neither instance does the government instigate the speech or affirmatively choose its wording, as would be expected if the message was truly the government’s.
Whatever the motivation, the Justices have now cabined “government speech” and its sibling doctrines from consuming any more individual expression. This is welcome news for anyone who depends on a government-provided conduit to convey a message.
Had the case gone the way of Walker, the Court would have provided government agencies everywhere with an end-run around the historically strong protection afforded to unpopular speakers’ viewpoints in “designated” public forums, such as bulletin boards or meeting halls on state property. Rather than regarding a government conduit as a forum, an agency might argue that providing a platform for speech converts the speech into the government’s. And the more heavily the agency used its authority to pick-and-choose among messages (so goes the Walker reasoning, urged by the government in Tam), the more that history of selectivity would itself validate the unprotected status of the platform.
This is not a hypothetical concern. That same confounding approach—that the more an agency censors, the more authority it gains to censor—has been applied for years to denude students of the protection of the forum doctrine in cases such as R.O. ex rel. Ochshorn v. Ithaca City School District,14 in which the court held that a school’s history of violating its own policy against censorship was conclusive evidence that no “forum” existed and that the school could continue freely censoring.
Tam signals a hard stop to the erosion of speakers’ rights heralded in Walker, perhaps confining Walker to its peculiarly unsympathetic set of facts.
Frank D. LoMonte is the is Executive Director of the Student Press Law Center, www.splc.org, a nonprofit legal-aid organization based in Washington, D.C., that advocates for the legal rights of student journalists and journalism educators nationwide. In addition to his role at SPLC, Mr. LoMonte serves as the Director of the Brechner Center for Freedom of Information at the University of Florida.
- Matal v. Tam, No. 15–1293, slip op. (U.S. June 19, 2017).
- 135 S. Ct. 2239 (2015).
- 447 U.S. 557 (1980).
- See Walker, 135 S. Ct. at 2244.
- Id. at 2251.
- See id. at 2255 (Alito, J., dissenting).
- Matal, slip op. at 18.
- Id. at 17.
- See id.
- Id. at 14.
- Id. at 17.
- Id. at 3 (Kennedy, J., concurring).
- 645 F.3d 533 (2d Cir. 2011).
Recommended Citation Frank D. LoMonte, Response, Matal v. Tam: The Galloping “Government Speech” Doctrine Hits the Wall, Geo. Wash. L. Rev. On the Docket (August 21, 2017), http://www.gwlr.org/matal-v-tam/.