The U.S. Supreme Court last month shored up free speech when it ruled the federal Department of Commerce could not regulate expression through the Patent and Trademark Office.
This seems like low-hanging fruit, although the Court had scarcely grabbed for it before: Where, pray tell, did the Commerce department derive the authority to supersede the First Amendment?
The case involved clothing sold under the brand name FUCT. If that offends you, you are not alone. The ruling means you could see a variety of goods and services sold under trademarked names that will offend you. But thanks to the Court, liberty is preserved. Markets can sort out the rest.
Alan Dershowitz, the former Harvard law professor, once observed that there ought to be a First Amendment club. To gain admission, you would have to defend the right of anyone to say the thing that most offends you. For Dershowitz, it was the right of neo-Nazis to peaceably march in Skokie, Illinois in 1977. It was a brave stand then.
If you re-litigated that case in the court of public opinion today, we do not think you would find many defenders of that right, although we hope we are wrong. This is why we have a Court.
The trademark law disfavored certain ideas, Justice Elena Kagan said, writing for a six-justice majority. In the realm of speech, government reserved the right to pick winners and losers. It reserved the right to decide what was offensive and to act to protect delicate sensibilities.
Six justices – seven if you count a concurring opinion – said we did not go to all the trouble of setting up a constitutional republic only to have the government play baby-sitter.
Liberty is not divisible.