Free Speech

The Supreme Court keeps on accepting First Amendment cases—perhaps because among the current Court there is much agreement on the First Amendment, so being down a Justice doesn’t matter. This does not bode well for state and local governments, like North Carolina in this case. For better or worse, this case like Expressions Hair Design v. Schneiderman, accepted in September, gives the Supreme Court a chance to refine its holding in Reed v. Town of Gilbert, Arizona (2015).  

The issue in Packingham v. North Carolina is whether a North Carolina law prohibiting registered sex offenders from accessing commercial social networking websites where the registered sex offender knows minors can create or maintain a profile, violates the First Amendment.

The issue in Lee v. Tam is whether Section 2(a) of the Lanham Act, which bars the Patent and Trademark Office (PTO) from registering scandalous, immoral, or disparaging marks, violates the First Amendment.

Simon Shiao Tam named his band The Slants to “reclaim” and “take ownership” of Asian stereotypes. The PTO refused to register the band name finding it likely disparaging to persons of Asian descent. Tam sued the PTO arguing that Section 2(a) of the Lanham Act violates the First Amendment Free Speech Clause.  

In Heffernan v. City of Paterson, New Jersey the State and Local Legal Center (SLLC) Supreme Court amicus brief argues that a government employer’s perception that an employee has exercised his or her First Amendment rights cannot be the basis for a First Amendment retaliation lawsuit. 

Officer Heffernan was assigned to a detail in the Office of Chief of Police. He was reassigned after he was seen picking up a campaign sign for the current police chief’s opponent.

The First Amendment protects non-policymaking public employees who support a candidate in an election. Officer Heffernan maintains that he was in no way involved with the police chief race. The sign wasn’t for himself; it was for his bedridden mother.

Since the Supreme Court’s term began in early October it has agreed to hear 15 cases—13 at its “long” conference before the term began and two subsequently. Many will have an impact on the states. And a number will only impact specific states (and a territory!).   

In Walker v. Sons of Confederate Veterans the Supreme Court held 5-4 that Texas may deny a proposed specialty license plate design featuring the Confederate flag because specialty license plate designs are government speech. Walker is of particular significance to state and local government because the Court did not narrow the 2009 landmark government speech case Pleasant Grove City, Utah v. Summum.   

The Sons of Confederate Veterans (SCV) proposed a specialty license plate which featured a faint Confederate flag in the background and the organization’s logo, a square Confederate flag. After receiving public comment on the proposed plate the Texas Department of Motor Vehicles Board unanimously voted against issuing it noting that many members of the general public found the design offensive. SCV sued Texas claiming that specialty plates are private speech and that the Board engaged in unconstitutional viewpoint discrimination by refusing to approve its design.

Pages