My views about the proper role of a law professor (in and out of the classroom) were well set prior to the election of President Trump. My views haven’t changed completely, but have adjusted somewhat in light of Trump’s unique threat to rule of law values. I would like to share the evolution of my views to work through them in a public way. Although many use the phrase “not just academic” to disparage a particular mode of abstract thinking, we must continue to establish, question, and preserve important ideals and conceptual constructs even when human lives (and precisely because human lives) are affected by those abstract ruminations.
Below is an email I sent to the Scientists’ March on Washington, connecting free speech to science. Some commenters on the March’s webpage expressed the belief that science should be used to advance particular ideals, values, or causes, and I hope the March doesn’t echo that view. Science, like free speech, must remain a process-based concept in order to retain its value.
“Dear Organizers of the Scientists’ March On Washington,
If America were a reality show, the Trump Presidency would be off to an exciting start. Although raucous displays make for good television, they don’t necessarily make for good governance. During Trump’s first week in office, we saw some good and some bad omens for the fate of free speech values under a Trump Administration.
Today, the Supreme Court heard oral argument in Lee v. Tam, a case about whether a federal statute barring registration of racially offensive trademarks violates the First Amendment. For background and legal analysis on the case, I have written a blog series, which starts here. Because the Justices framed the issues in this case so differently, this oral argument post will detail the views and concerns of each Justice, Justice by Justice. I will also address how the attorneys for each side handled those concerns, and who I thought won over each Justice.
Because I teach, write, and care about First Amendment issues, I have come to appreciate more deeply the importance of the media’s role in fostering two of the major values underlying the First Amendment. The media provides necessary information that allows citizens to participate more fully and rationally in our democracy (the participatory self governance theory of free speech). More broadly, the media provides necessary information on which Americans can form opinions about any number of issues (the marketplace of ideas in the search for truth theory of free speech). Unfortunately, at a time when the media’s role is most critical, more and more Americans have become cynical about the media.
If Americans don’t trust the media to report stories accurately and fairly, its critical role will be undermined. The proliferation of actual “fake news” hasn’t helped this cynicism, nor has the increasing use of the concept of “fake news” to discredit stories one disfavors. I would like this blog post to begin a conversation on how to restore faith in the media, by which I mean – how can more Americans embrace mainstream journalism as its source of credible information on topics relevant to public life and important private matters?
Part Five: The Final Pre-Argument Analysis
On January 18, the Supreme Court will hear oral argument in Lee v. Tam, the case that will decide whether the federal government’s denial of trademark registration to disparaging trademarks violates the First Amendment.
This case is extremely important — it will resolve the balance between free speech rights and government prerogative to deny benefits to those whose speech it finds disagreeable. The outcome of this case will directly affect The Slants, the band whose trademark registration was denied because it was deemed offensive to those of Asian heritage, and Washington’s football team, whose trademark registration was cancelled as disparaging to Native Americans. The case will also resonate more broadly to implicate any government program or government benefit where the government wishes to disassociate itself from objectionable/racist speech.
For an overview of the facts and legal issues in this case, see Part One of this series here. In Part Two, here, I discuss the argument by Petitioner Patent and Trademark Office (PTO) that the government should be permitted to create an optional government program without endorsing racial slurs. In Part Three, here, I present some of the best arguments in favor of the PTO, articulated in an amicus brief written by law professors who study trademark law. In Part Four, here, I disagree with these law professors and explain why trademark law’s disparagement clause likely amounts to unconstitutional viewpoint discrimination.
In this post, I will present some of the best arguments in favor of Respondent Simon Tam, a member of The Slants, and some of the concerns with those arguments.