Monday, July 10, 2017

SCOTUS Provides Much Needed Civics Lessons

An Asian-American rock band, the Slants, fought all the way to the Supreme Court to be able to register their name with the Patent and Trademark Office. Federal law bars someone from registering a name or mark that is "scandalous, immoral, or disparaging." Such potential trademarks are likely to offend. The question was whether or not the Patent and Trademark could prohibit the registering of the name "Slants" because of its disparaging nature.

The band wanted to be able to register the name, not to be self-deprecating, but as a means of removing the disparaging nature that the word has come to embody. In a unanimous 8-0 decision in the case of Matal v. Tam, the Court found for the Slants. Justice Alito wrote: "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'"

In a concurring opinion, Justice Kennedy explained: "A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all...The First Amendment does not entrust that power to the government's benevolence."

The positive impact has been felt already. First, the Justice Department is dropping its case against the Washington Redskins over the use of its name, after the Redskins lost their Trademark protection in 2014. Second, the New York Times got a needed lesson in the First Amendment. Their editorial board (6/20/17 editorial) opined: "Based on this case, however, we've since reconsidered our underlying position" on the Redskins case. Why would a media outlet need any instruction on the significance of free speech? As previously noted in this blog, the Left no longer shares in the fundamental American values - values such as free speech. The name "Redskins" is deemed offensive by the Left, and that ends their analysis. That approach is why conservatives speakers are not welcome on college campuses - they don't like the message, so no need to allow them to speak. The First Amendment be damned.

The other civics lesson came in the case of Trump v. International Refugee Assistance Project - the so-called travel ban case. Two federal appellate courts, the Fourth Circuit and the Ninth Circuit, upheld District Court decisions striking down Trump's executive order. The Supreme Court disagreed, at least for now. The Court agreed to hear the merits of the case in the fall. In the meantime, the injunctions issued by the lower courts are removed, except in cases of those who have connections to the USA - "a credible claim of a bona fide relationship."

The Court's decision was an unsigned - but unanimous - per curiam decision. Three Justices did write an opinion, but not in dissent. Justices Thomas, Alito and Gorsuch joined in an opinion saying that all the restrictions in the executive order should stand, without the restriction on "bona fide relationships."

What are the lessons from this case? First, the entire population of the world does not have a constitutional right to come to the United States. The fact that two appellate courts thought otherwise speaks more to a political agenda than to the rule of law. Second, the Supreme Court clearly understands that our Constitution set up three branches of government - all with different functions. Federal courts are not privy to day to day intelligence briefings, and they are not subject to being voted out of office. If the President's policy offends enough people, he may be voted out. In the meantime, it is the President who, traditionally, sets our foreign policy. Not the Courts. Should we also have courts second-guessing where and when a president may order the deployment of troops? While some on the Left would undoubtedly approve of that arrangement, the Constitution tells us that it is the president who is the Commander-in-Chief.

Over the last century the Left has increasingly looked to the Courts to accomplish their agenda, as the political process has often failed them. Just as the Left viewed "offensive" speech as superseding the First Amendment's right to free speech, they also viewed their opposition to the so-called travel ban as superseding any issue about the Constitutional separation of powers. Having said this, it remains extremely disappointing that a government agency (the Patent and Trademark office) and that various District Court and Appellate Court Judges, needed these reminders from the Supreme Court about our Constitution.

Given the failure by federal officials, one can only wonder about how well informed the average student and citizen is about our Constitution. It is for that reason that I suggested (in my July 1 post) that all students be required to learn about the Constitution and how our system of government works. For now, I will be content that the New York Times, the Patent and Trademark Office, and a number of federal judges all got the message.