US Supreme Court Loaded With First Amendment Cases

By David Kravets, Ars Technica

10 January 17

Can you trademark an offensive name or not? Justices to decide.

he First Amendment is being put to the test on multiple levels this term before the US Supreme Court. The high court will hear cases about the right to trademark offensive names and whether merchants have a right to inform customers that a credit-card surcharge is actually a surcharge. Two cases involve the free exercise of religion clause of the First Amendment. The first is about whether Missouri breached that clause by supplying recycled tire material for playgrounds to public and secular schools, but not to religious schools. The court has already decided to hear the Missouri case, but it has not decided whether it will consider a request to revive a challenge to Utah's law against polygamy. That lawsuit claims the law is a violation of "religious liberty rights protected by the First Amendment." (PDF) At this stage, however, the justices most likely could decide this case without actually having to weigh in on polygamy or the First Amendment. More on that later.

First up on the docket is Expressions Hair Design v. Schneiderman, which the justices are to argue Tuesday. A law in 10 states forbids merchants from imposing a surcharge on goods paid for via a credit card. Surcharges help merchants recover the so-called "interchange" fees banks charge them for accepting credit cards. Strangely, in those 10 states, merchants may offer "cash" discounts. Either way, the result is the same: people who use credit cards can be charged more.

But how this pricing structure is described to customers is at the heart of the First Amendment battle. The laws require that merchants inform customers that price differences for cash or credit purchases are cash "discounts" and not credit card surcharges. This means merchants are not allowed to charge a base price before tacking on a fee to those using credit cards.

In New York, breaching that law, heavily backed by the banking industry, is punishable by up to a year in jail.

Merchants brought a challenge to the Supreme Court contending the measure is a violation of their First Amendment rights of speech because it restricts what they can say about their prices, not how much they can charge. What's more, they say the law does not protect consumers. "Its effect is to criminalize truthful speech conveying price information," they argue. New York maintains the law is designed to minimize profiteering. "... the imposition of a surcharge is not an act of speech that the First Amendment restricts the government from regulating."

Meanwhile, the justices are scheduled to hear another First Amendment case, Lee v. Tam, on January 18. The case essentially asks whether federal intellectual property regulators can bar people from trademarking an offensive name.

A section of trademark law actually forbids the US Patent and Trademark Office (USPTO) from approving a trademark if it "consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute."

The issue reached the justices in a case concerning a Portland-based Asian-American rock band that sought to trademark its name, The Slants. Previously, decisions have come down on both sides regarding trademarking offensive names. The most notable denial is likely the name of the NFL's Washington franchise, "Redskins." But lesser-known denials include "Stop the Islamization of America," "The Christian Prostitute," "AMISHHOMO," "Mormon Whiskey," "Ride Hard Retard," "Abort the Republicans," and "Democrats Shouldn't Breed."

By contrast, other potentially offensive names have been trademarked. Some of these examples include "Dangerous Negro," "Celebretards," "Stinky Gringo," "Midget-Man," and "Off-White Trash."

In the Slants case the justices agreed to review, the US Court of Appeals for the Federal Circuit cited the First Amendment and sided with The Slants and its founder Simon Tam. The appeals court struck down that entire section of trademark law, ruling that "the First Amendment protects "even hurtful speech." Tam said the band's name is to bring awareness to racial and cultural issues. In its appeal, the government argued that being denied a trademark is not a "restriction on speech" because trademarks are "federal benefits" to advance intellectual property rights. (PDF)

Another First Amendment case the high court has agreed to hear is Trinity Lutheran Church of Columbia v. Pauley. This case doesn't concern free speech, but instead deals with the First Amendment in the religious context. The case involves recycled tires and a Missouri grant program that provides shredded recycled tire pieces to soften playgrounds. The dispute is this: Trinity Lutheran argues that its constitutional rights are being violated by being excluded from the grant program. The church says its members have a right to exercise religion while at the same time being treated the same as others.

Missouri counters that the state has done nothing to interfere with the church's ability to worship or run its church child daycare program. Missouri's constitution prohibits state funds from going "directly or indirectly, in aid of any church, sect, or denomination of religion." And Missouri also said that the First Amendment prohibits government from making laws that "prohibit" the free exercise of religion. But Missouri also says it is free to enact laws that "frustrate" religion.

Many groups watching this case suggest that a ruling in favor of Missouri could jeopardize government funding for a wide array of faith-based social services, including soup kitchens and even battered women's shelters. The justices have not announced a hearing date.

The final First Amendment case before the high court also touches on religion. Brown v. Buhman concerns a polygamous Mormon family from Utah on TLC's Sister Wives reality TV show. The family sued Utah over the state's anti-polygamy law, and a federal judge struck down (PDF) portions of the law that made "cohabitat[ing] with another person" illegal if they weren't legally married. But a federal appeals court ruled that, because the state and local county said they would not prosecute—even after police opened an investigation once the show aired—the case was therefore "moot" and should not have been decided by the lower courts.

The family said it moved to Nevada to avoid prosecution.

But on appeal to the Supreme Court, the Sister Wives family wants that federal appeals court's decision (PDF) overturned. They say a lawsuit can't simply go away because the government adopted a non-enforcement policy during the pendency of litigation—a non-enforcement policy that is not even enforceable.

"At its core, this case concerns whether a Utah statute that bans married persons from engaging in voluntary cohabitation with other persons is unconstitutional—either as a violation of Petitioners' sexual privacy rights protected by this Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), or their religious liberty rights protected by the First Amendment," according to the family's petition to the justices. The petition adds that "this constitutional question is currently blocked from continuing on the merits."

The justices are to consider whether to hear the case at their January 19 private conference. The court only has eight members, as we await President-elect Donald Trump's pick to replace Justice Antonin Scalia, who died in February.