Supreme Court’s far right faces a free-speech problem

This Supreme Court term promises to be important for the First Amendment. Major decisions are expected soon on the rights of social media platforms and their users. But the free-speech fun has already begun.

In an otherwise unremarkable trademark case, a major debate about how to decide First Amendment issues broke out. On one side was Justice Clarence Thomas, joined fully by Justices Samuel Alito and Neil Gorsuch, pushing the hard-line conservatives’ new “history and tradition” approach to interpreting laws.


On the other was Justice Amy Coney Barrett, joined fully by Justice Elena Kagan and partly by Justices Sonia Sotomayor and Ketanji Brown Jackson, calling for a simple rule drawn from analogous free-speech precedent.

There are a number of important takeaways, but the most relevant right now is that neither originalism nor the more malleable “history and tradition” can help solve new problems in free-speech law.

The trademark case, Vidal v. Elster, was initiated by one Steve Elster, who tried to trademark the phrase “Trump too small.” The Patent and Trademark Office rejected the trademark because the Lanham Act says you can’t trademark the name of a living individual without his or her consent. In court, Elster argued that the living person rule should be held unconstitutional because applying it requires reading the trademark to ascertain if it contains the name of a living person. According to a formalistic rule first formulated by Thomas in a 2015 case, if a law requires you to look at the content of an utterance to apply the law, it presumptively violates free speech.

Applying Thomas’s absolutist free-speech rule to the living persons law would produce the absurd result that the living persons rule should be struck down: The only way you can tell if a trademark includes the name of a living person is by reading what the trademark says.

So Thomas broke out the conservatives’ favorite new constitutional toy, the idea that the Constitution should be interpreted according to “history and tradition.”

This approach has been used by the conservative court in the last couple of years to reverse Roe v. Wade, vastly expand gun rights, and overturn 50-plus years of existing doctrine on the separation of church and state.

Thomas based his majority opinion on the idea that trademark law has been around for a long time and no one has ever seriously thought the living persons rule violated the First Amendment.

On the surface this may sound like a reasonable approach.

The problem is that, if you really take history and tradition back to 1791 and earlier in the free-speech context, you would have to trash nearly the entirety of free-speech doctrine, which was created by judges in the 20th and 21st centuries.

The First Amendment as ratified and understood in 1791 didn’t receive any meaningful doctrinal development by the Supreme Court until 1919, when Justice Oliver Wendell Holmes initiated modern free-speech doctrine. At the time, Holmes himself acknowledged that it wasn’t clear if the framers had intended the First Amendment to do anything more than prohibit pre-emptive censorship. In other words, when it comes to free speech, originalism is useless. History and tradition is little better.

Barrett understands all this very clearly. She wrote a concurrence explaining that Thomas’s historical analysis was unconvincing and that history and tradition would be a bad way to decide free-speech cases. Instead, she proposed a simple, clear rule: There is nothing wrong with content-based trademark rules as long as they are reasonably related to the two purposes of trademark law, protecting the trademark owner and enabling consumers to tell products from each other.

To be sure, Barrett’s opinion isn’t some foray into liberalism. It’s just a demonstration of doctrinal intelligence and honesty in the face of the mumbo-jumbo of history and tradition. Indeed, as is frequently the case for Barrett, the guiding spirit behind her position is that of the late Justice Antonin Scalia, for whom she clerked. Barrett explained neatly that Thomas had failed to “adopt a generally applicable principle” in his opinion — the cardinal sin for Scalia, who believed that, as he once put it, the rule of law should be a law of rules.

The upshot is that Barrett is registering skepticism about history and tradition in general — and offering a particularly appropriate and devastating riposte to its use in free-speech cases.

Whatever the court decides about social media, it would do better to apply First Amendment doctrine in the light of the purposes of free expression, not based on vague history and tradition that long preceded social media’s invention.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”

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