FAN 209 Justice Jackson’s Barnette Opinion Scrutinized in F.I.U. Law Review Symposium

April 17, 2019

Coming soon in FAN: “Hayden Covington, the man who argued 44 cases in the Supreme Court, most of them First Amendment cases” 


[T]he national picture drawn by Barnette is Whitmanesque and Emersonian: it resonates strongly with the romantic tradition . . . [and] is also romantic in an aspirational sense. — Steven Shiffrin, The First Amendment, Democracy, and Romance (1990)

Robert Jackson . . . wrote one of the most luminous definitions of Americanism in the history of the nation when he [authored] West Virginia State Board of Education v. Barnette . . .  — Nat Hentoff, Free Speech for Me but Not for Thee (1992)

The true legacy of Barnette is . . . its defense of the principles of freedom. — Leo Pfeffer, in The Oxford Companion to the Supreme Court of the United States (2005)


As the above quotes illustrate, Justice Robert Jackson’s opinion in West Virginia State Board of Education v. Barnette (1943) has long been viewed as one of the mainstays of free speech liberty in America. “The case has become a part of our nation’s civic pride,” is how the folks at the Robert H. Jackson Center have portrayed it. Even so, in recent years the case has come under exacting scrutiny.

For example, in an essay published in First Amendment Stories (2012), Professors Vincent Blasi and Seana Shiffrin wrote: “Barnette turns out to be surprisingly difficult to defend.” That thoughtful essay, while defending certain tenets of the Jackson opinion, seriously questioned the jurisprudential soundness of Barnette on its own terms and likewise in terms of its applications to compelled speech cases outside of the school context. In that spirit, some just-published articles in a Barnette Symposium reconsider the doctrinal staying power of Justice Jackson’s landmark opinion.

The Symposium appears in the current issue of the Florida International University Law Review (2019): “Barnette at 75: The Past, Present, and Future of the Fixed Star in Our Constitutional Constellation.” Select articles are highlighted below:

Excerpts From Oral Arguments in the “FUCT” Trademark Case

“The justices seemed equally troubled by the law, which several said was both vague and inconsistently applied, and by the consequences of ruling in Mr. Brunetti’s favor, which some said would encourage the use of swear words and the most charged racial epithets.”  — Adam Liptak, New York Times (April 15, 2019)

This past Monday the Court heard oral arguments in Iancu v. Brunett, in which the issue is whether section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment. Here are a few excerpts, organized by topic, from the transcript of the oral arguments in the case:

Pacifica Distinguished 

Erik Brunetti, founder FUCT clothing. (Wikicommons)Erik Brunetti, founder FUCT clothing. (Wikicommons)

Malcolm Stewart: “If you look, for instance, at George Carlin’s filthy words monologue, the monologue that was at issue in Pacifica, that’s a paradigmatic example of profane copyrightable expression. Now our society has reached a good accommodation where people who find the Carlin monologue funny or thought-provoking can buy the CDs, they can buy the DVDs; when Carlin was alive, they could watch live performances. All that can be done without forcing the profanity upon anybody who finds it offensive.”

Government Interest?

Justice Alito: “[W]hat is Congress’s interest? Is it — does it have an independent interest in not having the federal government associated with certain words? Or is it just an interest in following whatever the population thinks is offensive or scandalous or immoral at a particular point in time? . . .”

Justice Sotomayor: “Why are you resisting Justice Alito? Why can’t the government’s interest in not being associated with sexually explicit activity or words be enough?”

Inconsistent Enforcement? 

Justice Kavanaugh: “[H]ow do you deal with the problem of erratic or inconsistent enforcement, which seems inevitable with a test of the kind you’re articulating?”

Justice Gorsuch: How is a reasonable citizen supposed to know? What notice do they have about how the government’s going to treat their mark? . . . And what’s the rational line? How is a person — a person who wants to get a mark supposed to tell what the PTO is going to do? Is it a flip of the coin?”

Racial Slurs

Justice Breyer: “What about racial slurs?”

Mr. Stewart: “I think, in general, slurs are taken off the table by Tam. . . You could say this particular racial slur is considered uniquely offensive, even as compared to other racist speech, and, therefore, it could be denied registration on the ground that it was an impermissible mode of expressing a racist — racist thought.”

Offensive Non-Conformist Speech

Chief Justice Roberts: “What about Mr. Brunetti’s argument that the use of the word expresses a viewpoint precisely because of its offensiveness? You know, it’s edgy, it expresses a non-conformist attitude, all of that?”

Government Association with Message

Justice Breyer: “[W]hy doesn’t the government have a right to say, this is a commercial matter, purely commercial, it is totally free to use any word you want right next to this registered trademark; we just don’t want to be associated with it?”

How You Say It?

Justice Kagan: “Well, our — our standard for obscenity is so high, I can’t believe that many trademarks would really qualify as — as obscene, but I — but let’s say that the government has a real interest in preventing a certain kind of just profanity, vulgarity, nothing to do with the viewpoints of speakers but something to do with the way they express those viewpoints.”

Censorship vs. Denial of a Government Benefit

Justice Alito: “The government is not saying, you can’t use this phrase, this word, we just won’t register it. . . .”

Viewpoint Discrimination Exception?

Justice Breyer: “No, I don’t agree with it’s viewpoint. I think that very often the word involved in your case and the racial slur is not viewpoint. It is used to insult somebody, rather like fighting words, or it’s used to call attention to yourself. That’s the purpose of the slur. That isn’t viewpoint. Fighting words isn’t viewpoint. Or, if it is, it’s overcome.”

John Sommer: Well, Mr. Brunetti’s viewpoint is, as already pointed out, I can be offensive, I don’t have to obey the authority. And that’s viewpoint.”

Chief Justice Roberts: “I don’t want to distract you in that, but that’s completely circular. It’s like saying my protest is that I want to use words prohibited by, you know, not given trademark protection, and because I have that viewpoint, you have to give them trademark protection. That — that’s totally circular”

More on Racial Slurs

Justice Breyer: “[W]hat I am worried about is the viewpoint, as you say, but I’m also worried about the — the racial slur we all know about, okay, suddenly, in certain places in the United States, appearing as a product name, appearing on every bus where it’s advertised, appearing on news stands in Times Square where it wouldn’t be, but it might be in some other city, and where children and others see it. . . .”

Mr. Sommer: “Well, since Tam, the trademark office has taken the position that it cannot refuse any racial slur. And, in fact, it is approving them. But even before Tam, there were variations on that racial slur registered.”

Cohen Distinguished

Justice Gorsuch: “Why isn’t it a government benefit and why can’t the people choose to withhold the benefit on 10 the basis that there are certain words that are profane and that we, as a matter of civility in our culture, would like to see less of rather than more of, and you can use — you’re free to use them.  Cohen can have his T-shirt, but we are not going to trademark them, and we’ve held just last year that a patent is a public benefit that can be withdrawn without a judge. Why isn’t this also similarly a public benefit rather than a private right?”

Insults

Justice Kavanaugh: “What — what is your answer to Justice Breyer’s comment that insult — insulting someone is not a viewpoint?”

Mr. Sommer: “Well, I would agree that all the traditional exceptions to the free speech, such as fighting words, is not expressing a viewpoint, but, as to insulting someone being viewpoint, you decided that unanimously in Tam.”

Malcolm L. Stewart (Oyez)Malcolm L. Stewart (Oyez)

Obscenity & Words

Justice Kavanaugh: ” . . . [W]ith respect to words and letters, how would you define obscenity in this context?”

Mr. Sommer: “Well, I would just use Miller versus California because the government basically is arguing here we should ignore Miller versus California or modify it or create a new exception to the First Amendment for vulgar. So a picture I can see can be obscene. And I can see if you had a long sentence that said some things, which I don’t need to give you an example, but you could imagine a sentence or two that could be prurient interest. . . ”

Public Fora & Public Bus Ad Space

Justice Kavanaugh: “If we rule for you in this case, is there a principled ground on which we could distinguish public bus ad space?”

Mr. Sommer: “Definitely, because that is a public forum. And I think that the — probably the clearest way is as public disruption . . .”

Justice Kavanaugh: “Public? . . . I don’t understand that.”

Mr. Sommer: “Okay. . . I’ll withdraw that. I think it might be hard to . . . draw a line there.”

Harm to First Amendment Interest?

Justice Breyer: “So what exactly is the harm to the First Amendment speech interest here? I mean, this is, after all, simply not forbidding use of any word in any place, but you can’t put a little R next to it.”

The “F” Word

Chief Justice Roberts: “I take it that the — a correct spelling of the vulgar word at the heart of the case, that can’t be trademarked, right? . . . ”

Justice Sotomayor: “[Y]ou’re conceding to the Chief Justice that anyone who uses the words on goods to sell them can use any profane word and register it? . . . But the word that the Chief asked you about you say can be registered –”

Mr. Sommer: “I believe it can be –”

More on Cohen

Mr. Stewart: “The reason that the law in Cohen was held to be invalid was that it entirely prohibited the use of the word in a public space. Here, we’re not doing that.”

Profanity as a Method of Speaking

Mr. Stewart: “Profane words can be used as part of a larger message, but we’re not denying registration because of the message, it’s because of the profanity. . . Congress can legitimately decide that it wants to disincentivize the use of trademarks that substantial numbers of people would find offensive and to disassociate the government from those trademarks.”

Media Coverage

SCOTUS Denies Cert. in “True Threats” Case

The Supreme Court declined .  . . to take up the case of rapper Jamal Knox, who argued he was sent to prison for a song that was protected by the First Amendment.

By avoiding the issue for now, the justices left for another day a look at the contours of so called “true threats” — speech that falls outside the protections of the First Amendment.

The case was of keen interest to rappers who weighed in to argue that rap music is a “work of poetry” where “meter and rhyme are primary,” and words are often chosen for their contribution to a song’s rhythm rather than its precise message.

(Source: CNN, April 15, 2019)

Reporters Committee: Use of ‘husher’ during jury selection violates First Amendment

A coalition of 18 media organizations, led by the Reporters Committee for Freedom of the Press, is arguing that a Washington, D.C. trial court judge’s decision to obscure the public’s ability to hear a jury selection violates the First Amendment.

Jonathan Blades is seeking rehearing or reconsideration of a D.C. Court of Appeals panel ruling that upheld the trial judge’s use of a white noise machine in Blades v. United States to prevent members of the public from hearing individual juror’s answers to questions during jury selection, also known as voir dire. The media coalition filed a friend-of-the-court brief on April 8 supporting his request, claiming the use of a white noise machine or husher interferes with the public’s First Amendment right of access to judicial proceedings.

“The very purposes of the First Amendment right of access — to allow the public to oversee and understand what is transpiring in the courtroom, and to monitor judges and participants — cannot be achieved if the public cannot hear what is being said,” the media coalition wrote in the brief. “The First Amendment creates a strong presumption of public access to all aspects of criminal trials, including voir dire.”

The entirety of the questioning of individual jurors took place with the husher turned on, meaning members of the public were unable to hear any part of any of the jurors’ responses, fully preventing public access to jury selection.

(Source: Reporters Committee, April 16, 2019)

Reporters Committee’s Amicus Brief: Blades v. United States (D.C. Cir., April 8, 2019)

Prison Book Ban Partially Rescinded

Facing mounting public criticism over a ban on sending free books to prison inmates, the Washington Department of Corrections backed down, partially rescinding the ban and now allowing a select group of nonprofits to send books. However, Books to Prisoners Seattle, a nonprofit advocacy group for inmates, called the adjusted policy “insufficient,” and met with department officials to clarify its details.

Representatives of BTP Seattle met with WDOC officials on Friday to challenge and clarify the new book policy. The newly adjusted policy would allow books to be sent only from four nonprofit vendors: Books to Prisoners Seattle, Books Through Bars, Women’s Prison Book Project, and Prisoners Literature Project. Representatives of Books to Prisoners Seattle said they were “optimistic” after their initial meeting with WDOC officials, but a BTP Seattle spokesperson told PWnegotiations on the details and unanswered questions about the newly adjusted book policy will continue.

(Source: Publishers Weekly, April 15, 2019)

FIRE’s 2019 Regional Conference

Zachary WoodZachary Wood

Evan Cree Gee writing for FIRE:

This weekend, 45 student activists from colleges and universities around the country gathered in Boulder, Colorado to take part in FIRE’s Regional Conference. This one-day conference was packed with sessions about FIRE’s work and student activism on campus.

The day began with a keynote address from Zachary Wood, a recent graduate of Williams College who now serves as an assistant curator at TED. Zach talked with the students about his experiences with censorship in the form of disinvitations of those invited as part of the “Uncomfortable Learning” speaker series he chaired during his time at Williams.

Zach also gave the students advice to help in their fights for free expression on campus. He stressed the importance of finding allies among students, faculty, and alumni, and encouraged students to approach activism with an empathetic attitude, noting that the absence of such an attitude makes it much easier for others to be dismissive of your arguments.

Headline: “Banned Books Week Coalition Debuts 2019 Anti-Censorship Plans”

From Publishers Weekly:

In conjunction with the release of the American Library Association’s annual list of the books asked most frequently to be removed from libraries, the Banned Books Week Coalition announced plans for this year’s Banned Books Week, subtitled Censorship Leaves Us In the Dark. This year’s event will be held September 22-28.

. . .The ALA’s Office for Intellectual Freedom has just released its annual list of Top 10 most challenged books (it’s 11 this year because of a tie).

Website:  BannedBooksWeek.org

Forthcoming Book: “The Disappearing First Amendment”

The standard account of the First Amendment presupposes that the Supreme Court consistently has expanded the scope of free speech rights over time. This account holds true in some areas, but not in others. In this illuminating work, Ronald J. Krotoszynski, Jr. acknowledges that the contemporary Supreme Court rigorously enforces the rules against content and viewpoint discrimination for those who possess the wherewithal to speak but when citizens need the government’s assistance to speak — for example, access to public property for protest — free speech rights have declined. Instead of using open-ended balancing tests, the Roberts and Rehnquist Courts have opted for bright line, categorical rules that minimize judicial discretion. Opportunities for democratic engagement could be enhanced, however, if the federal courts returned to the Warren Court’s balancing approach and vested federal judges with discretionary authority to require government to assist would-be speakers. This book should be read by anyone concerned with free speech and its place in democratic self-government.

New Book on Campus Speech 

Recently, many American higher education institutions have endured politically motivated disturbances undermining academic freedom. Unlike the wave of disruptions under the expanded “free speech” banner in the Sixties, these new protests have often sought to limit the speech of invited speakers, campus spokespersons, and the media with whom they disagreed.  In response, many prominent persons, including former President Obama, university leaders, and faculty senates, have sought to restore the primacy of open dialogue as an academic ideal.

Professor George R. La Noue (James G. Martin Center for Academic Renewal)Professor George R. La Noue (James G. Martin Center for Academic Renewal)

The barking dog of censorship usually creates attention. This book discusses incidents that created national publicity at Amherst, Brown, City University of New York, Evergreen, Lewis and Clark, Michigan, Middlebury, New York University, Reed, Seattle, Yale, UC Berkeley, University of Pennsylvania, University of Washington, Vanderbilt, and Wesleyan. But, if that guard dog just silently patrols the fences of acceptable campus discourse, nothing may be heard in the vacuum created. Many speakers will not be invited and many public policy issues will be thought too controversial for open discussion. Even tenured faculty may avoid expressing ideas that will upset their colleagues or campus activists. For free speech, the problem may be more often what is omitted from campus discussions, the silenced stages, than overt suppression.

This book reports on original research about the topics and participants in on-campus policy debates or forums where divergent viewpoints were presented regarding 24 national policy areas. Accessing campus calendars for 2014 and 2015 in a stratified national sample of 97 universities and colleges and 28 law schools enrolling 991,802 students annually, the results show a paucity of such events, except at very elite wealthy institutions or law schools. For most students in American higher education, the opportunity to hear on-campus debates about important public policy issues does not exist. Free speech for controversial speakers dominates the press coverage, but the more important story of the absence of debate and divergent opinion is missed.

University of Colorado Law Review Symposium on Listeners’ Choices & Rights 

  1. Listeners’ Choices by James Grimmelmann
  2. Limiting the Right to Buy Silence: A Hearer-Centered Approach by Burt Neuborne
  3. Powerful Speakers and Their Listeners by Helen Norton
  4. The MacGuffin and the Net: Taking Internet Listeners Seriously by Derek E. Bambauer
  5. Press Speakers and the First Amendment Rights of Listeners by RonNell Andersen Jones
  6. When Audiences Object: Free Speech and Campus Speaker Protests by Gregory P. Magarian
  7. Data Subjects’ Privacy Rights: Regulation of Personal Data Retention and Erasure by Alexander Tsesis
  8. Commercial Speech Protection as Consumer Protection by Felix T. Wu

New Scholarly Article

Brooklyn Law Review Symposium: “Incitement At 100”

Here are a few photos from last week’s conference: Symposium: Incitement At 100—And 50—And Today: Free Speech and Violence in the Modern World




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This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.