This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Late last month, the U.S. Supreme Court handed down two opinions addressing separate free speech issues.  While neither decision related specifically to local government regulations, both hold some important lessons for local government practice, as we outline below.

In Packingham v. North Carolina, the Court struck down a North Carolina law making it a felony for registered sex offenders “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”  Gerard Packingham, having previously been convicted of “taking indecent liberties with a child,” was cited for violating the law when he posted a statement on his Facebook page about a “positive experience in traffic court.”

At trial, Packingham filed a motion to dismiss on the grounds that the charge violated his First Amendment free speech rights.  The trial court denied Packingham’s motion, and he was subsequently convicted.  Upon appeal, the Court of Appeals of North Carolina struck down the law on First Amendment grounds, explaining that “the law is not narrowly tailored to serve the State’s legitimate interest in protecting minors from sexual abuse.”  The North Carolina Supreme Court reversed, holding the law constitutional “in all respects,” and explaining that the law was carefully tailored to prevent sex offenders from accessing “only those Web sites that allow them the opportunity to gather information about minors.”

Writing for the U.S. Supreme Court, Justice Kennedy noted that “[a] fundamental principle of the First Amendment is that all persons have access to the places where they can speak and listen, and then, after reflection, speak and listen once more.”  According to Justice Kennedy, past cases have struggled to identify the “most important places for the exchange of views,” but it is clear that “cyberspace” and social media qualify in modern times.  Although “the sexual abuse of a child is a most serious crime,” and legislatures may pass valid laws to protect children, “the assertion of a valid governmental interest cannot in every context be insulated from all constitutional protections.”  Here, the North Carolina law enacted a “prohibition unprecedented in the scope” of burdened First Amendment speech, because to foreclose access to social media altogether is to bar “access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”

Still, states may pass similar yet more specific laws, as “the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime.”  So long as future laws are narrowly tailored to serve a significant government interest, they may find more constitutional grounding than North Carolina’s law.

In Matal v. Tam, the Court addressed a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring into contempt or disrepute” any “persons, living or dead.”  Simon Tam, the lead singer of an Asian-American dance rock band, sought federal registration of the mark “THE SLANTS” in order to “reclaim” the term from its denigrating force against Asian persons.  The Patent and Trademark Office (PTO) denied the petition under the aforementioned Lanham Act provision.  To determine whether a trademark qualifies as disparaging, an examiner considered: (1) “the likely meaning of the matter in question, taking into account . . . the relationship of the matter to the other elements of the mark, the nature of the goods or services, and the manner in which the mark is used”; and if that meaning is found to refer to identifiable persons, beliefs, etc. then (2) “whether that meaning may be disparaging to a substantial composite of the referenced groups.”

Under this two part test, the PTO denied Tam’s trademark application. Tam appealed to the PTO’s Trademark Trial and Appeal Board who upheld the PTO’s denial.  Tam then contested the denial in front of the Federal Circuit who found the “disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause.”

Before the Supreme Court, the government argued that trademark registration constitutes government speech, and that the disparagement clause of the Lanham Act was a permissible action to control the government’s message.  In addressing this argument, the Court noted that while “the First Amendment does not say that Congress and other government entities must abridge their own ability to speak freely,” the doctrine is susceptible to misuse where private speech is “passed off as government speech by simply affixing a government seal of approval.”  In this case, the government does not “dream up” or edit the marks submitted for registration, and examiners do not inquire whether any viewpoint expressed by a trademark is consistent with Government policy.  With various conflicting and contradictory trademarks currently registered, “[i]f the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.”

Importantly, the Court noted that its holding in Walker, that messages on Texas specialty license plates are government speech,  “likely marks the outer bounds of the government-speech doctrine.”  Utlimately, trademark registration is private speech not government speech, and holding otherwise “would constitute a huge and dangerous extension of the government-speech doctrine.”

These two cases, while unrelated to matters of purely local regulation, hold some useful lessons for local government practitioners.  Packingham addresses a matter of communication on social media.  Local governments frequently use their websites, Facebook pages, Twitter feeds, and other outlets to host comments and communications from the public.  Local governments should take heed of Packingham’s admonition that cyberspace is now the most-used place for the free exchange of ideas, and that narrow tailoring is a must in regulating online communications.  Although the Court did not conduct a forum analysis in arriving at its holding, it appears from the opinion that the Court is willing to treat open-platform websites and social media outlets as public fora, requiring content neutrality, a significant governmental interest, and narrow tailoring.  In Matal, the Court’s suggestion that the government speech doctrine should be limited cautions local governments that might attempt to jam private speech into the government speech doctrine in order to avoid First Amendment liability.  Many local governments have recently worked to increase the scope of what constitutes government speech in order to avoid problems associated with content bias, but Matal suggests that practice may be curtailed by the courts.

Packingham v. North Carolina, 137 S. Ct. 368 (2017).

Matal v. Tam, 137 S. Ct. 1744 (2017).