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Full-Text Articles in Intellectual Property Law
Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert
UF Law Faculty Publications
This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as …
Beyond Trademarks And Offense: Tam And The Justices’ Evolution On Free Speech, Clay Calvert
Beyond Trademarks And Offense: Tam And The Justices’ Evolution On Free Speech, Clay Calvert
UF Law Faculty Publications
In Matal v. Tam , the Supreme Court threw out the “disparagement clause” of the Lanham Act, the federal trademark law, because trademarks are private speech and thus regulating them based on government determinations of offensiveness violates the First Amendment. The solid outcome here contrasts with the narrow, incremental results in some other recent First Amendment cases that reached the Court.