First Amendment Supreme Court Cases: 2023-2024 Term

U.S. Supreme Court with flag flying out front

When questions arise about whether First Amendment rights have been violated, the Supreme Court is the final authority. Its rulings interpret how these rights apply in real-life situations.

In this post, we highlight First Amendment Supreme Court cases of the 2023-2024 term. It will be updated with additional information and analysis as the term progresses.

Explore key First Amendment Supreme Court cases of the 2023-2024 term 

Free speech and social media are the overarching theme of the 2023-2024 Supreme Court term.

The court considered questions including:

  • How do you prove that you are being punished in retaliation for using your First Amendment right to petition the government?
  • Does the government violate the First Amendment when it pressures others not to do business with a company based on that company’s politics?
  • When does the government cross the line when talking to social media companies about moderating the content on their platforms?
  • Can the government regulate how social media platforms moderate content?
  • When can public officials block constituents on social media?
  • What defines an “official” government social media account?
  • Who controls the use of an individual’s name for commercial purposes?

How do you prove that you are being punished in retaliation for using your First Amendment right to petition the government? 

The First Amendment protects our right to petition the government for a redress of grievances without fear of being punished. Gonzalez v. Trevino, which was decided on June 20, clarifies how someone who claims they were retaliated against for petitioning must prove their First Amendment right was violated. The court’s ruling makes it easier for them to make that case.

In 2019, Sylvia Gonzalez was a new city council member in Castle Hills, Texas, a small town with an elected mayor and a five-person city council. A major part of Gonzalez’s election campaign was a promise to push for the removal of the council-appointed city manager.

Upon being elected, she organized a petition to remove the city manager. It quickly got 300 signatures. A resident introduced it at Gonzalez’s first council meeting, and the petition document became official government property.

A heated public discussion lasted for two days of council meetings. At the end of the second day, Gonzalez started to gather her belongings when she was approached by the person she defeated in the election. She left her binder in her workspace and stepped away to talk to the former council member.

While she was gone, the mayor and police captain – who is appointed by the city manager – looked at Gonzalez’s binder. They called Gonzalez back and asked her where the removal petition was. She claimed the council secretary had it. The mayor and police chief told Gonzalez it was in her own binder. Gonzalez immediately handed the petition to the mayor.

The next day, the police department began an investigation. Gonzalez was arrested two months later under a law against anyone who “intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” Under Texas law, Gonzalez could be immediately removed from the city council. Six Castle Hills residents filed a lawsuit seeking her removal from office.

The district attorney ultimately decided not to move forward with the case, but Gonzalez had had enough. She resigned from office and sued, saying the mayor, the police chief and a specially appointed detective conspired to violate her First Amendment rights.

A federal district court ruled in Gonzalez’s favor. A United States Court of Appeals ruled against her. It noted a 2019 U.S. Supreme Court decision, Nieves v. Bartlett, which says that as long as police have probable cause that a crime was committed, they can arrest someone — even if it appears the arrest is in retaliation for exercising First Amendment rights. Someone can challenge such an arrest if it is for an on-the-spot crime, where officers use their discretion and may violate someone’s rights in doing so.

Gonzalez argued that the appeals court misinterpreted the Nieves case by not allowing her to present evidence that others in her situation would not have been arrested. Even if the police had probable cause to arrest her, she says, she should be allowed to show she was singled out because she had exercised her First Amendment rights in the past. In this case, Gonzalez argued:

  • In the 10 years before her arrest, there had been 215 other arrests for violation of the government documents statute in Texas. But none involved temporary misplacement of a document (most were for making or using fake IDs).
  • There is evidence that the mayor, police chief and detective conspired to have Gonzalez arrested so she could be removed from the city council.
  • She was booked and spent a night in jail while handcuffed to a metal bench for a minor charge, even though she turned herself in. Others in that situation would have been booked and allowed to go home pending trial.

The government officials argued that probable cause is all that is necessary in this situation where an arrest warrant is issued. The exception from the Nieves case doesn’t apply to Gonzalez. Further, even if it did apply, Gonzalez would have to demonstrate that others were not arrested even though they clearly engaged in similar actions (which Gonzalez cannot do because no such cases have ever been alleged in Texas).

The court ruled for Gonzales.

The opinion agreed with Gonzales’ argument that she need only show objective evidence that she was arrested when others would not have been – not that she had to show specific instances where police had not arrested others for the same action. The court ruled that “the demand for virtually identical and identifiable comparators goes too far.” It also agreed that the evidence she had presented – 215 arrests under this law, almost all of which involve creating or possessing false identification but none for possessing government documents without permission – indicate it is likely that police used their judgment to decline to arrest someone in a similar situation to Gonzales in the past and also more likely her arrest here was in retaliation for exercising her First Amendment rights.

The court sent the case back to the District Court to review the facts of this case pursuant to that standard.

Does the government violate the First Amendment when it pressures others not to do business with a company based on that company’s politics? 

The National Rifle Association is one of the largest and most influential nonprofit organizations in the country. A May 30, 2024, decision from a unanimous Supreme Court in its favor will increase First Amendment protections for not only the NRA, but all nonprofit organizations – as well as for-profit corporations and people – against retaliation by government officials.

The NRA and its members often exercise their freedoms of speech, assembly and petition to support the rights of gun owners. The First Amendment protects them against government retaliation for expressing their support for the Second Amendment.

For instance, it would violate the First Amendment if the Internal Revenue Service canceled the NRA’s nonprofit tax status because of its political views, or if the state of New York took away its corporate charter.

Former New York Department of Financial Services Superintendent Maria Vullo knew this. She oversaw an agency that regulated all banks and insurance companies doing business in the state. She took a more indirect route in opposing the NRA: She went after the companies doing business with them. That included:

  • Starting investigations into two major insurance carriers who provided insurance policies to NRA members relating to the members’ gun ownership because the policies covered intentional acts and paid for criminal defense costs. Gun owners enlisted these insurance companies because the NRA was not licensed to provide insurance in New York. These investigations ended with the companies agreeing to end their relationships with the NRA. A third insurance carrier voluntarily did the same.
  • Meeting with other insurance carriers, including the NRA’s.
  • Issuing official letters to all licensed banks and insurers doing business in New York. The letters encouraged them to review their relationships with the NRA. She also publicized these letters.

Several insurance carriers and banks ended their relationships with the NRA. Others said they were afraid to do business with the NRA because they didn’t want to attract government attention.

In the case of the National Rifle Association of America v. Vullo, the gun group filed a lawsuit in federal district court in New York, which ruled in their favor. A United States Court of Appeals ruled for Vullo. The Court of Appeals held anything she said or did was government speech that does not violate the First Amendment or were legitimate law enforcement actions under her authority.

The NRA acknowledged that Vullo is free to express her views but not to use her government authority to censor those she disagrees with – either directly or indirectly.

Vullo argued that she does not forfeit her own free speech rights just because she is a government employee. She is free to make statements opposing the NRA. Vullo also separates those public remarks from the government’s investigations of insurance carriers and banks doing business with the NRA. She says these investigations are a legitimate part of her job in that she was investigating actions that would violate the law regardless of who was involved.

The Supreme Court heard oral argument on March 18 and issued a unanimous decision written by Justice Sonia Sotomayor in favor of the NRA on May 30.

Sotomayor reiterated that government officials cannot coerce private parties in order to punish unfavorable views. She agreed that Vullo is free to criticize the NRA and that Vullo is free to pursue violations of New York insurance law but said that Vullo could not use her power to threaten enforcement actions against insurance carriers and banks to pressure them into not doing business with the NRA. As she stated in her opinion: “[a]t the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.”

The court agreed with the NRA’s argument that the test for differentiating between permissible government speech or regulation on one hand and impermissible government coercion on the other could be found in its 1963 decision in Bantam Books, Inc. v. Sullivan, a case where a state commission violated the First Amendment when it used its power to pressure would-be distributors of books that “threatened youthful morals.” Sotomayor looked at factors similar to those used in the Bantam Books case, with some slight modifications:

  • The actual regulatory authority of the regulators over the recipients of their messages.
  • The word choice and tone used by the regulators.
  • Whether the recipients of the regulators’ messages perceived those messages as a threat.
  • Whether the regulator’s messages made direct reference to adverse consequences.

Applying these standards, the court found that there is credible evidence that Vullo violated the NRA’s First Amendment rights. Vullo had direct regulatory authority over the insurance carriers and banks operating in New York state. She used language that would normally be understood as a threat. Her language was perceived by the carriers as a threat because she made reference to her authority, saying she might be less interested in pursuing certain minor infractions if the companies stopped doing business with the NRA. She issued official letters to the companies reminding them to consider their “reputational risks” and also issued official press releases criticizing the NRA. The minutes of a meeting of the board of directors of at least one company indicated that they understood these to be threats and terminated their relationship with the NRA.

Sotomayor rejected Vullo’s argument that there was no coercion because she had targeted actual business relationships that were not expressive in nature, as “[u]ltimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.”

The case was sent back to the United States Court of Appeals for the Second Circuit to reevaluate. Based on the Supreme Court’s decision, it is likely the court will reverse its earlier ruling dismissing the case against Vullo. But it may still dismiss the case because Vullo, as a government official, has “qualified immunity” under the law making it very difficult for her to be sued for First Amendment violations.

When does the government cross the line when talking to social media companies about moderating the content on their platforms? 

Murthy v. Missouri, decided on June 26, involves Missouri, Louisiana and five individual social media users who say their First Amendment rights were violated when social media platforms removed or downgraded their posts. The reason? They say it was because of government pressure, primarily relating to the issues of the moment such as the COVID-19 pandemic and the 2020 presidential election. In certain instances, the social media platforms even terminated some user accounts entirely (though the accounts were later reinstated).

Social media platforms have their own free speech rights to moderate content. But the lawsuit argues that the federal government forced the platforms to do so. The suit says 67 federal government offices and employees’ unrelenting pressure and threats of potential legal action if the platforms did not comply forced the platforms to moderate specific content.

A federal court ordered the White House, specific officials and 14 federal government offices to stop meeting with the companies, flagging content for potential moderation, communicating with social media at all about removal of content, taking any overt action to force companies to act and from following up on requests to the companies.

An appeals court revised the order to ban only certain White House officials and a few federal government agencies from “coercion” of social media platforms to remove or suppress content.

The federal government asked the U.S. Supreme Court to prevent this narrower order from going into effect and to hear the case. The court agreed to stay the order and heard oral argument on March 18.

The states argued that the government is effectively censoring certain social media posts and users through its unrelenting pressure that ranges from mere encouragement to implicit and explicit threats of legal action. They argued that the government and social media companies are conspiring to censor posts and terminate users in violation of those users’ First Amendment rights.

The federal government countered that it takes more than mere conversations to violate the First Amendment. They said it does not violate the First Amendment for a social media company to grant a government request. It only violates the First Amendment if it is clear that the company really had no other choice, something that occurs only in limited circumstances (and that the government says did not occur here).

The case was poised to determine the extent to which the government can advise social media platforms in their efforts to moderate harmful content.

Government officials and journalists have long held conversations about the danger of publishing certain facts, opinions or stories. But these have generally been voluntary conversations. The right of free speech limits the government from coercing a media outlet into publishing or not publishing, broadcasting or not broadcasting, moderating or not moderating. This enables the media to present a variety of facts and opinions on matters of public concern without the government dictating what is true and false, acceptable and unacceptable.

The case had the potential to disrupt this balance. A ruling for the federal government would invite greater intrusion into social media moderation and potentially – though admittedly unlikely – further intrusion into the editorial decisions of print and broadcast journalists. A ruling for the states and social media users would be a win for free speech because the platforms would retain their ability to moderate content free from government coercion but, depending on how they engage in this content moderation, could also lead to a rise in unchecked misinformation online.

A 6-3 decision favored the government. Justice Amy Coney Barrett wrote the opinion based on the states’ and users’ lack of “standing” to bring the lawsuit because the government’s actions did not cause any actual legal injury that the courts can fix. Justice Samual Alito’s dissenting opinion was joined by joined by Justices Clarence Thomas and Neil Gorsuch.

The court ruled there was no “case or controversy” here because social media platforms voluntarily moderate every day of massive amounts of content they find false or misleading. Their own content moderation policies regularly result in placing warning labels on posts, making posts less visible, deleting posts entirely, and even banning users outright, all without government coercion.

But the states and users were not suing the social media platforms. As of the time the case was argued, social media companies have free latitude to moderate content without government interference. After all, social media companies are private businesses that are not violating the First Amendment when engaging in content moderation.

The states and users sued the government, which Justice Barrett described as “one step removed” from the point at which these content moderations decisions occurred. In order to have standing to sue the government, the states and users would have to conclusively show the social media platforms’ decisions were directly traceable to government coercion and would continue into the future.

But the court found no evidence to connect these dots. There is evidence that the social media platforms moderated certain types of content – even certain viewpoints – more frequently than others and that the government pressured social media platforms to moderate content. But there is no evidence that the social media platforms moderated content because the government told them to – at least not in the large-scale way the states and users claim.

Since no evidence shows a connection between government pressure and a content moderation decision, the states and users cannot show a likelihood that the government will coerce social media platforms into moderating content in the future. Like the old saying, past results are not an indicator of future performance, especially where (1) the past evidence isn’t really evidence and (2) the supposed government coercion of social media sites appears to have ended in 2022.

This does not mean that that case is over. The court sent the case to the lower courts to review the case consistent with this ruling.

But it will be difficult for the states and users to come up with the specific evidence required.  People who feel they are being treated unfairly in the future will have to be more specific in demonstrating the connection between specific instances of government pressure and corresponding content moderation decisions. They’ll have to show that both acts are ongoing and likely to continue. It’s just not enough to broadly claim a widespread campaign of government pressure of social media platforms.

Can the government regulate how social media platforms moderate content? 

The Supreme Court ruled in two cases of state laws that would prevent social media platforms from restricting a user or post based on the viewpoint being expressed.

What was at stake — and remains in question even after the court’s ruling? The future of social media as we know it.

Social media platforms are private businesses that can moderate their content without violating the First Amendment. The First Amendment, in fact, protects them from the government compelling their speech in any way, which includes being forced to maintain content or carry speakers when the platforms don’t want to. The states that passed these laws, Florida and Texas, and those supporting them, argued that there are valid reasons for regulating social media. If the court accepted these arguments, it would have opened the door to widespread regulation of social media, such as limiting or preventing minors from accessing these platforms or banning a platform from operating entirely.

Moody v. Netchoice LLC looks at Florida Senate Bill 7072, which prohibits large social media platforms from banning political candidates or “journalistic enterprises” and from deleting or minimizing the visibility of posts by or about them, among other provisions.

Netchoice LLC v. Paxton looks at Texas House Bill 20, which prohibits large social media platforms from taking any action to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression” in user posts. The law also requires these platforms to notify users and the government about how they moderate content.

Federal courts were divided on whether the laws violate the First Amendment. An appeals court upheld the Texas law because the state has an interest in regulating what it called the social media platforms’ “censorship” of speech. Meanwhile, an appeals court in Florida declared that SB 7072 violated the platforms’ First Amendment rights.

Netchoice, an internet trade association that challenged the laws, argued that social media platforms have free speech rights that include the right to share the speech of its users. The government cannot tell Facebook what content to carry any more than it can tell Fox News or The New York Times what to print, the group says. Netchoice argued the laws violate the First Amendment because they require those platforms to favor certain users over others. (Legislators in each state said that the laws were intended to protect conservative speakers). Netchoice also pointed out that the laws apply only to larger platforms.

The states argued that their statutes do not violate the First Amendment because they regulate economic activity, not speech. They said they are primarily anti-discrimination efforts designed to ensure all speakers are treated equally. Finally, they argued that social media regulations are consistent with the First Amendment, just like regulations on common carriers like telephone companies, because they are open to everyone and essentially required to communicate on matters of public concern.

Related: Why Arguments for Regulating Social Media Fail the First Amendment Test

In a decision issued on July 1, the court overturned both lower court decisions without directly answering the First Amendment questions involved. Justice Kagan held that the lower courts had not done enough fact-finding.

The court said that both sides focused too much on how the law applies to moderating social media posts and users and not enough on other potential applications of the law, such as whether it permits filtering of Gmail messages, display of customer reviews on Etsy, management of Venmo payments, etc., all of which are services that could, by definition, fall within the provisions of these two state laws.

In her opinion, however, Justice Kagan did give some guidance on the application of the First Amendment to social media platforms. She held that social media platforms engage in First Amendment-protected activity when they carry other users’ speech, much like the court has previously held with regard to newspapers, newsletters, cable television systems, and even parades.

The basic principles of the First Amendment do not change because they are applied to new media. This means that the government cannot force social media platforms to carry certain content just to ensure that all viewpoints are heard — the platforms can pick and choose, prioritize and deprioritize as they like. In fact, this protection is, if anything, more important for social media, whose entire operation is based on curating a feed for each user’s interests.

This First Amendment analysis seems to indicate that, at a minimum, the Fifth Circuit got it wrong in upholding the Texas law in its entirety.

The court sent the case back down to the lower courts to determine whether the laws should be overturned entirely on a “facial challenge” or whether they should stay on the books and be challenged “as applied,” which would involve piecemeal challenges to individual sections of the law and by individual platforms, each based on their own unique circumstances.

A facial challenge to a law strikes it from the books entirely but requires finding that the law has a substantial number of unconstitutional applications compared to few constitutional ones. Courts are generally hesitant to strike down laws entirely because they want to allow laws to be implemented if at all possible.

Several other justices agreed and stated their own views:

  • Justice Barrett emphasized the high bar for overturning a law altogether.
  • Justice Jackson would not have addressed the First Amendment issues at all.
  • Justice Thomas went further than Justice Barrett in disfavoring facial challenges, offering more detail behind his reasoning and arguing that social media platforms could be considered common carriers and regulated without violating the First Amendment.
  • Justice Alito (joined by Justices Thomas and Gorsuch) would actually go a step further, questioning whether social media platforms that solely compile user-generated content are even protected by the First Amendment at all.

It remains to be seen whether the Texas and Florida laws will be struck down in full — or the subject of individual lawsuits for years to come.

Can public officials block constituents on social media? If so, when? 

Two First Amendment Supreme Court cases decided March 15 relate to when a government official can block the people they serve from following and posting comments on an official’s social media accounts.

The court clarified when a public official is engaged in “state action” via their own, non-official social media account but did not decide whether the officials in these cases met that standard.

The outcome of these cases may reshape officials’ use of social media, especially at the state and local level where they are more likely to also be neighbors (and Facebook friends) with their constituents.

Rulings for the constituents could force greater social media interaction between officials and members of the public. It could also mean that those officials explicitly create two social media personas – one for official business and one for personal business – or simply refuse to have any.

Rulings for the officials would mean that they could move more of their public communications to their social media accounts and refuse to interact with people who disagree with them there.

The First Amendment means the government – federal, state or local – can’t limit freedom of speech or petition. So, the government can’t block people on social media. But private people can block others on social media.

Determining when a government official blocking someone is a “state action” when the First Amendment applies or a private action when it does not can sometimes be difficult. After all, government officials have a private life; they aren’t always on the job.

Courts tend to look at whether a government representative was acting in an official capacity or not. Social media has made this distinction ever harder.

MICHIGAN CITY MANAGER BLOCKS COMMENTS: LINDKE V. FREED 

Case in point: James Freed was a private person when he created a Facebook profile that he later converted to a “page” to allow more followers. He chose “public figure” as the category for his page.

In 2014, Freed became the city manager of Port Huron, Mich. He included the city contact information on his Facebook page. He posted a mix of personal and professional content, including posts about how the city was handling COVID-19.

Port Huron resident Kevin Lindke didn’t agree with the city’s handling of the pandemic. So, he exercised his First Amendment rights to speech and petition by negatively commenting on Freed’s posts. Freed deleted many of these comments and eventually blocked Lindke from following him on Facebook.

Lindke sued, alleging a violation of his First Amendment rights. District and appeals courts both ruled in favor of Freed. They said he was not acting as a government official when he banned Lindke from his personal Facebook page.

Lindke turned to the Supreme Court. He argues that courts should assume that public officials are acting in a government capacity from the start because of the potential for abuse of our First Amendment rights. He says whether an official is using actual authority shouldn’t matter as much as the impression that they are.

Freed responds that he didn’t operate his Facebook account because the city told him to. In fact, he had the account before he became city manager. He didn’t spend city funds to maintain it or have staff update it. He simply posted city-related content to his personal page on occasion.

CALIFORNIA SCHOOL OFFICIALS BLOCK PARENTS ONLINE: O’CONNOR-RATCLIFF V. GARNIER 

The government officials in this case had separate social media accounts. One was solely dedicated to their official government duties. But they weren’t required to have an official page, and they weren’t authorized to speak on behalf of the government through that page.

Michelle O’Connor-Ratcliff and T.J. Zane each ran for positions on the Poway (California) Unified School District board in 2014. They had private Facebook accounts for family and friends. They created separate Facebook and Twitter accounts to promote their campaigns for office. Upon election, they converted those campaign accounts to official accounts used to communicate important school-related information and get input from parents.

Christopher and Kimberly Garnier, two local parents, frequently posted negative comments to these official accounts. O’Connor-Ratcliff and Zane deleted or hid many of these comments and used a “word filter” to automatically block certain comments. They finally blocked the Garniers from posting to these official pages.

The Garniers sued, just like Kevin Lindke. But this time two courts ruled the officials’ blocks were state action. The courts said in creating these specific accounts and devoting them exclusively to discussion of their school board duties, they had created a public forum for speech.

The school board members argue that they are not engaged in state action even through these official accounts. They say the accounts are not authorized, funded or operated by the city, school board or school district. They say the pages are essentially ongoing campaign pages. They claim that no reasonable person would mistake them for official government accounts.

The Garniers argue that express authorization was not required for these to be official government accounts, especially when so much public business is conducted online. In this case, the fact that the officials had separate accounts with no personal content whatsoever is evidence supporting the Garniers’ claim.

COURT CONSIDERATIONS ON SOCIAL MEDIA BLOCKS 

These cases were argued separately on Oct. 31, but there was a significant overlap between the two. The justices seemed to be deciding which of the two standards used by the lower court in these cases should apply across the board.

In one option, a social media account would be an official public account if it is part of the public official’s duties set forth in law and used under authority granted by law. This is a standard set by the appeals court in the case of the Michigan city manager.

Another option is a more flexible approach that looks at the general appearance of the account. This is the standard adopted by the appeals court in the case of the California school board members.

In opinions issued on March 15, the court took the former approach via a unanimous opinion written by Justice Amy Coney Barrett in Lindke v. Freed.

Justice Barrett acknowledged that state action is easy to spot in some cases. When a police officer arrests you, they are acting on behalf of the state.  But these cases involving public officials acting as private citizens are less clear. There’s a good reason for this: Public officials are not always “on the clock.” They are entitled to be private citizens and express their own opinions, free from government infringement of their First Amendment rights. Though the court did not explicitly reach this conclusion (because it didn’t answer the question of whether the act of blocking someone on social media infringes their First Amendment rights), forbidding public officials from blocking people from their private social media accounts would likely violate their First Amendment rights.

The issue is especially unclear when it comes to social media, where a public official uses their personal social media account to communicate a wide variety of information from the clearly personal to matters of public concern.

The court said the best way to separate personal from public is through the two-step process used by the United States Court of Appeals for the Sixth Circuit in deciding this case for James Freed. To be state action, the public official must:

  1. Have authority to speak on the government’s behalf.
  2. Be using that authority when speaking on social media.

The first part requires more than having the ability to speak for the government. It must be part of the public official’s job to do so. In other words, as city manager, Freed must be authorized to speak on the subjects at issue in the posts he blocked Kevin Lindke from seeing. (And if he blocked Lindke generally, he must unblock him and only delete Lindke’s comments on posts in which Freed was engaged in state action under both parts of this two-part test.) Whether the public official has the authority to speak on a given issue depends on the facts involved. That authority most likely comes from laws, regulations and working rules of the government. But it can also come from custom and usage that has been allowed over time.

The second part is almost entirely dependent on context. If a public official designates a social media account as “official” or fills it with references to their government position, they’re more likely to be engaged in state action when they make statements on matters of public concern related to their job (as long as they are authorized to do so). On the other hand, the account is more likely to be presumed private if they clearly mark it as a private account. But the court was quick to note that self-designation is not conclusive, it just creates a very strong presumption that could be overcome based on the actual content being posted and the tone with which it is written. A post that appears to announce a government policy is more likely to be “state action” than a post commenting on that policy or other public issues.

The court stopped short of saying whether James Freed himself was engaged in state action, instead sending the case back to the lower courts to make that decision. And, because the United States Court of Appeals for the Ninth Circuit used a different standard in deciding O’Connor-Ratliff v. Garnier, the court issued a short opinion that simply sent that case back to the lower courts for further consideration using this newly adopted standard.

Does the First Amendment protect registering “Trump Too Small” as a trademark? 

Steve Elster, an attorney based in California, filed a trademark registration for the term “Trump Too Small” to be used on clothing. The slogan originated from a comment about then-candidate Donald Trump’s hands during a 2016 presidential primary debate.

The United States Patent and Trademark Office rejected this application. It said federal trademark law prohibits any trademark that includes a specific living person’s name without that person’s written consent. Elster had no connection to or permission from Trump.

On June 13, 2024, the Supreme Court unanimously agreed with the trademark office, though the justices were sharply divided as to why.

The trademark office argued the law against using another person’s name does not turn on whether the person is portrayed in a positive or negative light. It argued that such a viewpoint neutral condition is not a restriction on speech, but rather a condition to get a government benefit. For this reason, the trademark office said it only needed to show a “reasonable basis” for the restriction, which is easy to justify: It is necessary to avoid misappropriation of someone’s name or likeness. That’s important, particularly when someone wants to make money from their own likeness.

Elster countered that the limit on trademarking names is not actually viewpoint neutral. Practically, it only restricts critical views since no one would ever consent to someone else using their name in a negative way. A law that favors some viewpoints over others almost always violates the First Amendment.

The Supreme Court has held in two recent cases that separate sections of the federal trademark laws failed this test. In the 2017 case of an application to register the band name The Slants (Matal v. Tam) and the 2019 case of an application to register the clothing line FUCT (Iancu v. Brunetti), the court held, in part, that trademarks are the registrant’s speech, not the government’s.

Elster also argued that protecting someone’s right to control the use of their name and likeness may be compelling, but he said prohibiting all uses of that name goes too far and prohibits the sort of political speech he was engaged in here.

COURT AGREES WITH LIMITS ON TRADEMARKING NAMES 

The November 1 oral argument of this case indicated the justices were leaning toward a decision in favor of the trademark office. At least seven of the nine justices questioned whether the rejection of this trademark application restricts free speech at all. Elster can still make and sell merchandise with the “Trump Too Small” slogan. He just can’t get the government to prevent others from doing the same.

The justices further questioned whether requiring consent to use someone’s name in a trademark discriminates on the basis of viewpoint. They noted a lack of evidence to support Elster’s claim that this unfairly targets negative use of a living person’s name or likeness as part of a trademark. The justices also questioned whether Donald Trump (or anyone else) would consent to someone else making money from their name or likeness even in a positive way.

In the final ruling, all nine justices agreed that the ban on registering trademarks with the name of a specific living person without that person’s consent does not violate the First Amendment. All were clear that, while Elster cannot trademark “Trump Too Small,” he can still sell merchandise with the phrase on it – he just won’t be the only person allowed to do so.

But the justices wrote several opinions with very different rationales. This means the impact of this decision is limited to this case alone. It provides little to no guidance on how the court might rule about other sections of trademark law.

Justice Clarence Thomas wrote the majority opinion in which he was joined by Justices Samuel Alito and Neil Gorsuch. He said that the “names ban” is viewpoint neutral because “[n]o matter the message a registrant wants to convey, the names clause prohibits marks that use another person’s name without consent. It does not matter ‘whether the use of [the] name is flattering, critical or neutral.’” Even when a desired trademark portrays a name in a positive light, the person included might not provide consent – perhaps because they might not be reachable at all.

The trademark office is rejecting applications because of the wording involved – the inclusion of a name. Justice Clarence Thomas acknowledged that such content-based restrictions on speech are generally not upheld but found no problem with the names ban because of the history and tradition of government regulation of trademark registrations.

While agreeing with the result, other justices took issue with the rationale of relying on history and tradition. They found that the names ban is justified because it serves the important goal of avoiding customer confusion and does so in a properly limited manner by simply preventing the trademark office from issuing registrations for these names while still allowing people to engage in the same speech (again: Elster can still make “Trump too Small” shirts, he just won’t be the only one allowed to make them).

Kevin Goldberg is First Amendment specialist for the Freedom Forum. He can be reached at [email protected].

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We’re pretty vocal about freedom of speech.