The First Amendment was ratified in 1791.
A federal law banned “disparaging” speech for seventy-one years.
In 2017, the Supreme Court remembered the Constitution.
By Jeff Bayard | Does the Constitution Really Say? — Part 7
This is Part 7 of Does the Constitution Really Say? — a series by Jeff Bayard asking whether the Constitution really says what the courts now say it says. Read Part 1, Part 2, Part 3, Part 4, Part 5, and Part 6.
A Christian baker. A campus speaker shouted down for an unpopular view. A pastor warned by his lawyer that certain sermons could cost his church its tax-exempt status. A father labeled a “domestic terrorist” for raising his hand at a school board meeting. A small-town shopkeeper who took down his own sign rather than be called a name in the local paper.
Every American who has felt the pressure to say only what is currently permitted — lest he be punished by his employer, his university, his platform, or, in some cases, his government — has met the same problem from a different angle. The problem runs from social pressure to corporate enforcement to, in 2011, the United States government itself denying a band the right to register its own name.
Sometimes the Supreme Court forgets. Sometimes it remembers. In 2017, on this question, it remembered.
So this is the question worth asking, plainly. Does the Constitution really say the government can ban speech it calls offensive?
What the Words Meant
The First Amendment, ratified in 1791, reads in relevant part: “Congress shall make no law… abridging the freedom of speech, or of the press.”
The text is plain. Congress shall make no law — not laws that pass strict scrutiny, not laws narrowly tailored to compelling interests, not laws limited to “low-value” categories of speech, but no law — that abridges the freedom of speech. The protection is broad on purpose. The Founders had lived under a Crown that punished printers, pamphleteers, and ministers for what they said about the king. They had read the trial of John Peter Zenger. They knew exactly what it looked like when a government decided which ideas its subjects were permitted to voice.
The Virginia story behind this clause is one many Americans do not know. When George Mason wrote the Virginia Declaration of Rights in 1776, Section 12 declared “that the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.” That language influenced every state declaration of rights that followed. But notice what Mason’s 1776 text did not include: free speech. The press, yes. Speech itself, no.
The omission was repaired by Virginia, not Massachusetts. When Virginia’s ratification convention met in 1788 to consider the proposed federal Constitution, the delegates refused to ratify without an explicit demand that speech be protected. They sent forward a proposed amendment declaring “that the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.” James Madison — a Virginian — carried that demand to the First Congress and drafted what became the First Amendment.
Virginia’s role in protecting speech is bigger than Mason’s 1776 declaration. It is the demand Virginia made in 1788 that put speech in the federal Bill of Rights. The current Virginia Constitution, Article I, Section 12, now protects both — “Freedom of speech and of the press; right peaceably to assemble, and to petition.” The completed sentence Mason did not finish in 1776, Virginia finished in 1788. And the nation has it because Virginia insisted.
What the Words Now Mean
In 1946, Congress passed the Lanham Act — the federal trademark statute. Buried inside it was a provision called the disparagement clause. Section 2(a) prohibited the Patent and Trademark Office from registering any trademark that “may disparage… or bring… into contempt or disrepute” any “persons, living or dead.” For seventy-one years, the federal government wielded that clause as a power to decide which names, slogans, and logos were too offensive to receive trademark protection.
Then it ran into Simon Tam.
Tam was the lead singer of an Asian-American rock band. The band’s members were Asian. They named the band The Slants deliberately, choosing a slur once used against people like them, in order — as Tam put it — to “reclaim” the term and “drain its denigrating force.” In 2011, Tam filed a trademark application for the band’s name. The Patent and Trademark Office denied it under the disparagement clause. Tam sued.
The case made it to the Supreme Court of the United States. In June 2017 the Court ruled against the government, 8–0. Justice Samuel Alito wrote the unanimous portion of the opinion. Justice Anthony Kennedy concurred. The reasoning split four-to-four on certain doctrinal points, but on the holding the Court spoke with one voice: the disparagement clause violated the First Amendment.
Alito’s central sentence is one every American should know:
“It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” — Matal v. Tam, 582 U.S. 218 (2017).
Justice Kennedy, in concurrence, sharpened the principle further. A law that singles out speech because of its viewpoint, he wrote, is “an ‘egregious form of content discrimination,’ which is ‘presumptively unconstitutional.'” And later: “To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so.”
The Court did not say slurs are harmless. It did not say words don’t matter. It said the government may not be the judge of which ideas are offensive enough to be denied federal benefits. That is the bedrock principle. Eight justices agreed.
What Happened Next
Matal answered the government question. It did not answer the broader cultural question, and the piece must be honest about that.
The disparagement clause is gone. But the climate that allowed Congress to write it in 1946 — and the Patent Office to enforce it for seventy-one years — has not gone away. Campus speech codes still exist. Corporate harassment policies stretch the word “harassment” to cover ordinary political disagreement. Social-media platforms, which now function for many Americans as the public square, enforce content rules that no government could enforce directly without running into Matal v. Tam. Christians and conservatives have felt every one of these pressures, often without realizing that the legal floor and the cultural enforcement are not the same thing.
Matal drew the legal line. The cultural line is still being drawn, every day, in places the First Amendment does not directly reach. The article you are reading exists in part because that distinction is worth holding clearly. The Court can stop the government from punishing your speech. It cannot, by itself, restore a culture in which Americans expect to disagree and remain friends.
The Strongest Argument the Other Way
The strongest argument against the Matal ruling has real force, and it deserves a fair hearing. Slurs cause pain. Words shape culture. A pluralist society that values dignity for all its members has a legitimate interest in not lending its official credentials — a federal trademark registration is, after all, a stamp of government recognition — to language that targets groups for ridicule. The disparagement clause was not crazy. It was the product of decades of well-intentioned thinking about how a pluralist society protects its vulnerable members from the corrosive effects of public contempt.
But the Framers anticipated exactly this temptation. They built into the Constitution a mechanism for legitimate change: Article V, the amendment process. If Americans want a constitutional exception for “hate speech,” Article V is the path — debated, voted, ratified by the people through their representatives. The illegitimate path is the other one. Leave the First Amendment unchanged on paper while regulators, university administrators, corporate platforms, and ambitious prosecutors quietly carve out exceptions by policy and pressure. The Court in Matal refused to participate. Eight justices, with no dissent on the holding.
Did God Really Say?
Solomon wrote:
“Death and life are in the power of the tongue, and those who love it will eat its fruit.” — Proverbs 18:21
The Bible takes the power of words more seriously than most modern speech codes do. It does not deny that words can wound, mislead, inflame, or destroy. James warned that the tongue is a fire, “a world of iniquity… It defileth the whole body, and setteth on fire the course of nature.” The Bible knows what words can do.
And yet — and this is the point — the biblical response to the power of words is not government censorship. It is truth-telling, reproof, repentance, and discipline within communities of conscience. “A soft answer turneth away wrath, but grievous words stir up anger.” “Let your speech be alway with grace, seasoned with salt, that ye may know how ye ought to answer every man.” The discipline of the tongue is the work of the person, the family, the church, and the conscience. It is not the work of the state.
The Founders knew this. They wrote the First Amendment in a culture that took both the power of words and the danger of government control over them seriously. They chose to restrain government, not speech. They left the harder work — the work of speaking truth in love, of governing one’s own tongue, of building a culture in which difficult things can be said with grace — to the people themselves.
That work is harder than passing a law. It is also the only work that does not consume the very freedom it claims to defend.
What the Citizen Does
Read the document. Know what it actually says. When you are told that the government may punish, refuse benefits to, or otherwise burden speech because that speech is offensive, ask the question this series is named for. Does the Constitution really say that?
There is no better place to begin than Constitution 101 and the other free online courses from Hillsdale College. Hillsdale accepts no state or federal taxpayer funding — not even student aid — which keeps its teaching independent of political pressure. Dozens of courses, no cost, self-paced. Start with Constitution 101.
For Virginians, there is a second place to look. Article I, Section 12 of the current Virginia Constitution protects both speech and press together — finishing the sentence George Mason began in 1776 and that the Virginia ratification convention demanded the federal government honor in 1788. Virginia’s Bill of Rights, in the broader characterization A.E. Dick Howard gave it in his Commentaries on the Constitution of Virginia, has a vitality independent of the federal Constitution. The federal floor matters. Virginia’s floor matters too.
The next piece turns from the First Amendment to the Fourth. Katz v. United States (1967) asked whether the government needed a warrant to wiretap a public phone booth. The Court said yes — but the phrase Justice Harlan used to justify the ruling, “reasonable expectation of privacy,” was not in the Fourth Amendment. It has become the test the Court uses to decide what counts as a search. From religion to speech to the security of your person, papers, and possessions, the pattern this series has tracked is the same.
