Does Gerrymandering Violate the 1st Amendment?

Does Gerrymandering Violate the 1st Amendment?
AP Photo/Denis Poroy, File

On Monday morning, the Supreme Court agreed to hear Gill v. Whitford, a blockbuster case that could curb partisan gerrymandering throughout the United States. Shortly thereafter, the justices handed down two excellent decisions bolstering the First Amendment's free speech protections for sex offenders and derogatory trademarks. While the link between these two rulings and Whitford isn't obvious at first glance, it seems possible that both decisions could strengthen the gerrymandering plaintiffs' central argument—and help to end extreme partisan redistricting for good.

The first ruling, Matal v. Tam, involves “a dance-rock band” called the Slants that sought to trademark its name. Simon Tam, the founding member, chose the name precisely because of its offensive history, hoping to “reclaim” the term. (He and his fellow band members are Asian American.) But the Patent and Trademark Office refused to register the name, citing a federal law that bars the registration of trademarks that could “disparage … or bring … into contemp[t] or disrepute” any “persons, living or dead, institutions, beliefs, or national symbols.” (The same rule spurred the revocation of the Redskins' trademark.)

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