that conclusion is inescapable regardless of the doctrine of the standard of of scrutiny applied because banning registration of disparaging trademarks is speech have changed as it appears so for books on both of those actually there's considerable reason to revisit the question which arguably again is under commercial speech and now your honor we have submitted is that it is a apart messages that are with respect to a wide range of vices of which the united states government does not approve of alcohol tobacco and sexual practices also are the sorts of moral issues including disparaging material that is in the register of copyright that there is a circle c just as a registered trademark and in my client's case would be our circle are if if it were allowed by the p t o the colleague does not assume that the fact that it had a that there's a depository requirement in the library of congress for the registration of the copyright is i think widely understood as something far less than a form merely a technical requirement that is a prerequisite for registration and no more than that  unconstitutional condition even where even where there is not a standing that the know you're on why now because of any of them the mere fact that government is involved in the administration of a writ of the legal regime does not make any aspect of that regime of subsidy and that is the case here unlike i just from general revenues it can be said not in the most accurate accounting sense that the system is now applicant funded no one would even attempt to be able to trace dollar for dollar what aspects of the trademark operation of the p t o system comes from application dollars and so i'm not i'm not making that argument that it's possible to but of the cases are clear that it is not it is unnecessary to this this would not cap this would not qualify as a subsidy it's merely part of it's part of a government office and it's largely funded by applicants and to the extent that government is a gauge in the activity of registering trademarks maybe once it was it registers  name because they can't trademark it or they could going to continue to use the elsewhere as well that frankly is a decision that they would have to face at that time if there's no question that well i'm going to put that aside i mean assume that i think the benefit you get here is equivalent to federal funds i know you disagree my purposes and that the question then becomes are those conditions so only rents that it with worse to the most of them much more important question is the hundreds or thousands of millions of other trademark advocates who are not as well spoken not as assertive not as fortunate to have regard councils mr tabb who will not choose trademarks rich it is a chilling of speech it's not a ban on speech but it is written by by virtue of withholding the the full benefit of vailable to any any application under the trademark or under the  denied police protection he's still free to go into his back yard and have a speech nonetheless the government may not deny a parade rally or police protection or a microphone to that speech or that he's free to still have a speech but that speech is impaired that speech is not of the same quality and the only real interest and when that speech is being denied him solely on the basis of the content of the message of the precise nature of what it is he wishes to say that is somewhat different that is a somewhat different inquiry and that and it is a different one because it is definitely a different one but but but but the the it is truly critical here that that what is going on here is the viewpoint selection and not the topical selection it's not merely a question of whether or not the choice by our client to make a comment about past ethnic slurs or present slurs in a choice of a band that is being prohibited the fact that it is perceived as an ongoing ethnic slur it is a viewpoint that is being perceived as a devastated feelings broken hearts out i mean that was a cross burning case it doesn't get much worse than that certainly in terms of that keeping it real with the provisional government benefit and again i know you would disagree with that but assume that this is a provision program that gives you better access to federal courts you can only register trademark that meets certain conditions how is that distinguishable from usa id rust the library case in all of this case because in this case the but there's no burton you either you can go out and use this as word anywhere you want if you try to use it within the confines of the government run to straighten program however you cannot because it doesn't meet the conditions right so it's already  teachers when you say you can use the speech you just can't use it under the confines of the program what you're saying is you can just you can use it just not as well you can go outside of yourself box in your backyard you're being deprived of a benefit based on viewpoint and that's oriented it isn't that much more than that isn't the purpose of the of the trade mortgage statute designed to to to have some sort of regulation on measurement of behavior in the marketplace yes but that behavior concerns tif members of the court thank you for the opportunity to address you today judge judy if i may i'd like to turn to the question that us because i believe it's really at the heart of this case how do we sussed out what i think is a fairly complex set of cases about government  and it's essentially i think fair to say an extension of rest in that case the last as clearly describes rust as government speech the title ten funds were a government program designed to accomplish a particular thing  selecting grantees it was find that the restrictions on those grants included incidental restrictions on speech differences speech was itself the government's point of view in the last guy as the court made it crystal clear that that line of cases and the court wrote neither the latitude for government speech nor its rationale of like the subsidies for private speech in every instance as we have pointed out it does not follow that the point based restrictions are proper when the government does not itself speak or subsidize trains middle of the message it favors but instead of expense funds to encourage a diversity of views from private speakers it then goes on to say that this is in the last does the program actually wasn't for the purpose of encouraging diverse views because i think that's in question with the trademark regime and instead it said even though this is as an as an rosenberger the purpose is not to encourage a diversity of views the salient point is that like the program in rosenberg benefit than a subsidy i think the subsidy cases are more closely linked with direct tax breaks the racism was it would not be distinguishable from where you say or to be frank your own i think it's distinguishable in several ways the first is that respect with we do not believe that the voters of washington impermissibly distorted the marketplace ideas when they placing reasonable viewpoint neutral limitation on the use of tax funds that's completely apples and oranges from what we have in the trademark regime we have a specifically would that be permissible i don't think so and the reason is that content and viewpoint are labels and what they're both trying to get at is the same idea which is the government is never permitted to engage in anything with the purpose of suppressing particular private a small family planning organization and that you are created entirely on federal funds you had no means of obtaining outposts of work and you provided first control you provided all kinds of thing and weakening things and you also provided abortion related counsel the government comes along and says we're not going to give you federal funds anymore if you continue to provide abortion related counseling and you're in the position of either continue to expression first women rights or accepting the funding condition and going forward it seems to mean from the supreme court cases that that's perfectly permissible even though the unconstitutional conditions doctor the reason i read that section from alaska is because i really think that's where the meat of this case is the court has drawn that line between funding its own voice even when that's coercive which i think answers your hypothetical and funding private speakers where a program exists for the purpose of regulating private speech the government may never have an interest in only facilitating speech like there's no case that in twenty four that way in devonport of userra that was private speech and yes held that the government could  decide not to subsidize the election even more to some political issues and in both cases the court was clear number one that it did nothing to distort the marketplace because it was a subsidy of great and number two that viewpoint discrimination is that the government may not have as a permissible goal the suppression of private the points and in a calm if you were to find that this case was quote content based i don't believe that label would save you from the fact that we have a written record of the government saying we don't like this viewpoint we don't like the message that the slaves are trying to get across we googled that we figured out who they were if they were somebody else maybe it would be ok but we know there isn't and therefore their viewpoint is impermissible the court is of course within its power to permissible because they're not aimed at the government picking and choosing between which ideas it likes best not at all they're completely agnostic as to what your actual political beliefs are the problem is in looking at disparagement not only is it the point based it's completely  consistently applied it barely even meets a rational basis as we said in their sleep there are numerous times that madonna red wine has been granted in numerous times it's been denied and even if the system or even if it wasn't a hopelessly vague and inadmissible standards t of government employees even in that we then have the bizarre situation that the government you all now spend more time talking about the disparaging immoral and the endless trade mart more government funds consumers have more the mere existence of a federal statute for history has no normative force and of course there are many old statutes to get struck down as unconstitutional the time what i very much and i do appreciate is judge types mention of started to cite or excuse me juries mention of sorry gimli case it's really the only case to me i finish my answer to your question the mckinley case is really the only case that really specifically made a constitutional holding here and it's been referred to repeatedly for the last few decades  with one sentence holding that literally says the government need not occupy time the speech with which to sit and that is simply a painfully untrue statement about person and the law would mean that parade permits could be denied to the k k k which under we know under skokie is simply  honor and you should embrace it because it would bring trademarks closer in line to the copyright and by the way the patent regime so regardless of whether or not you see copyright is fundamentally different than the patent regime patent sex devices and gambling devices the government should not be in the moral or speech police business what i'll call an intermediate level of scrutiny is not the appropriate scrutiny here and it may be something more like surround suggestion of heightened scrutiny when you have these discrimination is the appropriate i think that strict scrutiny is always there is a slam dunk sentence in that case where the supreme court says a state may not prohibit only commercial advertising that depicts men in a demeaning fashion so again whether it's unconstitutional conditions commercial speech limited public forum doctrine the rules all boil down what the distinction they were drawing here the primary distinction that we're drawing here is between the government placing restrictions on what people can say if you if you tried to tell people that it was illegal to  advocate burning the flag and that was a lawful activity that that would be a very different case from a circumstance in which the question is whether the government should as part of its registration program that it uses as what has to be plats because people can sue based on them like among them i'm not i'm not sure that i mean it's certainly a government program and i'm not sure how the someone else because you've got a registered mark and they're infringing on this is a subsidy then why isn't flat record well it certainly isn't a restriction on free speech and so the the basic point that we're making here i mean reasons would not be a restriction if it would not that would simply deny the government's good offices to prevent anybody else stealing the entire commercial value of a particular  the the supreme court's decision in rust laid out in general principle that when they go what the government is doing is facilitating or encouraging speech ordinarily a first amendment objection can be valid raised to defeat that based on the government making choices but the supreme court in boston also acknowledged that but that is not a universal rule and particularly in circumstances right when i get some what i'm wondering is whether this  the same logic would apply i think to say the government is providing property on which you can engage in speech activity and therefore can limit your speech in a public forum and for that reason the supreme court in russia expressly addressed that issue and said of course there are some circumstances in the circumstances that enumerated were circumstances in which the first amendment interests were so heightened in the traditional role of the government was one that would be fundamentally incompatible with the ability to restrict  distinguish among speech in that matter and so the supreme court and russ specifically talked about that and said you know for example it gave the example that i just gave of of the government assistance being provided in the form of property and it gave the example of a university setting where i read the speech interest sufficiently heightened but then the court went on to say of course the russe case itself is not an example of this and the court said well it's possible that you could consider the relationship you could argue by follow up are you saying it would be too small and not a first amendment violation if congress enacted a statute that said we're going to ideally copyright and not allow copyright registration principle them with them that when the form of the government an accident is a is something that facilitates speech rather than restricting it at that the government has a latitude in that first amendment challenges we ordinarily fail in certain circumstances in which there are heightened first amendment interests and there's a traditional role of government that would be incompatible with that and this is all for to come from an copyright regime facility but the government trademark regime is not that  you're drawing no it is not please explain to me more clearly the distinction that you're drawing between trademark and copyright and why it wouldn't be ok for the government to adopt an identical restriction in the copyright r d well the copyright just if you go to both which the supreme court considered in russia both the history and the nature of the speech that's at issue the copyright regime protects the core political artistic speech and since the beginning of the republic you're only remedy to avoid it as was alluded to earlier completely theft of your intellectual property in the copyright well around since the first days of the republic has been federal copyright law and it would as your hypothetical suggests be quite extraordinary for the government to come in and say no we're going to restrict copyright in that matter what does not suggest may be that we have to have whether this is impossible for first amendment protection mr  speech or whether it's commercial speech because if it is if it if it's political speech then your theory about the copyright law comes into play in the government ability to subsidize or not to subsidize to select is more limited of them don't we really under your own theory have to decide whether this is fully protected or whether it's just there are two two reasons we don't think so your honor one is that this is a facial challenge to the statute and and was considered as and has applied so well if you're considering it as applied to mr tams speech you would still be considering the statute as a whole and whether you know congress impermissibly didn't car out for this limited area but just to take the question more directly even in the context of mr tan the rust decision went on and the speech that was at issue and right it said could plausibly be analogized to the types of speeches to which you would have this whether this is fully protected speech or commercials i apologize because i don't believe i got to what i think is the key point in russia which is that the next thing they looked at was the nature of the fact of the government in action in that issue on the speech and they said we don't have to decide this is what they said unless we don't have to decide whether and this goes directly to your question we don't have to decide whether the speech that's at issue here is analogous to the speech that we talked about in the previous sentences that i've been alluding to earlier because the level of intrusion on that speech and on that relationship in this case this case being right is limited and of course in that case what was happening was they were denying federal funds to people who wanted to advocate abortion and we would submit that that is much more significantly that is a much more significant limitation then here where we're talking about denying a federal registration you still have the right and i'm just not following what you're saying why why if this is fully protected speech doesn't this come under your theory about competence the speech in rust was fully protected speech and the supreme court held in brust that a limitation on the provision of government assistance spirit no because the reasons that the the court has recognized in the last this came up kids came up earlier and that's an example there are some circumstances in which the combination of the nature of the speech and the level of government interference with the ability to put forward a message you know what we need to talk about here is mr cham the extent what the trademark registration program is is fundamentally different from what the copyright that there is at least not to be an examination of the formation here but to go back to that nobody can go to court to enforce their copyright on a bus they get a registration yes but it can speak as much as they want and their speech can be stopped you have to give your good graces of a federal government issued piece of paper called the registration to allow the copyright owner to prove that one hundred million copies being made by parents right and that is a distinction from the trademark scheme at that issue in this case because you do not need your mark why would your argument not justify the don't so the government lives involvement in even the legal protection not extends to allowing first the federal government and then every state government from denying trademark protection to disparage unless it's just a you got there first that is you relying on the background of state law and forty and even for two separate questions of state law trademark protection in order to say believe in federal government don't have to lend our good offices i'm not sure where the starting point unless it's the principle that when the sole basis for this government imposition somewhere between a fan and denial of money there's a wide range of things that government can do but where the sole basis is we want to diminish the amount of received batman not for any reason having to do with their function as branded that fires that the constitutional the government does not distinguishing between you know between sides of the debate between who is being disparaged not saying you can disparage this new group or not an actor which is always a nice things about the same group that if you sing then things about it would be gave but here what you're doing is you're saying if you are if you were advancing bad or negative thoughts toward a particular race then that was regarded in our abs problematic but even even if but as we said you know when rusty was clearly with the underlying program and here is the underlying program has is only related to protecting consumers in the marketplace from from misleading information from information  scope of the government program that congress has defined congress define the program but still occasionally use of certain marks and a defined criteria and in the us a case and in the russ case the supreme court was clear here about what it meant perhaps not to certain members it's a facilitator use of certain marks but to be clear about what the supreme court line drew because it was quite facilitate commercial market it certainly can choose to prevent the use of certain commerce well i mean what it does is it if people use a certain type of mark and they register it then they can exclude others from using confusingly similar remarks and characterize that how you want but the point i want to get from the supreme court cases from usaid and rust the distinction that was that was that was drawn there was between conditions that are placed on the grant t on the one hand and conditions that are placed on the program on the other and they put the word grand piano tallackson they also said conditions that are placed on the recipient that would be leveraging outside the program or conditions that are placed on the subsidy itself that would be inside the program and here what we're talking about is not if you use a disparaging mark then you are ineligible as a person from receiving trademark registration that's not the statute we're looking at here the only issue is the precise markers for which you are seeking federal benefits that is the part of the program you get a certificate in the name of the united states with the mark printed on it that's what you're after that's what you're asking for and this is the program that we're talking about and that is not  clearly articulating the view that you believe this is government speech and should be analyzed in the group rank supreme court announced a marker can you clarify the government's position please sure it's it's critical to talk about what speech we're talking about we are not saying certificate in the name of the united states i don't understand that to be the expressive message that he's talking about to the extent that that is what he's saying and to the extent that what he's trying to do is force the united states to affirmatively take actions that would help him then that piece of the case which i think is the smaller piece and that's why it doesn't come up to the end of our brief yes it is government speech when the government is saying here is you're treating our government claims just to be clear make changes in government issuing a trademark registration i'm still much higher than the reason and this goes back to your earlier question of what why although we think the principles and walk are relevant why the direct discussion of it comes late in our brief we we don't understand this case to be about mr tam asserting that he has a first amendment right to have the government issued particular certificates a particular things take particular acts what he's saying is that the speech that is protected by the first amendment that i'm talking about here is my going out into the world using this mark to and and sort of proclaiming whatever message i want to send it's not entirely clear what  eligible under the criteria congress set up for registration i don't i don't understand with your attempt to be saying that the first amendment interest you trying to vindicate is in getting the government to do that so i don't think the government would be like quite free to prohibit corporations for example whether the state or federal government from registering corporate names that it doesn't like correct under that rubric any government registration a medical doctor who wants to register his state medical license if the government doesn't like his name they can prevent his registration because they find his name disparaging the preventives registration what his name happens to be osama bin ladin and we're not going to allow him to register as a medical doctor because they don't like his name the reason that that would be government speech under your logic i don't see how you've drawn a line between any federal registration program no matter what it is and this one if you're going to call this government beach and be allowed to regulate anything you don't like about again in that circumstance i presume that the doctor's primary purpose would be to obtain whatever the benefits are of the relevant registration rather than to obtain a piece of paper and the contrast with walker is one that helps us in this case and walker what was going on it was a license plate but somebody wanted to splay their vehicle it would take texas on it and then it would say sons of confederate veterans or have a logo underneath it and  were in the case was can they display this license plate can this license plate be attached to their car and shown to the world and the question in the case was therefore is that private speech governments beings or is it  in terms of what's being expressed because of the lack of a registry of an examination process but getting to the trademark what the government is expressing with that is much more limited but but fundamentally the problem with the copyright scheme that is being talked about is not the ability or inability to express something using the feel with the circle and that's that is what makes this case we can see different from the average university said mr can use of the federal of a trademark with his name is not problematic and that's not the government speech but what it in fact the government speech in response to judge still questions is federal register the car with the circle and principle register which by the way i couldn't figure out where such a thing exists not actually looking more and even the is government speech we're talking about registering it and putting the scene with the circle i don't see how it doesn't convert the copyright into government speech at least when we're talking about registering it and what it is but it but that the government speech argument doesn't get us to the point of validating if there were a restriction around eight years this way let's assume that there's no government speech here that the registration act itself is not government speech that it's some other kind of government program that doesn't involve speech what does that do to your argument it doesn't change it very much because our fundamental point is that the speech that mr tamlyn arguing is being affected here is not restricted by this program and if  there are government subsidies that don't take the form of the government actually expressing something like in rust like in davenport i can be certain that i just want i guess keep coming back to the denial of a copyright registration wouldn't restrict the copyright owner's speech either advocate a universal rule that if in every instance if the government's actions only take the form of facilitating c p is there any case in which the government has denied otherwise available and legal protection for private speech and dance private impairment entirely on the grounds that the government disapprove concerns of otherwise available legal protection against private interference of a speech like the ninth police protection to operate because you don't like that for a day or denying copyright registration which doesn't do anything except deny the copyright owner the ability so the horten stop private interference same thing here and i'm not aware of an instance in which of course it said yes the government may do criteria and it's helpful to go back to what this program is really all about it's a trademark program in congress that said criteria if if congress had had said that there were certain types of marks that they wanted to encourage people to use and facilitate and if you wanted to use those types of marks the government would help you and force them against other people when they could place restrictions and it's not because the government likes one kind or another kind but it would be surprising if said the government just had some don't find restrictions or it had other have no i'm sorry but those have nothing to do with traditional supreme court recognized concerns about impermissible bases for government decisions like we don't like t questions are getting at the same point and so if this were a government restriction then we would have great difficulty in the question as i understand it is really going to should this more fairly be an app and and now the dies the cases in which the government is placing restrictions on speech or should it more fairly be analogized to cases in which the government is subsidizing are providing benefits let me just say again i don't understand why you think the world can be divided up  categories of restrictions and government subsidies the government is doing a lot of different kinds of things that are fact and are designed to a fast speech that goes on in the world the world does not  population and we disapprove of it and we would like there to be less of it so we will deny an equal protection why is that ok for the first amendment well even if you don't think that they're binary categories there are distinctions in the case law and if the government chose not to subsidize in a different way then what you describe is denying legal protections why doesn't it make the difference here as to whether this is fully protected speech or whether it's just commercial speech doesn't make a difference or you win or lose whole song one way or the other we think that our argument is made better by the fact that this case is about commercial speech we don't concede that if a political speech that we lose the case but you're going to the extent that if you just take a step back and if you're taking a step back from doctrine doctrinal categories and just looking at what's going on here government isn't part of the disassociate itself from speech its findings we should not have to quote facilitate the use of racial slurs the public the united states regards racial is inappropriate so is your position that the government is entitled to decide what it finds offensive and therefore excluded well excluded in the sense of not having it be a part of a program that congress has set up and is appealing to point i'm going i'm sorry you're focusing on excluding but what i'm trying to get you to focus on is kind of is this about what the public might be offended by or what the government is the senate side because the only way it's written in your entire section government interest is if the government finds these things offensive so i'm trying to understand the nature of your argument in terms of the restriction the government the of it and the government is the representative of the public and that if the if the pubs if the government is the relevant question is whether this is disparaging to a substantial composite of the reference group match to statutory certain members of society that point tied into the just taking a step back and understanding what the scheme is about this is not a scheme designed to help people to make a political statement it's not a scheme designed to prevent people from making political statements congress made a determination that if people wanted to identify goods and services in commerce using particular identifying marks that that they should be able to do so that they should get certain stand for the decision as to what is or is not acceptable to but the ultimate decision that the agency was making was not about what could or couldn't be said in the market place the determination made no sense of the agency considers evidence from those who were uncomfortable so disparage this particular speech you look at the cost if you look at the consequences of the agency's action and the consequence of the agency's action was that the u s patent and trademark office would not take certain act actions that would that would facilitate the what the agency that just just registers it well what the agency does is a registry issue a registration certificate and publish it and most of the legal consequences that have been described in the briefing are flow from the fact that the agency has published it in a federal database and made it available to people and then other owners or other potential businesses get constructive notice based on not actually like cap exactly worker i think that there are legal benefits that flow but the agency's not out there taking affirmative steps spending affirmatively money to defend these mines and not very different from f county and online publication of property on the entity isn't out there litigating the cases in court that's true it's important to recognize if you're just talking about the scope of the agency's action and the scope of the benefits to to compare that there are benefits are there are that there is access to federal court if somebody has a confusingly similar mark to yours in the absence of federal registration and registration is important we're not saying it's not as important for several reasons but one of the key reasons in fact probably the most central reason is that federal registration provides constructive notion notice nationwide it provides a means to what the supreme court is called by a title that all flows from the fact that the u s patent and trademark office has evaluated the market considered whether it meets that statutory criteria for registration and has determined that it does and then has made that information public and then brings out people anyone who want to challenge it have to challenge it within a certain amount of time for made certain kinds of objections these all flow from what the u s federal government agency has done with respect to this march visit and of that it's true but control of the speech is not the word that i would use here and i think the reason that the copyright issue sort of seems like one that's so different from this one and we would urge the court to conclude that it is quite different from this one is that in that circumstance it seems impractical that that there would still be a marketplace of ideas if people did not have the opportunity to prevent other people from making copies without compensation and if and the supreme court has recognized that if you have a circumstance in which the government is taking action and this is why it's an exception to the general principle articulated in russia that if the government is taking actions that would have such a dramatic effect on the marketplace of ideas particularly in the area of political or  artistic speech yes there will be a more searching inquiry of the government action than in circumstances like this case in which there is there is a commercial speech issue and there is a federal scheme that are designed to promote the identification of goods so i just want to understand the government doesn't believe that the public forum bought them in the sense that that's right the government is not you don't see the register for we do not see the forum and certainly relates to speech that occurs out in the marketplace a wide variety of speech the notion that the the same inquiry would have to apply to such a fundamental change in the way all speech is protected in the united states as one applied to a change in the difficulty with that you will have in preventing someone from come here with that when they're not there deposited to the manuscript of the library of congress and walked away is there somebody other than takes a look at a mix of discrimination whether that's going to be in the copyright or not there then you have to make a determination about whether it is if it is copyright a ball that's a much less expensive determination than in the trademark contest simply walked in with in a functional object and the copyright office might determine that it's not that the copyright office is not going in and as in the trademark context looking at at the context of it and whether it effectively servers apart the purpose of the program at issue in government property and government property forcefully and that the register and i don't hear you say anything to the contrary but that's going to be my question is nothing so list of people who have certain legal rights with respect to certain that i know you say it's not a public forum but is there some other kind of form or not i had probably best described as not a form at all the only point of your question that i want to be completely clear about is property and i think i have taken it that the whole point of this piece of first amendment law was that and government property is involved one needs to answer some of the different questions and other kinds of things but we don't have that all we have list we don't regard to the the register itself as a forum and i think that's probably the most straightforward answer your question thinking  works to get placed on the copyright register and how it works are placed on the register trademarks fail to accept the premise of the hypothetical the court raised the hypothetical in the context of what if the same sort of restriction as exists in two way were placed on the register of copyright that would mean that there would be some sort of review if there were some sort of review then the message of there's no stairs no protection for copyright registered for unregistered works but there's all sorts of all sorts of protections for unregistered works because you've got forty three a of the of the trade mart act is an exaggeration although one can and many and frequently people do bring federal actions for unregistered trademarks the scope of protection is significantly different there's no customs interdiction for true that there are state law remedies available for two fortune for unregistered trademarks and there is and there is forty three a it is not a it is not a a quibble to say that there's a gigantic difference between of registered lost if that is prevented from the last is that the first amendment will have been breached the first amendment has to have struck what is what is the law i understand in the context of political speech and that's so many of the cases that we've been talking about but if it's just a promotion of the product or service what is the interest as is served by allowing racially offensive references in that connection here on r s b teaches that politically when we speak about political speech we're referring to a viewpoint racially offensive speech refers to one side of the viewpoint with respect to the question of racism everyone in this room agrees i hope on the question of racism we find that offensive it is nonetheless a political debate whether or not racism is a bad vibe an inside the political debate i'm asking just you're trying to sell what is the interest of allowing people to do that in a racially disparaging way to vindicate the first amendment which prohibits viewpoint discrimination in all  it requires that all speech regardless of how offensive be not be prohibited filtered gate kept restricted by the government and anyway period affected populations you know is found based on some levels of end of evidence to have been offended versus whether or not the agency makes a determination is this course a valid one but it is very proprietor of it is a government resource government the government should not have to employ its resources permitting employment of its resources allow its good name to be in this merged it's all about the government and that's what that is what the constitution programs what should we not new this has been all about the marketplace and not the government and not society as a whole but to maintaining a stable believe are essential to the to maintain stability in the marketplace with respect to trade or greater trade mark reaching and said these are the factors and disparagement is one of those factors your honor i would submit respectfully nothing in either the lanham act or section two way makes any reference whatsoever to stability in the marketplace one of the first which is that's the entire purpose of the other trademark regime is that the the the reason we don't want deception in the marketplace advantage in the marketplace and but not if it falls into the certain category you're on i would i would submit that argument proves too much as it was because rational basis around rational basis argument the statutes purposes are based on how congress expressed congress express itself in passing the statutes and then we ask whether the restrictions that are in it better be in question have been narrowly tailored and we submit that they have government is quite justifiably concerned about here why don't we trust the the public to deal with deceptive practices and because congress has made a judgment which does not impinge on the constitution that's an appropriate area of for regulation