(Slip Opinion) OCTOBER TERM, 2016 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

MATAL, INTERIM DIRECTOR, UNITED STATES
 

PATENT AND TRADEMARK OFFICE v. TAM
 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FEDERAL CIRCUIT 

No. 15–1293. Argued January 18, 2017—Decided June 19, 2017 

Simon Tam, lead singer of the rock group “The Slants,” chose this moniker in order to “reclaim” the term and drain its denigrating force as 

a derogatory term for Asian persons. Tam sought federal registration 

of the mark “THE SLANTS.” The Patent and Trademark Office 

(PTO) denied the application under a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring

. . . into contemp[t] or disrepute” any “persons, living or dead.” 15 

U. S. C. §1052(a). Tam contested the denial of registration through 

the administrative appeals process, to no avail. He then took the 

case to federal court, where the en banc Federal Circuit ultimately

found the disparagement clause facially unconstitutional under the 

First Amendment’s Free Speech Clause. 

Held: The judgment is affirmed. 

808 F. 3d 1321, affirmed. 

JUSTICE ALITO delivered the opinion of the Court with respect to 

Parts I, II, and III–A, concluding: 

1. The disparagement clause applies to marks that disparage the 

members of a racial or ethnic group. Tam’s view, that the clause applies only to natural or juristic persons, is refuted by the plain terms

of the clause, which uses the word “persons.” A mark that disparages

a “substantial” percentage of the members of a racial or ethnic group 

necessarily disparages many “persons,” namely, members of that 

group. Tam’s narrow reading also clashes with the breadth of the

disparagement clause, which by its terms applies not just to “persons,” but also to “institutions” and “beliefs.” §1052(a). Had Congress wanted to confine the reach of the clause, it could have used the 
 

 

 

 

2 MATAL v. TAM 

Syllabus 

phrase “particular living individual,” which it used in neighboring 

§1052(c). Tam contends that his interpretation is supported by legislative history and by the PTO’s practice for many years of registering 

marks that plainly denigrated certain groups. But an inquiry into 

the meaning of the statute’s text ceases when, as here, “the statutory 

language is unambiguous and the statutory scheme is coherent and 

consistent.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (internal quotation marks omitted). Even if resort to legislative history

and early enforcement practice were appropriate, Tam has presented

nothing showing a congressional intent to adopt his interpretation,

and the PTO’s practice in the years following the disparagement 

clause’s enactment is unenlightening. Pp. 8–12. 

2. The disparagement clause violates the First Amendment’s Free 

Speech Clause. Contrary to the Government’s contention, trademarks are private, not government speech. Because the “Free Speech

Clause . . . does not regulate government speech,” Pleasant Grove 

City v. Summum, 555 U. S. 460, 467, the government is not required 

to maintain viewpoint neutrality on its own speech. This Court exercises great caution in extending its government-speech precedents, 

for if private speech could be passed off as government speech by 

simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. 

The Federal Government does not dream up the trademarks registered by the PTO. Except as required by §1052(a), an examiner may

not reject a mark based on the viewpoint that it appears to express.

If the mark meets the Lanham Act’s viewpoint-neutral requirements,

registration is mandatory. And once a mark is registered, the PTO is 

not authorized to remove it from the register unless a party moves for

cancellation, the registration expires, or the Federal Trade Commission initiates proceedings based on certain grounds. It is thus farfetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is 

babbling prodigiously and incoherently. And none of this Court’s 

government-speech cases supports the idea that registered trademarks are government speech. Johanns v. Livestock Marketing 

Assn., 544 U. S. 550; Pleasant Grove City v. Summum, 555 U. S. 460; 

and Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 

U. S. ___, distinguished. Holding that the registration of a trademark converts the mark into government speech would constitute a

huge and dangerous extension of the government-speech doctrine, for 

other systems of government registration (such as copyright) could

easily be characterized in the same way. Pp. 12–18. 

JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and 
 

 

Cite as: 582 U. S. ____ (2017) 3 

Syllabus 

JUSTICE BREYER, concluded in Parts III–B, III–C, and IV: 

(a) The Government’s argument that this case is governed by the

Court’s subsidized-speech cases is unpersuasive. Those cases all involved cash subsidies or their equivalent, e.g., funds to private parties for family planning services in Rust v. Sullivan, 500 U. S. 173, 

and cash grants to artists in National Endowment for Arts v. Finley, 

524 U. S. 569. The federal registration of a trademark is nothing like 

these programs. The PTO does not pay money to parties seeking registration of a mark; it requires the payment of fees to file an application and to maintain the registration once it is granted. The Government responds that registration provides valuable non-monetary 

benefits traceable to the Government’s resources devoted to registering the marks, but nearly every government service requires the expenditure of government funds. This is true of services that benefit 

everyone, like police and fire protection, as well as services that are 

utilized by only some, e.g., the adjudication of private lawsuits and

the use of public parks and highways. Pp. 18–20.

(b) Also unpersuasive is the Government’s claim that the disparagement clause is constitutional under a “government-program” doctrine, an argument which is based on a merger of this Court’s government-speech cases and subsidy cases. It points to two cases 

involving a public employer’s collection of union dues from its employees, Davenport v. Washington Ed. Assn., 551 U. S. 177, and Ysursa v. Pocatello Ed. Assn., 555 U. S. 353, but these cases occupy a

special area of First Amendment case law that is far removed from

the registration of trademarks. Cases in which government creates a

limited public forum for private speech, thus allowing for some content- and speaker-based restrictions, see, e.g., Good News Club v. 

Milford Central School, 533 U. S. 98, 106–107; Rosenberger v. Rector 

and Visitors of Univ. of Va., 515 U. S. 819, 831, are potentially more 

analogous. But even in those cases, viewpoint discrimination is forbidden. The disparagement clause denies registration to any mark

that is offensive to a substantial percentage of the members of any 

group. That is viewpoint discrimination in the sense relevant here: 

Giving offense is a viewpoint. The “public expression of ideas may

not be prohibited merely because the ideas are themselves offensive 

to some of their hearers.” Street v. New York, 394 U. S. 576, 592. 

Pp. 20–23. 

(c) The dispute between the parties over whether trademarks are

commercial speech subject to the relaxed scrutiny outlined in Central 

Hudson Gas & Elect. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 

need not be resolved here because the disparagement clause cannot 

withstand even Central Hudson review. Under Central Hudson, a 

restriction of speech must serve “a substantial interest” and be “nar-
 

 

 

4 MATAL v. TAM 

Syllabus 

rowly drawn.” Id., at 564–565 (internal quotation marks omitted).

One purported interest is in preventing speech expressing ideas that

offend, but that idea strikes at the heart of the First Amendment. 

The second interest asserted is protecting the orderly flow of commerce from disruption caused by trademarks that support invidious

discrimination; but the clause, which reaches any trademark that

disparages any person, group, or institution, is not narrowly drawn. 

Pp. 23–26.

 JUSTICE KENNEDY, joined by JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, agreed that 15 U. S. C. §1052(a) constitutes viewpoint discrimination, concluding: 

(a) With few narrow exceptions, a fundamental principle of the 

First Amendment is that the government may not punish or suppress

speech based on disapproval of the ideas or perspectives the speech 

conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 

U. S. 819, 828–829. The test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed. Here, the disparagement clause identifies the relevant 

subject as “persons, living or dead, institutions, beliefs, or national

symbols,” §1052(a); and within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus 

reflects the Government’s disapproval of a subset of messages it finds 

offensive, the essence of viewpoint discrimination. The Government’s 

arguments in defense of the statute are unpersuasive. Pp. 2–5.

(b) Regardless of whether trademarks are commercial speech, the 

viewpoint based discrimination here necessarily invokes heightened 

scrutiny. See Sorrell v. IMS Health Inc., 564 U. S. 552, 566. To the 

extent trademarks qualify as commercial speech, they are an example of why that category does not serve as a blanket exemption from 

the First Amendment’s requirement of viewpoint neutrality. In the 

realm of trademarks, the metaphorical marketplace of ideas becomes 

a tangible, powerful reality. To permit viewpoint discrimination in 

this context is to permit Government censorship. Pp. 5–7. 

ALITO, J., announced the judgment of the Court and delivered the

opinion of the Court with respect to Parts I, II, and III–A, in which 

ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and 

KAGAN, JJ., joined, and in which THOMAS, J., joined except for Part II,

and an opinion with respect to Parts III–B, III–C, and IV, in which 

ROBERTS, C. J., and THOMAS and BREYER, JJ., joined. KENNEDY, J., filed 

an opinion concurring in part and concurring in the judgment, in which

GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an 

opinion concurring in part and concurring in the judgment. GORSUCH, 

J., took no part in the consideration or decision of the case. 
 

 

_________________ 

_________________ 

Cite as: 582 U. S. ____ (2017) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 15–1293 

JOSEPH MATAL, INTERIM DIRECTOR, UNITED 

STATES PATENT AND TRADEMARK OFFICE, 

PETITIONER v. SIMON SHIAO TAM 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FEDERAL CIRCUIT
 

[June 19, 2017]

 JUSTICE ALITO announced the judgment of the Court 

and delivered the opinion of the Court with respect to

Parts I, II, and III–A, and an opinion with respect to Parts 

III–B, III–C, and IV, in which THE CHIEF JUSTICE, 

JUSTICE THOMAS, and JUSTICE BREYER join. 

This case concerns a dance-rock band’s application for 

federal trademark registration of the band’s name, “The

Slants.” “Slants” is a derogatory term for persons of Asian

descent, and members of the band are Asian-Americans. 

But the band members believe that by taking that slur as

the name of their group, they will help to “reclaim” the

term and drain its denigrating force.

The Patent and Trademark Office (PTO) denied the 

application based on a provision of federal law prohibiting 

the registration of trademarks that may “disparage . . . or

bring . . . into contemp[t] or disrepute” any “persons, living 

or dead.” 15 U. S. C. §1052(a). We now hold that this 

provision violates the Free Speech Clause of the First 

Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it 
 

2 MATAL v. TAM 

Opinion of the Court 

expresses ideas that offend. 

I 

A 

“The principle underlying trademark protection is that

distinctive marks—words, names, symbols, and the like—

can help distinguish a particular artisan’s goods from 

those of others.” B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. ___, ___ (2015) (slip op., at 3); see also 

Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U. S. 

205, 212 (2000). A trademark “designate[s] the goods as

the product of a particular trader” and “protect[s] his good

will against the sale of another’s product as his.” United 

Drug Co. v. Theodore Rectanus Co., 248 U. S. 90, 97 

(1918); see also Hanover Star Milling Co. v. Metcalf, 240 

U. S. 403, 412–413 (1916). It helps consumers identify 

goods and services that they wish to purchase, as well as 

those they want to avoid. See Wal-Mart Stores, supra, at 

212–213; Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 

U. S. 189, 198 (1985).

“[F]ederal law does not create trademarks.” B&B 

Hardware, supra, at ___ (slip op., at 3). Trademarks and 

their precursors have ancient origins, and trademarks

were protected at common law and in equity at the time of

the founding of our country. 3 J. McCarthy, Trademarks 

and Unfair Competition §19:8 (4th ed. 2017) (hereinafter 

McCarthy); 1 id., §§5:1, 5:2, 5:3; Pattishal, The Constitutional Foundations of American Trademark Law, 78 

Trademark Rep. 456, 457–458 (1988); Pattishall, Two

Hundred Years of American Trademark Law, 68 Trademark Rep. 121, 121–123 (1978); see Trade-Mark Cases, 

100 U. S. 82, 92 (1879). For most of the 19th century,

trademark protection was the province of the States. See 

Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763, 780– 

782 (1992) (Stevens, J., concurring in judgment); id., at 

785 (THOMAS, J., concurring in judgment). Eventually, 
 

Cite as: 582 U. S. ____ (2017) 3 

Opinion of the Court 

Congress stepped in to provide a degree of national uniformity, passing the first federal legislation protecting

trademarks in 1870. See Act of July 8, 1870, §§77–84, 16

Stat. 210–212. The foundation of current federal trademark law is the Lanham Act, enacted in 1946. See Act of 

July 5, 1946, ch. 540, 60 Stat. 427. By that time, trademark had expanded far beyond phrases that do no more 

than identify a good or service. Then, as now, trademarks 

often consisted of catchy phrases that convey a message.

Under the Lanham Act, trademarks that are “used in 

commerce” may be placed on the “principal register,” that 

is, they may be federally registered. 15 U. S. C. 

§1051(a)(1). And some marks “capable of distinguishing

[an] applicant’s goods or services and not registrable on

the principal register . . . which are in lawful use in commerce by the owner thereof ” may instead be placed on a 

different federal register: the supplemental register.

§1091(a). There are now more than two million marks 

that have active federal certificates of registration. PTO 

Performance and Accountability Report, Fiscal Year 2016,

p. 192 (Table 15), https://www.uspto.gov/sites/default/files/

documents/USPTOFY16PAR.pdf (all Internet materials as

last visited June 16, 2017). This system of federal registration helps to ensure that trademarks are fully protected

and supports the free flow of commerce. “[N]ational protection of trademarks is desirable,” we have explained, 

“because trademarks foster competition and the maintenance of quality by securing to the producer the benefits of 

good reputation.” San Francisco Arts & Athletics, Inc. v. 

United States Olympic Comm., 483 U. S. 522, 531 (1987) 

(internal quotation marks omitted); see also Park ’N Fly, 

Inc., supra, at 198 (“The Lanham Act provides national 

protection of trademarks in order to secure to the owner of

the mark the goodwill of his business and to protect the

ability of consumers to distinguish among competing 

producers”). 
 

 

4 MATAL v. TAM 

Opinion of the Court 

B 

Without federal registration, a valid trademark may

still be used in commerce. See 3 McCarthy §19:8. And an 

unregistered trademark can be enforced against would-be

infringers in several ways. Most important, even if a 

trademark is not federally registered, it may still be enforceable under §43(a) of the Lanham Act, which creates a

federal cause of action for trademark infringement. See 

Two Pesos, supra, at 768 (“Section 43(a) prohibits a broader

range of practices than does §32, which applies to registered marks, but it is common ground that §43(a) protects

qualifying unregistered trademarks” (internal quotation

marks and citation omitted)).1 Unregistered trademarks

may also be entitled to protection under other federal 

statutes, such as the Anticybersquatting Consumer Protection Act, 15 U. S. C. §1125(d). See 5 McCarthy

§25A:49, at 25A–198 (“[T]here is no requirement [in the

Anticybersquatting Act] that the protected ‘mark’ be registered: unregistered common law marks are protected by

the Act”). And an unregistered trademark can be enforced 

under state common law, or if it has been registered in a 

State, under that State’s registration system. See 3 id., 

§19:3, at 19–23 (explaining that “[t]he federal system of

registration and protection does not preempt parallel state 

—————— 

1 In the opinion below, the Federal Circuit opined that although “Section 43(a) allows for a federal suit to protect an unregistered trademark,” “it is not at all clear” that respondent could bring suit under 

§43(a) because “there is no authority extending §43(a) to marks denied

under §2(a)’s disparagement provision.” In re Tam, 808 F. 3d 1321, 

1344–1345, n.11 (en banc), as corrected (Feb. 11, 2016). When drawing 

this conclusion, the Federal Circuit relied in part on our statement in 

Two Pesos that “the general principles qualifying a mark for registration under §2 of the Lanham Act are for the most part applicable in

determining whether an unregistered mark is entitled to protection 

under §43(a).” 505 U. S., at 768. We need not decide today whether

respondent could bring suit under §43(a) if his application for federal

registration had been lawfully denied under the disparagement clause. 
 

Cite as: 582 U. S. ____ (2017) 5 

Opinion of the Court 

law protection, either by state common law or state registration” and “[i]n the vast majority of situations, federal 

and state trademark law peacefully coexist”); id., §22:1

(discussing state trademark registration systems). 

Federal registration, however, “confers important legal

rights and benefits on trademark owners who register

their marks.” B&B Hardware, 575 U. S., at ___ (slip op., 

at 3) (internal quotation marks omitted). Registration on 

the principal register (1) “serves as ‘constructive notice of

the registrant’s claim of ownership’ of the mark,” ibid. 

(quoting 15 U. S. C. §1072); (2) “is ‘prima facie evidence of 

the validity of the registered mark and of the registration

of the mark, of the owner’s ownership of the mark, and of 

the owner’s exclusive right to use the registered mark in

commerce on or in connection with the goods or services

specified in the certificate,’” B & B Hardware, 575 U. S. 

___ (slip op., at 3) (quoting §1057(b)); and (3) can make a 

mark “‘incontestable’” once a mark has been registered for

five years,” ibid. (quoting §§1065, 1115(b)); see Park ’N 

Fly, 469 U. S., at 193. Registration also enables the

trademark holder “to stop the importation into the United

States of articles bearing an infringing mark.” 3 McCarthy §19:9, at 19–38; see 15 U. S. C. §1124. 

C 

The Lanham Act contains provisions that bar certain

trademarks from the principal register. For example, a 

trademark cannot be registered if it is “merely descriptive or 

deceptively misdescriptive” of goods, §1052(e)(1), or if it is so

similar to an already registered trademark or trade name 

that it is “likely . . . to cause confusion, or to cause mistake, 

or to deceive,” §1052(d). 

At issue in this case is one such provision, which we will

call “the disparagement clause.” This provision prohibits the 

registration of a trademark “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, 
 

 

 

 

6 MATAL v. TAM 

Opinion of the Court 

or bring them into contempt, or disrepute.” §1052(a).

2 This 

clause appeared in the original Lanham Act and has remained the same to this day. See §2(a), 60 Stat. 428.

When deciding whether a trademark is disparaging, an

examiner at the PTO generally applies a “two-part test.”

The examiner first considers “the likely meaning of the

matter in question, taking into account not only dictionary 

definitions, but also the relationship of the matter to the 

other elements in the mark, the nature of the goods or 

services, and the manner in which the mark is used in the 

marketplace in connection with the goods or services.” 

Trademark Manual of Examining Procedure §1203.03(b)(i) 

(Apr. 2017), p. 1200–150, http://tmep.uspto.gov. “If that 

meaning is found to refer to identifiable persons, institutions, beliefs or national symbols,” the examiner moves to 

the second step, asking “whether that meaning may be 

disparaging to a substantial composite3 of the referenced 

group.” Ibid. If the examiner finds that a “substantial 

composite, although not necessarily a majority, of the

referenced group would find the proposed mark . . . to be 

disparaging in the context of contemporary attitudes,” a

prima facie case of disparagement is made out, and the

burden shifts to the applicant to prove that the trademark

is not disparaging. Ibid. What is more, the PTO has 

specified that “[t]he fact that an applicant may be a member of that group or has good intentions underlying its use

of a term does not obviate the fact that a substantial 

composite of the referenced group would find the term

objectionable.” Ibid. 

D 

Simon Tam is the lead singer of “The Slants.” In re 

Tam, 808 F. 3d 1321, 1331 (CA Fed. 2015) (en banc), as 

—————— 

2The disparagement clause also prevents a trademark from being

registered on the supplemental register. §1091(a). 3By “composite,” we assume the PTO means component. 
Cite as: 582 U. S. ____ (2017) 7 

Opinion of the Court 

corrected (Feb. 11, 2016). He chose this moniker in order 

to “reclaim” and “take ownership” of stereotypes about

people of Asian ethnicity. Ibid. (internal quotation marks

omitted). The group “draws inspiration for its lyrics from

childhood slurs and mocking nursery rhymes” and has

given its albums names such as “The Yellow Album” and 

“Slanted Eyes, Slanted Hearts.” Ibid. 

Tam sought federal registration of “THE SLANTS,” on

the principal register, App. 17, but an examining attorney 

at the PTO rejected the request, applying the PTO’s twopart framework and finding that “there is . . . a substantial composite of persons who find the term in the appliedfor mark offensive.” Id., at 30. The examining attorney 

relied in part on the fact that “numerous dictionaries 

define ‘slants’ or ‘slant-eyes’ as a derogatory or offensive 

term.” Id., at 29. The examining attorney also relied on a 

finding that “the band’s name has been found offensive 

numerous times”—citing a performance that was canceled

because of the band’s moniker and the fact that “several 

bloggers and commenters to articles on the band have

indicated that they find the term and the applied-for mark

offensive.” Id., at 29–30. 

Tam contested the denial of registration before the 

examining attorney and before the PTO’s Trademark Trial 

and Appeal Board (TTAB) but to no avail. Eventually, he 

took the case to federal court, where the en banc Federal 

Circuit ultimately found the disparagement clause facially

unconstitutional under the First Amendment’s Free 

Speech Clause. The majority found that the clause engages in viewpoint-based discrimination, that the clause 

regulates the expressive component of trademarks and

consequently cannot be treated as commercial speech, and 

that the clause is subject to and cannot satisfy strict scrutiny. See 808 F. 3d, at 1334–1339. The majority also

rejected the Government’s argument that registered

trademarks constitute government speech, as well as the 
 

8 MATAL v. TAM 

Opinion of the Court 

Government’s contention that federal registration is a 

form of government subsidy. See id., at 1339–1355. And 

the majority opined that even if the disparagement clause 

were analyzed under this Court’s commercial speech

cases, the clause would fail the “intermediate scrutiny”

that those cases prescribe. See id., at 1355–1357. 

Several judges wrote separately, advancing an assortment of theories. Concurring, Judge O’Malley agreed with

the majority’s reasoning but added that the disparagement clause is unconstitutionally vague. See id., at 1358– 

1363. Judge Dyk concurred in part and dissented in part. 

He argued that trademark registration is a government 

subsidy and that the disparagement clause is facially 

constitutional, but he found the clause unconstitutional as 

applied to THE SLANTS because that mark constitutes

“core expression” and was not adopted for the purpose of 

disparaging Asian-Americans. See id., at 1363–1374. In 

dissent, Judge Lourie agreed with Judge Dyk that the

clause is facially constitutional but concluded for a variety

of reasons that it is also constitutional as applied in this 

case. See id., at 1374–1376. Judge Reyna also dissented, 

maintaining that trademarks are commercial speech and 

that the disparagement clause survives intermediate 

scrutiny because it “directly advances the government’s 

substantial interest in the orderly flow of commerce.” See 

id., at 1376–1382. 

The Government filed a petition for certiorari, which we

granted in order to decide whether the disparagement 

clause “is facially invalid under the Free Speech Clause of

the First Amendment.” Pet. for Cert. i; see sub. nom. Lee 

v. Tam, 579 U. S. ___ (2016). 

II 

Before reaching the question whether the disparagement clause violates the First Amendment, we consider 

Tam’s argument that the clause does not reach marks that 
 

Cite as: 582 U. S. ____ (2017) 9 

Opinion of the Court 

disparage racial or ethnic groups. The clause prohibits the 

registration of marks that disparage “persons,” and Tam

claims that the term “persons” “includes only natural and 

juristic persons,” not “non-juristic entities such as racial

and ethnic groups.” Brief for Respondent 46.

Tam never raised this argument before the PTO or the

Federal Circuit, and we declined to grant certiorari on this 

question when Tam asked us to do so, see Brief Responding to Petition for Certiorari, pp. i, 17–21. Normally, that

would be the end of the matter in this Court. See, e.g., Yee 

v. Escondido, 503 U. S. 519, 534–538 (1992); Freytag v. 

Commissioner, 501 U. S. 868, 894–895 (1991) (Scalia, J.,

concurring in part and concurring in judgment). 

But as the Government pointed out in connection with

its petition for certiorari, accepting Tam’s statutory interpretation would resolve this case and leave the First 

Amendment question for another day. See Reply Brief 9.

“[W]e have often stressed” that it is “importan[t] [to] 

avoid[d] the premature adjudication of constitutional

questions,” Clinton v. Jones, 520 U. S. 681, 690 (1997), and 

that “we ought not to pass on questions of constitutionality 

. . . unless such adjudication is unavoidable,” Spector 

Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 

(1944). See also Alabama State Federation of Labor v. 

McAdory, 325 U. S. 450, 461 (1945); Burton v. United 

States, 196 U. S. 283, 295 (1905). We thus begin by explaining why Tam’s argument about the definition of 

“persons” in the Lanham Act is meritless.

As noted, the disparagement clause prohibits the registration of trademarks “which may disparage . . . persons, 

living or dead.” 15 U. S. C. §1052(a). Tam points to a 

definition of “person” in the Lanham Act, which provides

that “[i]n the construction of this chapter, unless the 

contrary is plainly apparent from the context . . . [t]he 

term ‘person’ and any other word or term used to designate the applicant or other entitled to a benefit or privi-
 

 

10 MATAL v. TAM 

Opinion of the Court 

lege or rendered liable under the provisions of this chapter 

includes a juristic person as well as a natural person.” 

§1127. Because racial and ethnic groups are neither 

natural nor “juristic” persons, Tam asserts, these groups

fall outside this definition. Brief for Respondent 46–48.

Tam’s argument is refuted by the plain terms of the 

disparagement clause. The clause applies to marks that 

disparage “persons.” A mark that disparages a “substantial” percentage of the members of a racial or ethnic group, 

Trademark Manual §1203.03(b)(i), at 1200–150, necessarily disparages many “persons,” namely, members of that 

group. Tam’s argument would fail even if the clause used 

the singular term “person,” but Congress’ use of the plural

“persons” makes the point doubly clear.4 

Tam’s narrow reading of the term “persons” also clashes

with the breadth of the disparagement clause. By its 

terms, the clause applies to marks that disparage, not just

“persons,” but also “institutions” and “beliefs.” 15 U. S. C. 

§1052(a). It thus applies to the members of any group 

whose members share particular “beliefs,” such as political, ideological, and religious groups. It applies to marks

that denigrate “institutions,” and on Tam’s reading, it also

reaches “juristic” persons such as corporations, unions,

and other unincorporated associations. See §1127. Thus, 

the clause is not limited to marks that disparage a particular natural person. If Congress had wanted to confine 

—————— 

4Tam advances a convoluted textual argument that goes as follows.

The definition of a “person” in 15 U. S. C. §1127 does not include a

“non-juristic person,” i.e., a group that cannot sue or be sued in its own 

right. Brief for Respondent 46–47. Such groups consist of multiple 

natural persons. Therefore, the members of such groups are not 

“persons” under the disparagement clause. Id., at 46–48. 

This argument leads to the absurd result that no person is a “person”

within the meaning of the disparagement clause. This is so because 

every person is a member of a “non-juristic” group, e.g., right-handers,

left-handers, women, men, people born on odd-numbered days, people

born on even-numbered days. 
Cite as: 582 U. S. ____ (2017) 11 

Opinion of the Court 

the reach of the disparagement clause in the way that 

Tam suggests, it would have been easy to do so. A neighboring provision of the Lanham Act denies registration to 

any trademark that “[c]onsists of or comprises a name, 

portrait, or signature identifying a particular living individual except by his written consent.” §1052(c) (emphasis

added).

Tam contends that his interpretation of the disparagement clause is supported by its legislative history and by 

the PTO’s willingness for many years to register marks

that plainly denigrated African-Americans and Native

Americans. These arguments are unpersuasive. As always, our inquiry into the meaning of the statute’s text

ceases when “the statutory language is unambiguous and 

the statutory scheme is coherent and consistent.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (2002) (internal quotation marks omitted). Here, it is clear that the 

prohibition against registering trademarks “which may

disparage . . . persons,” §1052(a), prohibits registration of

terms that disparage persons who share a common race or 

ethnicity.

Even if resort to legislative history and early enforcement practice were appropriate, we would find Tam’s

arguments unconvincing. Tam has not brought to our 

attention any evidence in the legislative history showing 

that Congress meant to adopt his interpretation. And the 

practice of the PTO in the years following the enactment

of the disparagement clause is unenlightening. The admitted vagueness of the disparagement test5 and the huge 

—————— 

5The PTO has acknowledged that the guidelines “for determining 

whether a mark is scandalous or disparaging are somewhat vague and 

the determination of whether a mark is scandalous or disparaging is

necessarily a highly subjective one.” In re In Over Our Heads, Inc., 16 

USPQ 2d 1653, 1654 (TTAB 1990) (brackets and internal quotation

marks omitted). The PTO has similarly observed that whether a mark

is disparaging “is highly subjective and, thus, general rules are difficult 
 

12 MATAL v. TAM 

Opinion of the Court 

volume of applications have produced a haphazard record 

of enforcement. (Even today, the principal register is

replete with marks that many would regard as disparaging to racial and ethnic groups.6) Registration of the 

offensive marks that Tam cites is likely attributable not to

the acceptance of his interpretation of the clause but to

other factors—most likely the regrettable attitudes and 

sensibilities of the time in question. 

III 

Because the disparagement clause applies to marks that

disparage the members of a racial or ethnic group, we 

must decide whether the clause violates the Free Speech 

Clause of the First Amendment. And at the outset, we 

must consider three arguments that would either eliminate any First Amendment protection or result in highly

permissive rational-basis review. Specifically, the Government contends (1) that trademarks are government

speech, not private speech, (2) that trademarks are a form

of government subsidy, and (3) that the constitutionality

of the disparagement clause should be tested under a new 

“government-program” doctrine. We address each of these 

arguments below. 

A 

The First Amendment prohibits Congress and other 

government entities and actors from “abridging the freedom of speech”; the First Amendment does not say that

Congress and other government entities must abridge

their own ability to speak freely. And our cases recognize

that “[t]he Free Speech Clause . . . does not regulate government speech.” Pleasant Grove City v. Summum, 555 

—————— 

to postulate.” Harjo v. Pro-Football Inc., 50 USPQ 2d 1705, 1737 (TTAB 

1999), rev’d, 284 F. Supp. 2d 96 (DC 2003), rev’d and remanded in part, 

415 F. 3d 44 (CADC 2005) (per curiam). 6See, e.g., App. to Brief for Pro-Football, Inc., as Amicus Curiae. 
 

Cite as: 582 U. S. ____ (2017) 13 

Opinion of the Court 

U.S. 460, 467 (2009); see Johanns v. Livestock Marketing 

Assn., 544 U.S. 550, 553 (2005) (“[T]he Government’s own

speech . . . is exempt from First Amendment scrutiny”); 

Board of Regents of Univ. of Wis. System v. Southworth, 

529 U.S. 217, 235 (2000). 

As we have said, “it is not easy to imagine how government could function” if it were subject to the restrictions 

that the First Amendment imposes on private speech. 

Summum, supra, at 468; see Walker v. Texas Div., Sons of 

Confederate Veterans, Inc., 576 U. S. ___, ___–___ (2015) 

(slip op., at 5–7). “‘[T]he First Amendment forbids the

government to regulate speech in ways that favor some

viewpoints or ideas at the expense of others,’” Lamb’s 

Chapel v. Center Moriches Union Free School Dist., 508 

U. S. 384, 394 (1993), but imposing a requirement of 

viewpoint-neutrality on government speech would be paralyzing. When a government entity embarks on a course 

of action, it necessarily takes a particular viewpoint

and rejects others. The Free Speech Clause does not require government to maintain viewpoint neutrality when 

its officers and employees speak about that venture. 

Here is a simple example. During the Second World

War, the Federal Government produced and distributed

millions of posters to promote the war effort.7 There were 

posters urging enlistment, the purchase of war bonds, and 

the conservation of scarce resources.8 These posters expressed a viewpoint, but the First Amendment did not 

demand that the Government balance the message of 

these posters by producing and distributing posters encouraging Americans to refrain from engaging in these 

activities. 

But while the government-speech doctrine is important—indeed, essential—it is a doctrine that is suscep-

—————— 

7See, e.g., D. Nelson, The Posters That Won the War (1991). 8 Ibid. 
 

 

14 MATAL v. TAM 

Opinion of the Court 

tible to dangerous misuse. If private speech could be 

passed off as government speech by simply affixing a 

government seal of approval, government could silence or 

muffle the expression of disfavored viewpoints. For this 

reason, we must exercise great caution before extending

our government-speech precedents.

At issue here is the content of trademarks that are 

registered by the PTO, an arm of the Federal Government. 

The Federal Government does not dream up these marks, 

and it does not edit marks submitted for registration.

Except as required by the statute involved here, 15

U. S. C. §1052(a), an examiner may not reject a mark 

based on the viewpoint that it appears to express. Thus, 

unless that section is thought to apply, an examiner does 

not inquire whether any viewpoint conveyed by a mark is

consistent with Government policy or whether any such

viewpoint is consistent with that expressed by other

marks already on the principal register. Instead, if the 

mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory. Ibid. (requiring that

“[n]o trademark . . . shall be refused registration on the

principal register on account of its nature unless” it falls

within an enumerated statutory exception). And if an 

examiner finds that a mark is eligible for placement on the 

principal register, that decision is not reviewed by any

higher official unless the registration is challenged. See 

§§1062(a), 1071; 37 CFR §41.31(a) (2016). Moreover, once 

a mark is registered, the PTO is not authorized to remove

it from the register unless a party moves for cancellation, 

the registration expires, or the Federal Trade Commission 

initiates proceedings based on certain grounds. See 15 

U. S. C. §§1058(a), 1059, 1064; 37 CFR §§2.111(b), 2.160. 

In light of all this, it is far-fetched to suggest that the

content of a registered mark is government speech. If the 

federal registration of a trademark makes the mark government speech, the Federal Government is babbling 
Cite as: 582 U. S. ____ (2017) 15 

Opinion of the Court 

prodigiously and incoherently. It is saying many unseemly 

things. See App. to Brief for Pro-Football, Inc., as Amicus 

Curiae. It is expressing contradictory views.9 It is unashamedly endorsing a vast array of commercial products

and services. And it is providing Delphic advice to the

consuming public.

For example, if trademarks represent government

speech, what does the Government have in mind when it 

advises Americans to “make.believe” (Sony),10 “Think 

different” (Apple),11 “Just do it” (Nike),12 or “Have it your 

way” (Burger King)13? Was the Government warning

about a coming disaster when it registered the mark 

“EndTime Ministries”14? 

The PTO has made it clear that registration does not

constitute approval of a mark. See In re Old Glory Condom Corp., 26 USPQ 2d 1216, 1220, n. 3 (TTAB 1993) 

(“[I]ssuance of a trademark registration . . . is not a government imprimatur”). And it is unlikely that more than 

a tiny fraction of the public has any idea what federal 

registration of a trademark means. See Application of 

National Distillers & Chemical Corp., 49 C. C. P. A. (Pat.) 

854, 863, 297 F.2d 941, 949 (1962) (Rich, J., concurring) 

(“The purchasing public knows no more about trademark 

registrations than a man walking down the street in a 

—————— 

9Compare “Abolish Abortion,” Registration No. 4,935,774 (Apr. 12,

2016), with “I Stand With Planned Parenthood,” Registration No. 

5,073,573 (Nov. 1, 2016); compare “Capitalism Is Not Moral, Not Fair,

Not Freedom,” Registration No. 4,696,419 (Mar. 3, 2015), with “Capitalism Ensuring Innovation,” Registration No. 3,966,092 (May 24, 2011);

compare “Global Warming Is Good,” Registration No. 4,776,235 (July

21, 2015), with “A Solution to Global Warming,” Registration No. 

3,875,271 (Nov. 10, 2010). 10 “make.believe,” Registration No. 4,342,903 (May 28, 2013). 

11 “Think Different,” Registration No. 2,707,257 (Apr. 15, 2003). 

12 “Just Do It,” Registration No. 1,875,307 (Jan. 25, 1995). 

13 “Have It Your Way,” Registration No. 0,961,016. (June 12, 1973) 

14 “EndTime Ministries,” Registration No. 4,746,225 (June 2, 2015). 
 

16 MATAL v. TAM 

Opinion of the Court 

strange city knows about legal title to the land and buildings he passes” (emphasis deleted)).

None of our government speech cases even remotely 

supports the idea that registered trademarks are government speech. In Johanns, we considered advertisements 

promoting the sale of beef products. A federal statute 

called for the creation of a program of paid advertising “‘to 

advance the image and desirability of beef and beef products.’” 544 U. S., at 561 (quoting 7 U. S. C. § 2902(13)). 

Congress and the Secretary of Agriculture provided guidelines for the content of the ads, Department of Agriculture 

officials attended the meetings at which the content of

specific ads was discussed, and the Secretary could edit or 

reject any proposed ad. 544 U. S., at 561. Noting that 

“[t]he message set out in the beef promotions [was] from

beginning to end the message established by the Federal 

Government,” we held that the ads were government

speech. Id., at 560. The Government’s involvement in the 

creation of these beef ads bears no resemblance to anything that occurs when a trademark is registered. 

 Our decision in Summum is similarly far afield. A small 

city park contained 15 monuments. 555 U.S., at 464. 

Eleven had been donated by private groups, and one of 

these displayed the Ten Commandments. Id., at 464–465. 

A religious group claimed that the city, by accepting donated monuments, had created a limited public forum for 

private speech and was therefore obligated to place in the 

park a monument expressing the group’s religious beliefs.

Holding that the monuments in the park represented

government speech, we cited many factors. Governments 

have used monuments to speak to the public since ancient 

times; parks have traditionally been selective in accepting

and displaying donated monuments; parks would be overrun if they were obligated to accept all monuments offered

by private groups; “[p]ublic parks are often closely identified in the public mind with the government unit that 
 

 

 

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Opinion of the Court 

owns the land”; and “[t]he monuments that are accepted 

. . . are meant to convey and have the effect of conveying a

government message.” Id., at 472. 

Trademarks share none of these characteristics. 

Trademarks have not traditionally been used to convey a 

Government message. With the exception of the enforcement of 15 U. S. C. §1052(a), the viewpoint expressed by a

mark has not played a role in the decision whether to 

place it on the principal register. And there is no evidence 

that the public associates the contents of trademarks with

the Federal Government. 

This brings us to the case on which the Government

relies most heavily, Walker, which likely marks the outer 

bounds of the government-speech doctrine. Holding that

the messages on Texas specialty license plates are government speech, the Walker Court cited three factors 

distilled from Summum. 576 U. S., at ___–___ (slip op., at 

7–8). First, license plates have long been used by the 

States to convey state messages. Id., at ___–___ (slip op., 

at 9–10). Second, license plates “are often closely identified in the public mind” with the State, since they are

manufactured and owned by the State, generally designed

by the State, and serve as a form of “government ID.” Id., 

at ___ (slip op., at 10) (internal quotation marks omitted).

Third, Texas “maintain[ed] direct control over the messages conveyed on its specialty plates.” Id., at ___ (slip

op., at 11). As explained above, none of these factors are

present in this case.

In sum, the federal registration of trademarks is vastly

different from the beef ads in Johanns, the monuments in 

Summum, and even the specialty license plates in Walker. 

Holding that the registration of a trademark converts the 

mark into government speech would constitute a huge and 

dangerous extension of the government-speech doctrine.

For if the registration of trademarks constituted government speech, other systems of government registration 
 

Opinion of the Court 

18 MATAL v. TAM 

Opinion of ALITO, J. 

could easily be characterized in the same way. 

Perhaps the most worrisome implication of the Government’s argument concerns the system of copyright registration. If federal registration makes a trademark government speech and thus eliminates all First Amendment 

protection, would the registration of the copyright for a 

book produce a similar transformation? See 808 F.3d, at 

1346 (explaining that if trademark registration amounts

to government speech, “then copyright registration” which

“has identical accoutrements” would “likewise amount to 

government speech”). 

The Government attempts to distinguish copyright on

the ground that it is “‘the engine of free expression,’” Brief 

for Petitioner 47 (quoting Eldred v. Ashcroft, 537 U. S. 

186, 219 (2003)), but as this case illustrates, trademarks

often have an expressive content. Companies spend huge

amounts to create and publicize trademarks that convey a 

message. It is true that the necessary brevity of trademarks limits what they can say. But powerful messages

can sometimes be conveyed in just a few words. 

Trademarks are private, not government, speech. 

B 

We next address the Government’s argument that this

case is governed by cases in which this Court has upheld 

the constitutionality of government programs that subsidized speech expressing a particular viewpoint. These 

cases implicate a notoriously tricky question of constitutional law. “[W]e have held that the Government ‘may not 

deny a benefit to a person on a basis that infringes his

constitutionally protected . . . freedom of speech even if he

has no entitlement to that benefit.’” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 

___, ___ (2013) (slip op., at 8) (some internal quotation 

marks omitted). But at the same time, government is not

required to subsidize activities that it does not wish to 
Opinion of the Court 

 

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Opinion of ALITO, J. 

promote. Ibid. Determining which of these principles 

applies in a particular case “is not always self-evident,” 

id., at ___ (slip op., at 11), but no difficult question is 

presented here.

Unlike the present case, the decisions on which the

Government relies all involved cash subsidies or their 

equivalent. In Rust v. Sullivan, 500 U. S. 173 (1991), a

federal law provided funds to private parties for family

planning services. In National Endowment for Arts v. 

Finley, 524 U. S. 569 (1998), cash grants were awarded to

artists. And federal funding for public libraries was at

issue in United States v. American Library Assn., Inc., 539 

U.S. 194 (2003). In other cases, we have regarded tax 

benefits as comparable to cash subsidies. See Regan v. 

Taxation With Representation of Wash., 461 U. S. 540 

(1983); Cammarano v. United States, 358 U. S 498 (1959). 

The federal registration of a trademark is nothing like

the programs at issue in these cases. The PTO does not 

pay money to parties seeking registration of a mark.

Quite the contrary is true: An applicant for registration

must pay the PTO a filing fee of $225–$600. 37 CFR 

§2.6(a)(1). (Tam submitted a fee of $275 as part of his

application to register THE SLANTS. App. 18.) And to 

maintain federal registration, the holder of a mark must

pay a fee of $300–$500 every 10 years. §2.6(a)(5); see also 

15 U. S. C. §1059(a). The Federal Circuit concluded that 

these fees have fully supported the registration system for

the past 27 years. 808 F.3d, at 1353. 

The Government responds that registration provides

valuable non-monetary benefits that “are directly traceable to the resources devoted by the federal government to 

examining, publishing, and issuing certificates of registration for those marks.” Brief for Petitioner 27. But just

about every government service requires the expenditure 

of government funds. This is true of services that benefit 

everyone, like police and fire protection, as well as services 
 

Opinion of the Court 

20 MATAL v. TAM 

Opinion of ALITO, J. 

that are utilized by only some, e.g., the adjudication of

private lawsuits and the use of public parks and highways.

Trademark registration is not the only government

registration scheme. For example, the Federal Government registers copyrights and patents. State governments

and their subdivisions register the title to real property

and security interests; they issue driver’s licenses, motor 

vehicle registrations, and hunting, fishing, and boating

licenses or permits. 

 Cases like Rust and Finley are not instructive in analyzing the constitutionality of restrictions on speech imposed 

in connection with such services. 

C 

Finally, the Government urges us to sustain the disparagement clause under a new doctrine that would apply to

“government-program” cases. For the most part, this 

argument simply merges our government-speech cases

and the previously discussed subsidy cases in an attempt 

to construct a broader doctrine that can be applied to the 

registration of trademarks. The only new element in this

construct consists of two cases involving a public employer’s collection of union dues from its employees. But 

those cases occupy a special area of First Amendment case 

law, and they are far removed from the registration of

trademarks. 

In Davenport v. Washington Ed. Assn., 551 U. S. 177, 

181–182 (2007), a Washington law permitted a public

employer automatically to deduct from the wages of employees who chose not to join the union the portion of 

union dues used for activities related to collective bargaining. But unless these employees affirmatively consented, 

the law did not allow the employer to collect the portion of

union dues that would be used in election activities. Id., 

at 180–182. A public employee union argued that this law 

unconstitutionally restricted its speech based on its con- 
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Opinion of ALITO, J. 

tent; that is, the law permitted the employer to assist

union speech on matters relating to collective bargaining 

but made it harder for the union to collect money to support its election activities. Id., at 188. Upholding this law,

we characterized it as imposing a “modest limitation” on

an “extraordinary benefit,” namely, taking money from the 

wages of non-union members and turning it over to the

union free of charge. Id., at 184. Refusing to confer an 

even greater benefit, we held, did not upset the marketplace of ideas and did not abridge the union’s free speech 

rights. Id., at 189–190. 

Ysursa v. Pocatello Ed. Assn., 555 U. S. 353 (2009), is 

similar. There, we considered an Idaho law that allowed 

public employees to elect to have union dues deducted 

from their wages but did not allow such a deduction for

money remitted to the union’s political action committee. 

Id., at 355. We reasoned that the “the government . . .

[was] not required to assist others in funding the expression of particular ideas.” Id., at 358; see also id., at 355 

(“The First Amendment . . . does not confer an affirmative

right to use government payroll mechanisms for the purpose of obtaining funds for expression”). 

Davenport and Ysursa are akin to our subsidy cases.

Although the laws at issue in Davenport and Ysursa did 

not provide cash subsidies to the unions, they conferred a 

very valuable benefit—the right to negotiate a collectivebargaining agreement under which non-members would 

be obligated to pay an agency fee that the public employer

would collect and turn over to the union free of charge. As 

in the cash subsidy cases, the laws conferred this benefit 

because it was thought that this arrangement served

important government interests. See Abood v. Detroit Bd. 

of Ed., 431 U. S. 209, 224–226 (1977). But the challenged

laws did not go further and provide convenient collection 

mechanisms for money to be used in political activities. In 

essence, the Washington and Idaho lawmakers chose to 
 

Opinion of the Court 

22 MATAL v. TAM 

Opinion of ALITO, J. 

confer a substantial non-cash benefit for the purpose of 

furthering activities that they particularly desired to 

promote but not to provide a similar benefit for the purpose of furthering other activities. Thus, Davenport and 

Ysursa are no more relevant for present purposes than the 

subsidy cases previously discussed.15 

Potentially more analogous are cases in which a unit of

government creates a limited public forum for private

speech. See, e.g., Good News Club v. Milford Central 

School, 533 U. S. 98, 106–107 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 831 (1995); 

Lamb’s Chapel, 508 U. S., at 392–393. See also Legal 

Services Corporation v. Velazquez, 531 U. S. 533, 541–544 

(2001). When government creates such a forum, in either 

a literal or “metaphysical” sense, see Rosenberger, 515 

U. S., at 830, some content- and speaker-based restrictions 

may be allowed, see id., at 830–831. However, even in 

such cases, what we have termed “viewpoint discrimination” is forbidden. Id., at 831. 

Our cases use the term “viewpoint” discrimination in a

broad sense, see ibid., and in that sense, the disparagement clause discriminates on the bases of “viewpoint.” To 

be sure, the clause evenhandedly prohibits disparagement

of all groups. It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and

those arrayed on both sides of every possible issue. It 

denies registration to any mark that is offensive to a 

substantial percentage of the members of any group. But 

in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint. 

We have said time and again that “the public expression 

—————— 

15While these cases resemble subsidy cases insofar as the free speech 

rights of unions and their members are concerned, arrangements like 

those in these cases also implicate the free speech rights of non-union 

members. Our decision here has no bearing on that issue. 
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Opinion of ALITO, J. 

of ideas may not be prohibited merely because the ideas

are themselves offensive to some of their hearers.” Street 

v. New York, 394 U. S. 576, 592 (1969). See also Texas v. 

Johnson, 491 U. S. 397, 414 (1989) (“If there is a bedrock 

principle underlying the First Amendment, it is that the

government may not prohibit the expression of an idea

simply because society finds the idea itself offensive or 

disagreeable”); Hustler Magazine, Inc. v. Falwell, 485 U. S. 

46, 55–56 (1988); Coates v. Cincinnati, 402 U. S. 611, 615 

(1971); Bachellar v. Maryland, 397 U. S. 564, 567 (1970); 

Tinker v. Des Moines Independent Community School 

Dist., 393 U. S. 503, 509–514 (1969); Cox v. Louisiana, 379 

U. S. 536, 551 (1965); Edwards v. South Carolina, 372 U. S. 

229, 237–238 (1963); Terminiello v. Chicago, 337 U. S. 1, 

4–5 (1949); Cantwell v. Connecticut, 310 U. S. 296, 311 

(1940); Schneider v. State (Town of Irvington), 308 U. S. 

147, 161 (1939); De Jonge v. Oregon, 299 U. S. 353, 365 

(1937).

For this reason, the disparagement clause cannot be

saved by analyzing it as a type of government program in

which some content- and speaker-based restrictions are

permitted.16 

IV 

Having concluded that the disparagement clause cannot 

be sustained under our government-speech or subsidy 

cases or under the Government’s proposed “governmentprogram” doctrine, we must confront a dispute between 

the parties on the question whether trademarks are commercial speech and are thus subject to the relaxed scrutiny

outlined in Central Hudson Gas & Elec. Corp. v. Public 

Serv. Comm’n of N. Y., 447 U. S. 557 (1980). The Government and amici supporting its position argue that all 

—————— 

16We leave open the question whether this is the appropriate framework for analyzing free speech challenges to provisions of the Lanham 

Act. 
 

Opinion of the Court 

24 MATAL v. TAM 

Opinion of ALITO, J. 

trademarks are commercial speech. They note that the

central purposes of trademarks are commercial and that

federal law regulates trademarks to promote fair and

orderly interstate commerce. Tam and his amici, on the 

other hand, contend that many, if not all, trademarks

have an expressive component. In other words, these 

trademarks do not simply identify the source of a product 

or service but go on to say something more, either about 

the product or service or some broader issue. The trademark in this case illustrates this point. The name “The 

Slants” not only identifies the band but expresses a view 

about social issues. 

We need not resolve this debate between the parties

because the disparagement clause cannot withstand even 

Central Hudson review.17 Under Central Hudson, a restriction of speech must serve “a substantial interest,” and 

it must be “narrowly drawn.” Id., at 564–565 (internal

quotation marks omitted). This means, among other 

things, that “[t]he regulatory technique may extend only

as far as the interest it serves.” Id., at 565. The disparagement clause fails this requirement.

It is claimed that the disparagement clause serves two

interests. The first is phrased in a variety of ways in the 

briefs. Echoing language in one of the opinions below, the

Government asserts an interest in preventing “‘underrepresented groups’” from being “‘bombarded with

demeaning messages in commercial advertising.’” Brief 

for Petitioner 48 (quoting 808 F.3d, at 1364 (Dyk, J., 

concurring in part and dissenting in part)). An amicus 

supporting the Government refers to “encouraging racial 

—————— 

17As with the framework discussed in Part III–C of this opinion, we 

leave open the question whether Central Hudson provides the appropriate test for deciding free speech challenges to provisions of the 

Lanham Act. And nothing in our decision should be read to speak to 

the validity of state unfair competition provisions or product libel laws 

that are not before us and differ from §1052(d)’s disparagement clause. 
Opinion of the Court 

Cite as: 582 U. S. ____ (2017) 25 

Opinion of ALITO, J. 

tolerance and protecting the privacy and welfare of individuals.” Brief for Native American Organizations as 

Amici Curiae 21. But no matter how the point is phrased,

its unmistakable thrust is this: The Government has an 

interest in preventing speech expressing ideas that offend. 

And, as we have explained, that idea strikes at the heart 

of the First Amendment. Speech that demeans on the 

basis of race, ethnicity, gender, religion, age, disability, or 

any other similar ground is hateful; but the proudest boast 

of our free speech jurisprudence is that we protect the

freedom to express “the thought that we hate.” United 

States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, 

J., dissenting).

The second interest asserted is protecting the orderly

flow of commerce. See 808 F. 3d, at 1379–1381 (Reyna, J., 

dissenting); Brief for Petitioner 49; Brief for Native American Organizations as Amicus Curiae 18–21. Commerce, 

we are told, is disrupted by trademarks that “involv[e]

disparagement of race, gender, ethnicity, national origin,

religion, sexual orientation, and similar demographic 

classification.” 808 F.3d, at 1380–1381 (opinion of Reyna, 

J.). Such trademarks are analogized to discriminatory 

conduct, which has been recognized to have an adverse 

effect on commerce. See ibid.; Brief for Petitioner 49; 

Brief for Native American Organizations as Amici Curiae 

18–20. 

A simple answer to this argument is that the disparagement clause is not “narrowly drawn” to drive out 

trademarks that support invidious discrimination. The 

clause reaches any trademark that disparages any person, 

group, or institution. It applies to trademarks like the 

following: “Down with racists,” “Down with sexists,” 

“Down with homophobes.” It is not an anti-discrimination 

clause; it is a happy-talk clause. In this way, it goes much

further than is necessary to serve the interest asserted. 

The clause is far too broad in other ways as well. The 
 

 

Opinion of the Court 

26 MATAL v. TAM 

Opinion of ALITO, J. 

clause protects every person living or dead as well as every 

institution. Is it conceivable that commerce would be 

disrupted by a trademark saying: “James Buchanan was a

disastrous president” or “Slavery is an evil institution”? 

There is also a deeper problem with the argument that

commercial speech may be cleansed of any expression

likely to cause offense. The commercial market is well 

stocked with merchandise that disparages prominent 

figures and groups, and the line between commercial and 

non-commercial speech is not always clear, as this case 

illustrates. If affixing the commercial label permits the 

suppression of any speech that may lead to political or

social “volatility,” free speech would be endangered. 

* * * 

For these reasons, we hold that the disparagement

clause violates the Free Speech Clause of the First 

Amendment. The judgment of the Federal Circuit is 

affirmed. 

It is so ordered.

 JUSTICE GORSUCH took no part in the consideration or 

decision of this case. 
_________________ 

_________________ 

Cite as: 582 U. S. ____ (2017) 1 

Opinion of KENNEDY, J. 

SUPREME COURT OF THE UNITED STATES 

No. 15–1293 

JOSEPH MATAL, INTERIM DIRECTOR, UNITED 

STATES PATENT AND TRADEMARK OFFICE, 

PETITIONER v. SIMON SHIAO TAM 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FEDERAL CIRCUIT
 

[June 19, 2017]

 JUSTICE KENNEDY, with whom JUSTICE GINSBURG, 

JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring 

in part and concurring in the judgment. 

The Patent and Trademark Office (PTO) has denied the 

substantial benefits of federal trademark registration to

the mark THE SLANTS. The PTO did so under the mandate of the disparagement clause in 15 U. S. C. §1052(a),

which prohibits the registration of marks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any 

“persons, living or dead, institutions, beliefs, or national 

symbols.”

As the Court is correct to hold, §1052(a) constitutes 

viewpoint discrimination—a form of speech suppression so

potent that it must be subject to rigorous constitutional 

scrutiny. The Government’s action and the statute on 

which it is based cannot survive this scrutiny.

The Court is correct in its judgment, and I join Parts I,

II, and III–A of its opinion. This separate writing explains

in greater detail why the First Amendment’s protections

against viewpoint discrimination apply to the trademark

here. It submits further that the viewpoint discrimination

rationale renders unnecessary any extended treatment of 

other questions raised by the parties. 
 

 

 

2 MATAL v. TAM 

Opinion of KENNEDY, J. 

I 

Those few categories of speech that the government can 

regulate or punish—for instance, fraud, defamation, or

incitement—are well established within our constitutional 

tradition. See United States v. Stevens, 559 U. S. 460, 468 

(2010). Aside from these and a few other narrow exceptions, it is a fundamental principle of the First Amendment that the government may not punish or suppress 

speech based on disapproval of the ideas or perspectives

the speech conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828–829 (1995).

The First Amendment guards against laws “targeted at

specific subject matter,” a form of speech suppression 

known as content based discrimination. Reed v. Town of 

Gilbert, 576 U. S. ___, ___ (2015) (slip op., at 12). This 

category includes a subtype of laws that go further, aimed 

at the suppression of “particular views . . . on a subject.” 

Rosenberger, 515 U. S., at 829. A law found to discriminate based on viewpoint is an “egregious form of content 

discrimination,” which is “presumptively unconstitutional.” 

Id., at 829–830. 

At its most basic, the test for viewpoint discrimination is 

whether—within the relevant subject category—the government has singled out a subset of messages for disfavor 

based on the views expressed. See Cornelius v. NAACP 

Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) 

(“[T]he government violates the First Amendment when it 

denies access to a speaker solely to suppress the point of

view he espouses on an otherwise includible subject”). In 

the instant case, the disparagement clause the Government now seeks to implement and enforce identifies the

relevant subject as “persons, living or dead, institutions, 

beliefs, or national symbols.” 15 U. S. C. §1052(a). Within 

that category, an applicant may register a positive or

benign mark but not a derogatory one. The law thus 

reflects the Government’s disapproval of a subset of mes-
Cite as: 582 U. S. ____ (2017) 3 

Opinion of KENNEDY, J. 

sages it finds offensive. This is the essence of viewpoint 

discrimination. 

The Government disputes this conclusion. It argues, to 

begin with, that the law is viewpoint neutral because it 

applies in equal measure to any trademark that demeans

or offends. This misses the point. A subject that is first

defined by content and then regulated or censored by

mandating only one sort of comment is not viewpoint 

neutral. To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so. Cf. 

Rosenberger, supra, at 831–832 (“The . . . declaration that 

debate is not skewed so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple 

ways”). The logic of the Government’s rule is that a law 

would be viewpoint neutral even if it provided that public 

officials could be praised but not condemned. The First 

Amendment’s viewpoint neutrality principle protects more

than the right to identify with a particular side. It protects the right to create and present arguments for particular positions in particular ways, as the speaker chooses.

By mandating positivity, the law here might silence dissent and distort the marketplace of ideas.

The Government next suggests that the statute is viewpoint neutral because the disparagement clause applies to

trademarks regardless of the applicant’s personal views or

reasons for using the mark. Instead, registration is denied

based on the expected reaction of the applicant’s audience. 

In this way, the argument goes, it cannot be said that 

Government is acting with hostility toward a particular 

point of view. For example, the Government does not 

dispute that respondent seeks to use his mark in a positive way. Indeed, respondent endeavors to use The Slants 

to supplant a racial epithet, using new insights, musical

talents, and wry humor to make it a badge of pride. Respondent’s application was denied not because the Government thought his object was to demean or offend but 
 

4 MATAL v. TAM 

Opinion of KENNEDY, J. 

because the Government thought his trademark would

have that effect on at least some Asian-Americans. 

The Government may not insulate a law from charges of 

viewpoint discrimination by tying censorship to the reaction of the speaker’s audience. The Court has suggested

that viewpoint discrimination occurs when the government intends to suppress a speaker’s beliefs, Reed, supra, 

at ___–___ (slip op., at 11–12), but viewpoint discrimination need not take that form in every instance. The danger of viewpoint discrimination is that the government is 

attempting to remove certain ideas or perspectives from a 

broader debate. That danger is all the greater if the ideas

or perspectives are ones a particular audience might think

offensive, at least at first hearing. An initial reaction may

prompt further reflection, leading to a more reasoned, 

more tolerant position.

Indeed, a speech burden based on audience reactions is 

simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the

government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in

this case to decide whether the relevant audience would 

find the speech offensive. For reasons like these, the 

Court’s cases have long prohibited the government from

justifying a First Amendment burden by pointing to the 

offensiveness of the speech to be suppressed. See ante, at 

23 (collecting examples). 

The Government’s argument in defense of the statute

assumes that respondent’s mark is a negative comment. 

In addressing that argument on its own terms, this opinion is not intended to imply that the Government’s interpretation is accurate. From respondent’s submissions, it

is evident he would disagree that his mark means what

the Government says it does. The trademark will have the 

effect, respondent urges, of reclaiming an offensive term

for the positive purpose of celebrating all that Asian-
Cite as: 582 U. S. ____ (2017) 5 

Opinion of KENNEDY, J. 

Americans can and do contribute to our diverse Nation. 

Brief for Respondent 1–4, 42–43. While thoughtful persons can agree or disagree with this approach, the dissonance between the trademark’s potential to teach and the

Government’s insistence on its own, opposite, and negative

interpretation confirms the constitutional vice of the 

statute. 

II 

The parties dispute whether trademarks are commercial

speech and whether trademark registration should be 

considered a federal subsidy. The former issue may turn

on whether certain commercial concerns for the protection 

of trademarks might, as a general matter, be the basis for

regulation. However that issue is resolved, the viewpoint 

based discrimination at issue here necessarily invokes 

heightened scrutiny.

“Commercial speech is no exception,” the Court has

explained, to the principle that the First Amendment

“requires heightened scrutiny whenever the government

creates a regulation of speech because of disagreement 

with the message it conveys.” Sorrell v. IMS Health Inc., 

564 U. S. 552, 566 (2011) (internal quotation marks omitted). Unlike content based discrimination, discrimination 

based on viewpoint, including a regulation that targets

speech for its offensiveness, remains of serious concern in

the commercial context. See Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 65, 71–72 (1983). 

To the extent trademarks qualify as commercial speech, 

they are an example of why that term or category does not

serve as a blanket exemption from the First Amendment’s 

requirement of viewpoint neutrality. Justice Holmes’ 

reference to the “free trade in ideas” and the “power of . . . 

thought to get itself accepted in the competition of the 

market,” Abrams v. United States, 250 U. S. 616, 630 

(1919) (dissenting opinion), was a metaphor. In the realm 
 

 

6 MATAL v. TAM 

Opinion of KENNEDY, J. 

of trademarks, the metaphorical marketplace of ideas

becomes a tangible, powerful reality. Here that real marketplace exists as a matter of state law and our commonlaw tradition, quite without regard to the Federal Government. See ante, at 2. These marks make up part of the 

expression of everyday life, as with the names of entertainment groups, broadcast networks, designer clothing, 

newspapers, automobiles, candy bars, toys, and so on. See 

Brief for Pro-Football, Inc., as Amicus Curiae 8 (collecting

examples). Nonprofit organizations—ranging from medicalresearch charities and other humanitarian causes to 

political advocacy groups—also have trademarks, which

they use to compete in a real economic sense for funding 

and other resources as they seek to persuade others to join

their cause. See id., at 8–9 (collecting examples). To 

permit viewpoint discrimination in this context is to permit Government censorship. 

This case does not present the question of how other

provisions of the Lanham Act should be analyzed under 

the First Amendment. It is well settled, for instance, that 

to the extent a trademark is confusing or misleading the

law can protect consumers and trademark owners. See, 

e.g., FTC v. Winstead Hosiery Co., 285 U. S. 483, 493 

(1922) (“The labels in question are literally false, and . . . 

palpably so. All are, as the Commission found, calculated 

to deceive and do in fact deceive a substantial portion of

the purchasing public”). This case also does not involve 

laws related to product labeling or otherwise designed to 

protect consumers. See Sorrell, supra, at 579 (“[T]he

government’s legitimate interest in protecting consumers 

from commercial harms explains why commercial speech 

can be subject to greater governmental regulation than

noncommercial speech” (internal quotation marks omitted)). These considerations, however, do not alter the 

speech principles that bar the viewpoint discrimination 

embodied in the statutory provision at issue here. 
Cite as: 582 U. S. ____ (2017) 7 

Opinion of KENNEDY, J. 

It is telling that the Court’s precedents have recognized

just one narrow situation in which viewpoint discrimination is permissible: where the government itself is speaking or recruiting others to communicate a message on its 

behalf. See Legal Services Corporation v. Velazquez, 531 

U. S. 533, 540–542 (2001); Board of Regents of Univ. of 

Wis. System v. Southworth, 529 U. S. 217, 229, 235 (2000); 

Rosenberger, 515 U. S., at 833. The exception is necessary

to allow the government to stake out positions and pursue

policies. See Southworth, supra, at 235; see also ante, at 

13–14. But it is also narrow, to prevent the government

from claiming that every government program is exempt 

from the First Amendment. These cases have identified a 

number of factors that, if present, suggest the government

is speaking on its own behalf; but none are present here. 

See ante, at 14–18. 

There may be situations where private speakers are

selected for a government program to assist the government in advancing a particular message. That is not this 

case either. The central purpose of trademark registration

is to facilitate source identification. To serve that broad 

purpose, the Government has provided the benefits of 

federal registration to millions of marks identifying every 

type of product and cause. Registered trademarks do so by

means of a wide diversity of words, symbols, and messages. Whether a mark is disparaging bears no plausible 

relation to that goal. While defining the purpose and

scope of a federal program for these purposes can be complex, see, e.g., Agency for Int’l Development v. Alliance for 

Open Society Int’l, Inc., 570 U. S. ___, ___ (2013) (slip op., 

at 8), our cases are clear that viewpoint discrimination is 

not permitted where, as here, the Government “expends

funds to encourage a diversity of views from private

speakers,” Velazquez, supra, at 542 (internal quotation 

marks omitted). 
 

 

8 MATAL v. TAM 

Opinion of KENNEDY, J. 

* * * 

A law that can be directed against speech found offensive to some portion of the public can be turned against 

minority and dissenting views to the detriment of all. The 

First Amendment does not entrust that power to the 

government’s benevolence. Instead, our reliance must be 

on the substantial safeguards of free and open discussion

in a democratic society.

For these reasons, I join the Court’s opinion in part and

concur in the judgment. 
_________________ 

_________________ 

 

Cite as: 582 U. S. ____ (2017) 1 

Opinion of THOMAS, J. 

SUPREME COURT OF THE UNITED STATES 

No. 15–1293 

JOSEPH MATAL, INTERIM DIRECTOR, UNITED 

STATES PATENT AND TRADEMARK OFFICE, 

PETITIONER v. SIMON SHIAO TAM 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FEDERAL CIRCUIT
 

[June 19, 2017]

 JUSTICE THOMAS, concurring in part and concurring in 

the judgment. 

I join the opinion of JUSTICE ALITO, except for Part II. 

Respondent failed to present his statutory argument

either to the Patent and Trademark Office or to the Court 

of Appeals, and we declined respondent’s invitation to 

grant certiorari on this question. Ante, at 9. I see no 

reason to address this legal question in the first instance.

See Star Athletica, L. L. C. v. Varsity Brands, Inc., 580 

U. S. ___, ___ (2017) (slip op., at 6). 

I also write separately because “I continue to believe 

that when the government seeks to restrict truthful 

speech in order to suppress the ideas it conveys, strict

scrutiny is appropriate, whether or not the speech in 

question may be characterized as ‘commercial.’” Lorillard 

Tobacco Co. v. Reilly, 533 U. S. 525, 572 (2001) (THOMAS, 

J., concurring in part and concurring in judgment); see 

also, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 

484, 518 (1996) (same). I nonetheless join Part IV of 

JUSTICE ALITO’s opinion because it correctly concludes 

that the disparagement clause, 15 U. S. C. §1052(a), is 

unconstitutional even under the less stringent test announced in Central Hudson Gas & Elec. Corp. v. Public 

Serv. Comm’n of N. Y., 447 U. S. 557 (1980).