NOTICE: This opinion is subject to
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United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
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															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 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 –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 –782 (1992) (Stevens, J., concurring in judgment); id .,
at 785 (Thomas, J., concurring in judgment). Eventually, 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, 16Stat. 210–212. The foundation of current
federal trademark law is the Lanham Act, enacted in 1946. See Act
of July 5, 1946, ch. 540, 60Stat. 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”).

															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 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 Mc-Carthy
§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, 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), 60Stat. 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 composite[ 3 ] 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 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 two-part framework
and finding that “there is . . . a substantial composite
of persons who find the term in the applied-for 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 en-gages 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 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 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 –538 (1992); Freytag v. Commissioner , 501 U. S. 868 –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 privilege 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, necessar-ily 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 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
test[ 5 ] and the huge 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 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 ofviewpoint-neutrality on
government speech would be para-lyzing. When a government entity
embarks on a courseof action, it necessarily takes a particular
viewpointand rejects others. The Free Speech Clause does not
re-quire 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 susceptible 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 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 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 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
mes-sages 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 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 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
trace-able 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 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. Butthose
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 –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-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
collective-bargaining 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 –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 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 –107 (2001); Rosenberger v. Rec-tor 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 –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 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 –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 –514 (1969); Cox v. Louisiana , 379
U. S. 536, 551 (1965) ; Edwards v. South
Carolina , 372 U. S. 229 –238 (1963); Terminiello v. Chicago , 337 U. S. 1 –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 “government-program” 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 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 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 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. Notes 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. 2 The disparagement clause
also prevents a trademark from being registered on the supplemental
register. §1091(a). 3 By “composite,” we assume
the PTO means component. 4 Tam 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. 5 The 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 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 ). 6 See, e.g. , App. to
Brief for Pro-Football, Inc., as Amicus Curiae . 7 See, e.g. , D.
Nelson, The Posters That Won the War (1991). 8 Ibid. 9 Compare “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). 15 While
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. 16 We
leave open the question whether this is the appropriate framework
for analyzing free speech challenges to provisions of the Lanham
Act. 17 As
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. 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.

															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 –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
messages 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 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-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 –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 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 common-law 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 medical-research
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.

															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 –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
mes-sages. 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).

															*  *  *

															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. 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) .