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. 18–302

															_________________

															ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE,
PETITIONER v. ERIK BRUNETTI

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[June 24, 2019]

															Justice Kagan delivered the opinion of the
Court.

															Two Terms ago, in Matal v. Tam ,
582 U. S. ___ (2017), this Court invalidated the Lanham Act’s
bar on the registration of “disparag[ing]” trademarks. 15
U. S. C. §1052(a). Although split between two
non-majority opinions, all Members of the Court agreed that the
provision violated the First Amendment because it discriminated on
the basis of viewpoint. Today we consider a First Amendment
challenge to a neighboring provision of the Act, prohibiting the
registration of “immoral[ ] or scandalous” trademarks. Ibid. We hold that this provision infringes the First
Amendment for the same reason: It too disfavors certain ideas.

															I

															Respondent Erik Brunetti is an artist and
entrepreneur who founded a clothing line that uses the trademark
FUCT. According to Brunetti, the mark (which functions as the
clothing’s brand name) is pronounced as four letters, one after the
other: F-U-C-T. See Brief for Respondent 1. But you might read it
differently and, if so, you would hardly be alone. See Tr. of Oral
Arg. 5 (describing the brand name as “the equivalent of [the] past
participle form of a well-known word of profanity”). That common
perception caused difficulties for Brunetti when he tried to
register his mark with the U. S. Patent and Trademark Office
(PTO).

															Under the Lanham Act, the PTO administers a
federal registration system for trademarks. See 15
U. S. C. §§1051, 1052. Registration of a mark is not
mandatory. The owner of an unregistered mark may still use it in
commerce and enforce it against infringers. See Tam , 582
U. S., at ___ (slip op., at 4). But registration gives
trademark owners valuable benefits. For example, registration
constitutes “prima facie evidence” of the mark’s validity.
§1115(a). And registration serves as “constructive notice of the
registrant’s claim of ownership,” which forecloses some defenses in
infringement actions. §1072. Generally, a trademark is eligible for
registration, and receipt of such benefits, if it is “used in
commerce.” §1051(a)(1). But the Act directs the PTO to
“refuse[ ] registration” of certain marks. §1052. For
instance, the PTO cannot register a mark that “so resembles”
another mark as to create a likelihood of confusion. §1052(d). It
cannot register a mark that is “merely descriptive” of the goods on
which it is used. §1052(e). It cannot register a mark containing
the flag or insignia of any nation or State. See §1052(b). There
are five or ten more (depending on how you count). And until we
invalidated the criterion two years ago, the PTO could not register
a mark that “disparage[d]” a “person[ ], living or dead.”
§1052(a); see Tam , 582 U. S. ___.

															This case involves another of the Lanham Act’s
prohibitions on registration—one applying to marks that
“[c]onsist[ ] of or comprise[ ] immoral[ ] or
scandalous matter.” §1052(a). The PTO applies that bar as a
“unitary provision,” rather than treating the two adjectives in it
separately. In re Brunetti , 877 F.3d 1330, 1336 (CA
Fed. 2017); Brief for Petitioner 6 (stating that the PTO “has long
treated the two terms as composing a single category”). To
determine whether a mark fits in the category, the PTO asks whether
a “substantial composite of the general public” would find the mark
“shocking to the sense of truth, decency, or propriety”; “giving
offense to the conscience or moral feelings”; “calling out for
condemnation”; “disgraceful”; “offensive”; “disreputable”; or
“vulgar.” 877 F. 3d, at 1336 (internal quotation marks
omitted); see Brief for Petitioner 6 (agreeing that the PTO
“generally defines” the category in that way).

															Both a PTO examining attorney and the PTO’s
Trademark Trial and Appeal Board decided that Brunetti’s mark
flunked that test. The attorney determined that FUCT was “a total
vulgar” and “therefore[ ] unregistrable.” App. 27–28. On
review, the Board stated that the mark was “highly offensive” and
“vulgar,” and that it had “decidedly negative sexual connotations.”
App. to Pet. for Cert. 59a, 64a–65a. As part of its review, the
Board also considered evidence of how Brunetti used the mark. It
found that Brunetti’s website and products contained imagery, near
the mark, of “extreme nihilism” and “anti-social” behavior. Id., at 64a. In that context, the Board thought, the mark
communicated “misogyny, depravity, [and] violence.” Ibid .
The Board concluded: “Whether one considers [the mark] as a sexual
term, or finds that [Brunetti] has used [the mark] in the context
of extreme misogyny, nihilism or violence, we have no question but
that [the term is] extremely offensive.” Id., at 65a.

															Brunetti then brought a facial challenge to the
“immoral or scandalous” bar in the Court of Appeals for the Federal
Circuit. That court found the prohibition to violate the First
Amendment. As usual when a lower court has invalidated a federal
statute, we granted certiorari. 586 U. S. ___ (2019).

															II

															This Court first considered a First Amendment
challenge to a trademark registration restriction in Tam ,
just two Terms ago. There, the Court declared unconstitutional the
Lanham Act’s ban on registering marks that “disparage” any
“person[ ], living or dead.” §1052(a). The eight-Justice Court
divided evenly between two opinions and could not agree on the
overall framework for deciding the case. (In particular, no
majority emerged to resolve whether a Lanham Act bar is a condition
on a government benefit or a simple restriction on speech.) But all
the Justices agreed on two propositions. First, if a trademark
registration bar is viewpoint-based, it is unconstitutional. See
582 U. S., at ___–___, ___–___ (opinion of Alito, J.) (slip
op., at 1–2, 22–23); id., at ___–___, ___ (opinion of
Kennedy, J.) (slip op., at 1–2, 5). And second, the disparagement
bar was viewpoint-based. See id., at ___–___, ___–___
(opinion of Alito, J.) (slip op., at 1–2, 22–23); id., at
___–___ (opinion of Kennedy, J.) (slip op., at 2–5).

															The Justices thus found common ground in a core
postulate of free speech law: The government may not discriminate
against speech based on the ideas or opinions it conveys. See Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S.
819 , 829–830 (1995) (explaining that viewpoint discrimination
is an “egregious form of content discrimination” and is
“presumptively unconstitutional”). In Justice Kennedy’s
explanation, the disparagement bar allowed a trademark owner to
register a mark if it was “positive” about a person, but not if it
was “derogatory.” Tam , 582 U. S., at ___ (slip op., at
2). That was the “essence of viewpoint discrimination,” he
continued, because “[t]he law thus reflects the Government’s
disapproval of a subset of messages it finds offensive.” Id., at ___–___ (slip op., at 2–3). Justice Alito emphasized
that the statute “denie[d] registration to any mark” whose
disparaging message was “offensive to a substantial percentage of
the members of any group.” Id., at ___ (slip op., at 22).
The bar thus violated the “bedrock First Amendment principle” that
the government cannot discriminate against “ideas that offend.” Id., at ___–___ (slip op., at 1–2). Slightly different
explanations, then, but a shared conclusion: Viewpoint
discrimination doomed the disparagement bar.

															If the “immoral or scandalous” bar similarly
discriminates on the basis of viewpoint, it must also collide with
our First Amendment doctrine. The Government does not argue
otherwise. In briefs and oral argument, the Government offers a
theory for upholding the bar if it is viewpoint-neutral
(essentially, that the bar would then be a reasonable condition on
a government benefit). See Brief for Petitioner 14–26. But the
Government agrees that under Tam it may not “deny
registration based on the views expressed” by a mark. Tr. of Oral
Arg. 24. “As the Court’s Tam decision establishes,” the
Government says, “the criteria for federal trademark registration”
must be “viewpoint-neutral to survive Free Speech Clause review.”
Pet. for Cert. 19. So the key question becomes: Is the “immoral or
scandalous” criterion in the Lanham Act viewpoint-neutral or
viewpoint-based?

															It is viewpoint-based. The meanings of “immoral”
and “scandalous” are not mysterious, but resort to some
dictionaries still helps to lay bare the problem. When is
expressive material “immoral”? According to a standard definition,
when it is “inconsistent with rectitude, purity, or good morals”;
“wicked”; or “vicious.” Webster’s New International Dictionary 1246
(2d ed. 1949). Or again, when it is “opposed to or violating
morality”; or “morally evil.” Shorter Oxford English Dictionary 961
(3d ed. 1947). So the Lanham Act permits registration of marks that
champion society’s sense of rectitude and morality, but not marks
that denigrate those concepts. And when is such material
“scandalous”? Says a typical definition, when it “giv[es] offense
to the conscience or moral feelings”; “excite[s] reprobation”; or
“call[s] out condemnation.” Webster’s New International Dictionary,
at 2229. Or again, when it is “shocking to the sense of truth,
decency, or propriety”; “disgraceful”; “offensive”; or
“disreputable.” Funk & Wagnalls New Standard Dictionary 2186
(1944). So the Lanham Act allows registration of marks when their
messages accord with, but not when their messages defy, society’s
sense of decency or propriety. Put the pair of overlapping terms
together and the statute, on its face, distinguishes between two
opposed sets of ideas: those aligned with conventional moral
standards and those hostile to them; those inducing societal nods
of approval and those provoking offense and condemnation. The
statute favors the former, and disfavors the latter. “Love rules”?
“Always be good”? Registration follows. “Hate rules”? “Always be
cruel”? Not according to the Lanham Act’s “immoral or scandalous”
bar.

															The facial viewpoint bias in the law results in
viewpoint-discriminatory application. Recall that the PTO itself
describes the “immoral or scandalous” criterion using much the same
language as in the dictionary definitions recited above. See supra, at 3. The PTO, for example, asks whether the public
would view the mark as “shocking to the sense of truth, decency, or
propriety”; “calling out for condemnation”; “offensive”; or
“disrepu- table.” Brief for Petitioner 6 (internal quotation marks
omitted). Using those guideposts, the PTO has refused to register
marks communicating “immoral” or “scandalous” views about (among
other things) drug use, religion, and terrorism. But all the while,
it has approved registration of marks expressing more accepted
views on the same topics. See generally Gilson & LaLonde,
Trademarks Laid Bare, 101 Trademark Reporter 1476, 1510–1513,
1518–1522 (2011); Brief for Barton Beebe et al. as Amici
Curiae 28–29.

															Here are some samples. The PTO rejected marks
conveying approval of drug use (YOU CAN’T SPELL HEALTHCARE WITHOUT
THC for pain-relief medication, MARIJUANA COLA and KO KANE for
beverages) because it is scandalous to “inappropriately glamoriz[e]
drug abuse.” PTO, Office Action of Aug. 28, 2010, Serial No.
85038867; see Office Action of Dec. 24, 2009, Serial No. 77833964;
Office Action of Nov. 17, 2009, Serial No. 77671304. But at the
same time, the PTO registered marks with such sayings as D.A.R.E.
TO RESIST DRUGS AND VIOLENCE and SAY NO TO DRUGS—REALITY IS THE
BEST TRIP IN LIFE. See PTO, Reg. No. 2975163 (July 26, 2005); Reg.
No. 2966019 (July 12, 2005). Similarly, the PTO disapproved
registration for the mark BONG HITS 4 JESUS because it “suggests
that people should engage in an illegal activity [in connection
with] worship” and because “Christians would be morally outraged by
a statement that connects Jesus Christ with illegal drug use.”
Office Action of Mar. 15, 2008, Serial No. 77305946. And the PTO
refused to register trademarks associating religious references
with products (AGNUS DEI for safes and MADONNA for wine) because
they would be “offensive to most individuals of the Christian
faith” and “shocking to the sense of propriety.” Ex parte Summit
Brass & Bronze Works , 59 USPQ 22, 23 (Dec. Com. Pat. 1943); In re Riverbank Canning Co. , 95 F.2d 327, 329 (CCPA 1938).
But once again, the PTO approved marks—PRAISE THE LORD for a game
and JESUS DIED FOR YOU on clothing—whose message suggested
religious faith rather than blasphemy or irreverence. See Reg. No.
5265121 (Aug. 15, 2017); Reg. No. 3187985 (Dec. 19, 2006). Finally,
the PTO rejected marks reflecting support for al-Qaeda (BABY AL
QAEDA and AL-QAEDA on t-shirts) “because the bombing of civilians
and other terrorist acts are shocking to the sense of decency and
call out for condemnation.” Office Action of Nov. 22, 2004, Serial
No. 78444968; see Office Action of Feb. 23, 2005, Serial No.
78400213. Yet it approved registration of a mark with the words WAR
ON TERROR MEMORIAL. Reg. No. 5495362 (Jun. 19, 2018). Of course,
all these decisions are understandable. The rejected marks express
opinions that are, at the least, offensive to many Americans. But
as the Court made clear in Tam , a law disfavoring “ideas
that offend” discriminates based on viewpoint, in violation of the
First Amendment. 582 U. S., at ___ (opinion of Alito, J.)
(slip op., at 2); see id., at ___–___ (slip op., at 22–23); id., at ___–___ (opinion of Kennedy, J.) (slip op., at
2–3).

															How, then, can the Government claim that the
“immoral or scandalous” bar is viewpoint-neutral? The Government
basically asks us to treat decisions like those described above as
PTO examiners’ mistakes. See Brief for Petitioner 46. Still more,
the Government tells us to ignore how the Lanham Act’s language, on
its face, disfavors some ideas. In urging that course, the
Government does not dispute that the statutory language—and words
used to define it—have just that effect. At oral argument, the
Government conceded: “[I]f you just looked at the words like
‘shocking’ and ‘offensive’ on their face and gave them their
ordinary meanings[,] they could easily encompass material that was
shocking [or offensive] because it expressed an outrageous point of
view or a point of view that most members” of society reject. Tr.
of Oral Arg. 6. But no matter, says the Government, because the
statute is “susceptible of” a limiting construction that would
remove this viewpoint bias. Id., at 7 (arguing that the
Court should “attempt to construe [the] statute in a way that would
render it constitutional”). The Government’s idea, abstractly
phrased, is to narrow the statutory bar to “marks that are
offensive [or] shocking to a substantial segment of the public
because of their mode of expression, independent of any
views that they may express.” Id., at 11 (emphasis added);
see Brief for Petitioner 27–28. More concretely, the Government
explains that this reinterpretation would mostly restrict the PTO
to refusing marks that are “vulgar”—meaning “lewd,” “sexually
explicit or profane.” Id., at 27, 30. Such a reconfigured
bar, the Government says, would not turn on viewpoint, and so we
could uphold it.

															But we cannot accept the Government’s proposal,
because the statute says something markedly different. This Court,
of course, may interpret “ambiguous statutory language” to “avoid
serious constitutional doubts.” FCC v. Fox Television
Stations, Inc. , 556 U.S.
502 , 516 (2009). But that canon of construction applies only
when ambiguity exists. “We will not rewrite a law to conform it to
constitutional requirements.” United States v. Stevens , 559 U.S.
460 , 481 (2010) (internal quotation marks and alteration
omitted). So even assuming the Government’s reading would eliminate
First Amendment problems, we may adopt it only if we can see it in
the statutory language. And we cannot. The “immoral or scandalous”
bar stretches far beyond the Government’s proposed construction.
The statute as written does not draw the line at lewd, sexually
explicit, or profane marks. Nor does it refer only to marks whose
“mode of expression,” independent of viewpoint, is particularly
offensive. Brief for Petitioner 28 (internal quotation marks
omitted). It covers the universe of immoral or scandalous—or (to
use some PTO synonyms) offensive or disreputable—material. Whether
or not lewd or profane. Whether the scandal and immorality comes
from mode or instead from viewpoint. To cut the statute off where
the Government urges is not to interpret the statute Congress
enacted, but to fashion a new one.[ 1 ]*

															And once the “immoral or scandalous” bar is
interpreted fairly, it must be invalidated. The Government just
barely argues otherwise. In the last paragraph of its brief, the
Government gestures toward the idea that the provision is
salvageable by virtue of its constitutionally permissible
applications (in the Government’s view, its applications to lewd,
sexually explicit, or profane marks). See id. , at 47. In
other words, the Government invokes our First Amendment overbreadth
doctrine, and asks us to uphold the statute against facial attack
because its unconstitutional applications are not “substantial”
relative to “the statute’s plainly legitimate sweep.” Stevens , 559 U. S., at 473 (internal quotation marks
omitted). But to begin with, this Court has never applied that kind
of analysis to a viewpoint-discriminatory law. In Tam , for
example, we did not pause to consider whether the disparagement
clause might admit some permissible applications (say, to certain
libelous speech) before striking it down. The Court’s finding of
viewpoint bias ended the matter. And similarly, it seems unlikely
we would compare permissible and impermissible applications if
Congress outright banned “offensive” (or to use some other
examples, “divisive” or “subversive”) speech. Once we have found
that a law “aim[s] at the suppression of ” views, why would it
matter that Congress could have captured some of the same speech
through a viewpoint-neutral statute? Tam , 582 U. S., at
___ (opinion of Kennedy, J.) (slip op., at 2). But in any event,
the “immoral or scandalous” bar is substantially overbroad. There
are a great many immoral and scandalous ideas in the world (even
more than there are swearwords), and the Lanham Act covers them
all. It therefore violates the First Amendment.

															We accordingly affirm the judgment of the Court
of Appeals.

															It is so ordered. Notes 1 *We reject the dissent’s
statutory surgery for the same reason. Al-though conceding that the
term “immoral” cannot be saved, the dissent thinks that the term
“scandalous” can be read as the Government proposes. See post, at 1–2 (Sotomayor, J., concurring in part and
dissenting in part). But that term is not “ambiguous,” as the
dissent argues, post, at 3; it is just broad. Remember that
the dictionaries define it to mean offensive, disreputable,
exciting reprobation, and so forth. See supra, at 5–6; post, at 3 (accepting those definitions). Even if hived off
from “immoral” marks, the category of scandalous marks thus
includes both marks that offend by the ideas they convey and marks that offend by their mode of expression. And its
coverage of the former means that it discriminates based on
viewpoint. We say nothing at all about a statute that covers only
the latter—or, in the Government’s more concrete description, a
statute limited to lewd, sexually explicit, and profane marks. Nor
do we say anything about how to evaluate viewpoint-neutral
restrictions on trademark registration, see post, at
14–17—because the “scandalous” bar (whether or not attached to the
“immoral” bar) is not one. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–302

															_________________

															ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE,
PETITIONER v. ERIK BRUNETTI

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[June 24, 2019]

															Justice Alito, concurring.

															For the reasons explained in the opinion of the
Court, the provision of the Lanham Act at issue in this case
violates the Free Speech Clause of the First Amendment because it
discriminates on the basis of viewpoint and cannot be fixed without
rewriting the statute. Viewpoint discrimination is poison to a free
society. But in many countries with constitutions or legal
traditions that claim to protect freedom of speech, serious
viewpoint discrimination is now tolerated, and such discrimination
has become increasingly prevalent in this country. At a time when
free speech is under attack, it is especially important for this
Court to remain firm on the principle that the First Amendment does
not tolerate viewpoint discrimination. We reaffirm that principle
today.

															Our decision is not based on moral relativism
but on the recognition that a law banning speech deemed by
government officials to be “immoral” or “scandalous” can easily be
exploited for illegitimate ends. Our decision does not prevent
Congress from adopting a more carefully focused statute that
precludes the registration of marks containing vulgar terms that
play no real part in the expression of ideas. The particular mark
in question in this case could be denied registration under such a
statute. The term suggested by that mark is not needed to express
any idea and, in fact, as commonly used today, generally signifies
nothing except emotion and a severely limited vocabulary. The
registration of such marks serves only to further coarsen our
popular culture. But we are not legislators and cannot substitute a
new statute for the one now in force. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–302

															_________________

															ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE,
PETITIONER v. ERIK BRUNETTI

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[June 24, 2019]

															Chief Justice Roberts, concurring in part and
dissenting in part.

															The Lanham Act directs the Patent and Trademark
Office to refuse registration to marks that consist of or comprise
“immoral, deceptive, or scandalous matter.” 15 U. S. C.
§1052(a). Although the statute lists “immoral” and “scandalous”
separately, the PTO has long read those terms together to
constitute a unitary bar on “immoral or scandalous” marks.

															The Government concedes that the provision so
read is broad enough to reach not only marks that offend because of
their mode of expression (such as vulgarity and profanity) but also
marks that offend because of the ideas they convey. The Government
urges, however, that the provision can be given a narrowing
construction—it can be understood to cover only marks that offend
because of their mode of expression.

															The Court rejects that proposal on the ground
that it would in effect rewrite the statute. I agree with the
majority that the “immoral” portion of the provision is not
susceptible of a narrowing construction that would eliminate its
viewpoint bias. As Justice Sotomayor explains, however, the
“scandalous” portion of the provision is sus-ceptible of such a
narrowing construction. Standing alone, the term “scandalous” need
not be understood to reach marks that offend because of the ideas
they convey; it can be read more narrowly to bar only marks that
offend because of their mode of expression—marks that are obscene,
vulgar, or profane. That is how the PTO now understands the term,
in light of our decision in Matal v. Tam , 582
U. S. ___ (2017). See Tr. of Oral Arg. 4–5. I agree with
Justice Sotomayor that such a narrowing construction is appropriate
in this context.

															I also agree that, regardless of how exactly the
trademark registration system is best conceived under our
precedents—a question we left open in Tam —refusing
registration to obscene, vulgar, or profane marks does not offend
the First Amendment. Whether such marks can be registered does not
affect the extent to which their owners may use them in commerce to
identify goods. No speech is being restricted; no one is being
punished. The owners of such marks are merely denied certain
additional benefits associated with federal trademark registration.
The Government, meanwhile, has an interest in not associating
itself with trademarks whose content is obscene, vulgar, or
profane. The First Amendment protects the freedom of speech; it
does not require the Government to give aid and comfort to those
using obscene, vulgar, and profane modes of expression. For those
reasons, I concur in part and dissent in part. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–302

															_________________

															ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE,
PETITIONER v. ERIK BRUNETTI

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[June 24, 2019]

															Justice Breyer, concurring in part and
dissenting in part.

															Our precedents warn us against interpreting
statutes in ways that would likely render them unconstitutional. Virginia v. American Booksellers Assn., Inc. , 484 U.S.
383 , 397 (1988) (noting that a law “will be upheld” if it is
“ ‘readily susceptible’ to a narrowing construction that would
make it constitutional”); United States v. 12 200-ft.
Reels of Super 8MM. Film , 413 U.S.
123 , 130, n. 7 (1973) (noting our “duty” to adopt a
“ ‘fairly possible’ ” construction by which
constitutional doubts “ ‘may be avoided’ ” (quoting United States v. Thirty-seven Photographs , 402 U.S.
363 , 369 (1971))). Following these precedents, I agree with
Justice Sotomayor that, for the reasons she gives, we should
interpret the word “scandalous” in the present statute to refer
only to certain highly “vulgar” or “obscene” modes of expression.
See post , at 6–7 (opinion concurring in part and dissenting
in part).

															The question, then, is whether the First
Amendment permits the Government to rely on this statute, as nar-
rowly construed, to deny the benefits of federal trademark
registration to marks like the one at issue here, which involves
the use of the term “FUCT” in connection with a clothing line that
includes apparel for children and infants. Like Justice Sotomayor,
I believe the answer is “yes,” though my reasons differ slightly
from hers.

															I

															A

															In my view, a category-based approach to the
First Amendment cannot adequately resolve the problem before us. I
would place less emphasis on trying to decide whether the statute
at issue should be categorized as an exam- ple of “viewpoint
discrimination,” “content discrimination,” “commercial speech,”
“government speech,” or the like. Rather, as I have written before,
I believe we would do better to treat this Court’s speech-related
categories not as outcome-determinative rules, but instead as rules
of thumb. See Reed v. Town of Gilbert , 576 U. S.
___, ___ (2015) (opinion concurring in judgment) (slip op., at
1).

															After all, these rules are not absolute. The
First Amendment is not the Tax Code. Indeed, even when we consider
a regulation that is ostensibly “viewpoint discriminatory” or that
is subject to “strict scrutiny,” we sometimes find the regulation
to be constitutional after weighing the competing interests
involved. See, e.g. , Morse v. Frederick , 551 U.S.
393 , 397 (2007) (“[S]chools may take steps to safeguard those
entrusted to their care from speech that can reasonably be regarded
as encouraging illegal drug use”); Williams-Yulee v. Florida Bar , 575 U.S. 433, ___ (2015) (slip op., at 8)
(explaining that although “ ‘it is the rare case’ ” when
a statute satisfies strict scru- tiny, “those cases do arise”
(quoting Burson v. Freeman , 504
U.S. 191 , 211 (1992) (plurality opinion))).

															Unfortunately, the Court has sometimes applied
these rules—especially the category of “content discrimination”—too
rigidly. In a number of cases, the Court has struck down what I
believe are ordinary, valid regulations that pose little or no
threat to the speech interests that the First Amendment protects.
See Janus v. State, County, and Municipal Employees ,
585 U. S. ___, ___–___ (2018) (Kagan, J., dissenting) (slip
op., at 27–28); Sorrell v. IMS Health Inc. , 564 U.S.
552 , 589–592 (2011) (Breyer, J., dissenting); see generally Reed , 576 U. S., at ___–___ (opinion of Breyer, J.)
(slip op., at 2–4).

															Rather than deducing the answers to First
Amendment questions strictly from categories, as the Court often
does, I would appeal more often and more directly to the values the
First Amendment seeks to protect. As I have previously written, I
would ask whether the regulation at issue “works speech-related
harm that is out of proportion to its justifications.” United
States v. Alvarez , 567 U.S.
709 , 730 (2012) (opinion concurring in judgment); see Reed , 576 U. S., at ___ (opinion concurring in
judgment) (slip op., at 4) (discussing the matter further,
particularly in respect to the category of content
discrimination).

															B

															This case illustrates the limits of relying on
rigid First Amendment categories, for the statute at issue does not
fit easily into any of these categories.

															The Court has not decided whether the trademark
statute is simply a method of regulating pure “commercial speech.”
See Matal v. Tam , 582 U. S. ___, ___ (2017)
(opinion of Alito, J.) (slip op., at 24) (leaving open the question
whether trademarks are commercial speech); id. , at ___
(opinion of Kennedy, J.) (slip op., at 5) (same). There may be
reasons for doubt on that score. Trademarks, after all, have an
expressive component in addition to a commercial one, and the
statute does not bar anyone from speaking. To be sure, the statute
does regulate the commercial function of trademarks. But it does so
in a limited way designed primarily to ensure that a mark
identifies the product’s source. See Wal-Mart Stores, Inc. v. Samara Brothers, Inc. , 529 U.S.
205 , 212 (2000).

															The trademark statute cannot easily be described
as a regulation of “government speech,” either. Tam , 582
U. S., at ___–___ (slip op., at 12–18). The Government,
however, may be loosely associated with the mark because it
registers the mark and confers certain benefits upon the owner.

															What about the concept of a “public forum”?
Trademark registration has little in common with a traditional
public forum, as the register of trademarks is not a public park, a
street, or a similar forum for public debate. See Perry Ed.
Assn. v. Perry Local Educators’ Assn. , 460 U.S.
37 , 45 (1983). But one can find some vague resemblance between
trademark registration and what this Court refers to as a “limited
public forum” created by the government for private speech. See post , at 15 (opinion of Sotomayor, J.); Christian Legal
Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez , 561 U.S.
661 , 679, n. 11 (2010). The trademark registration system
also bears some resemblance to cases involving government subsidies
for private speech, as such programs—like trademark
registration—may grant a benefit to some forms of speech without
prohibiting other forms of speech. See post , at 15 (opinion
of Sotomayor, J.); Legal Services Corporation v. Velazquez , 531 U.S.
533 , 543–544 (2001) (noting that the First Amendment rules
applicable to limited public forums may be “instruc[tive]” “when
the government establishes a subsidy for specified ends”).

															As for the concepts of “viewpoint
discrimination” and “content discrimination,” I agree with Justice
Sotomayor that the boundaries between them may be difficult to
discern. Post , at 10; see Rosenberger v. Rector
and Visitors of Univ. of Va. , 515 U.S.
819 , 831 (1995) (“[T]he distinction is not a precise one”).
Even so, it is hard to see how a statute prohibiting the
registration of only highly vulgar or obscene words discriminates
based on “viewpoint.” Of course, such words often evoke powerful
emotions. Standing by themselves, however, these words do not
typically convey any particular viewpoint. See FCC v. Pacifica Foundation , 438 U.S.
726 , 746, n. 22 (1978) (noting that the Government’s
regulation of vulgar words was based not on “point of view,” but on
“the way in which [speech] is expressed”). Moreover, while a
restriction on the registration of highly vulgar words argu- ably
places a content-based limit on trademark registration, it is hard
to see why that label should be outcome-determinative here, for
regulations governing trademark registration “inevitably involve
content discrimination.” Reed , 576 U. S., at ___
(opinion of Breyer, J.) (slip op., at 3); see Tam , 582
U. S., at ___ (opinion of Kennedy, J.) (slip op., at 6)
(noting that the constitutionality of some content-based trademark
restrictions is “well settled”); Katyal, Trademark
Intersectionality, 57 UCLA L. Rev. 1601, 1602 (2010) (noting that
trademark law is “indelibly rooted in content-based
considerations”).

															In short, the trademark statute does not clearly
fit within any of the existing outcome-determinative categories.
Why, then, should we rigidly adhere to these categories? Rather
than puzzling over categorization, I believe we should focus on the
interests the First Amendment protects and ask a more basic
proportionality question: Does “the regulation at issue wor[k] harm
to First Amendment interests that is disproportionate in light of
the relevant regulatory objectives”? Reed , 576 U. S.,
at ___ (opinion of Breyer, J.) (slip op., at 4).

															II

															Based on this proportionality analysis, I
would conclude that the statute at issue here, as interpreted by
Justice Sotomayor, does not violate the First Amendment.

															How much harm to First Amendment interests does
a bar on registering highly vulgar or obscene trademarks work? Not
much. The statute leaves businesses free to use highly vulgar or
obscene words on their products, and even to use such words
directly next to other registered marks. Indeed, a business owner
might even use a vulgar word as a trademark, provided that he or
she is willing to forgo the benefits of registration. See post , at 2 (opinion of Sotomayor, J.); Tam , 582
U. S., at ___–___ (slip op., at 4–5).

															Moreover, the field at issue here, trademark
law, is a highly regulated one with a specialized mission: to
“hel[p] consumers identify goods and services that they wish to
purchase, as well as those they want to avoid.” Id. , at ___
(slip op., at 2). As I have noted, that mission, by its very
nature, requires the Government to impose limitations on speech. Supra , at 5. Trademark law therefore forbids the
registration of certain types of words—for example, those that will
likely “cause confusion,” or those that are “merely descriptive.”
15 U. S. C. §§1052(d), (e). For that reason, an applicant
who seeks to register a mark should not expect complete freedom to
say what she wishes, but should instead expect linguistic
regulation.

															Now consider, by way of contrast, the
Government’s interests in barring the registration of highly vulgar
or obscene trademarks. For one thing, when the Government registers
a mark, it is necessarily “involv[ed] in promoting” that mark. Post , at 18 (opinion of Sotomayor, J.). The Government has
at least a reasonable interest in ensuring that it is not involved
in promoting highly vulgar or obscene speech, and that it will not
be associated with such speech.

															For another, scientific evidence suggests that
certain highly vulgar words have a physiological and emotional
impact that makes them different in kind from most other words. See
M. Mohr, Holy S***: A Brief History of Swearing 252 (2013) (Mohr)
(noting the “emotional impact” of certain profane words that
“excite the lower-brain circuitry responsible for emotion,”
resulting in “electrical impulses that can be measured in the
skin”). These vulgar words originate in a different part of our
brains than most other words. Id. , at 250. And these types
of swear words tend to attract more attention and are harder to
forget than other words. See Jay, Caldwell-Harris, & King,
Recalling Taboo and Nontaboo Words, 121 Am. J. Psych. 83, 83–86
(2008) (collecting research). Notably, that has remained true even
as the list of offensive swear words has changed over time: In the
last few centuries, the list has evolved away from words of
religious disrespect and toward words that are sexually explicit or
that crudely describe bodily functions. Mohr 253. And the list of
swear words may be evolving yet again, perhaps in the direction of
including race-based epithets. Id. , at 254, 256.

															These attention-grabbing words, though
financially valuable to some businesses that seek to attract
interest in their products, threaten to distract consumers and
disrupt commerce. And they may lead to the creation of public
spaces that many will find repellant, perhaps on occasion creating
the risk of verbal altercations or even physical confrontations.
(Just think about how you might react if you saw someone wearing a
t-shirt or using a product emblazoned with an odious racial
epithet.) The Government thus has an interest in seeking to
disincentivize the use of such words in commerce by denying the
benefit of trademark registration. Cf. Brandenburg v. Ohio , 395 U.S.
444 , 447 (1969) ( per curiam ) (permitting regulation of
words “directed to inciting or producing imminent lawless action”
and “likely to incite or produce such action”).

															Finally, although some consumers may be
attracted to products labeled with highly vulgar or obscene words,
others may believe that such words should not be displayed in
public spaces where goods are sold and where children are likely to
be present. They may believe that trademark registration of such
words could make it more likely that children will be exposed to
public displays involving such words. To that end, the Government
may have an interest in protecting the sensibilities of children by
barring the registration of such words. See Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC , 518 U.S.
727 , 743 (1996) (plurality opinion) (noting the Government’s
interest in “protec[ting] children from exposure to patently
offensive sex-related material”); Ginsberg v. New
York , 390 U.S.
629 , 640 (1968) (noting the government’s “interest in the
well-being of its youth”).

															The upshot of this analysis is that the
narrowing construction articulated by Justice Sotomayor risks some
harm to First Amendment interests, but not very much. And applying
that interpretation seems a reasonable way—perhaps the only way—to
further legitimate government interests. Of course, there is a risk
that the statute might be applied in a manner that stretches it
beyond the few vulgar words that are encompassed by the narrow
interpretation Justice Sotomayor sets forth. That risk, however,
could be mitigated by internal agency review to ensure that agency
officials do not stray beyond their mandate. In any event, I do not
believe that this risk alone warrants the facial invalidation of
this statute.

															I would conclude that the prohibition on
registering “scandalous” marks does not “wor[k] harm to First
Amendment interests that is disproportionate in light of the
relevant regulatory objectives.” Reed , 576 U. S., at
___ (opinion of Breyer, J.) (slip op., at 4). I would therefore
uphold this part of the statute. I agree with the Court, however,
that the bar on registering “immoral” marks violates the First
Amendment. Because Justice Sotomayor reaches the same conclusions,
using roughly similar reasoning, I join her opinion insofar as it
is consistent with the views set forth here. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–302

															_________________

															ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE,
PETITIONER v. ERIK BRUNETTI

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[June 24, 2019]

															Justice Sotomayor, with whom Justice Breyer
joins, concurring in part and dissenting in part.

															The Court’s decision today will beget
unfortunate results. With the Lanham Act’s scandalous-marks
provision, 15 U. S. C. §1052(a), struck down as
unconstitutional viewpoint discrimination, the Government will have
no statutory basis to refuse (and thus no choice but to begin)
registering marks containing the most vulgar, profane, or obscene
words and images imaginable.

															The coming rush to register such trademarks—and
the Government’s immediate powerlessness to say no—is eminently
avoidable. Rather than read the relevant text as the majority does,
it is equally possible to read that provision’s bar on the
registration of “scandalous” marks to address only obscenity,
vulgarity, and profanity. Such a narrowing construction would save
that duly enacted legislative text by rendering it a reasonable,
viewpoint-neutral restriction on speech that is permissible in the
context of a beneficial governmental initiative like the
trademark-registration system. I would apply that narrowing
construction to the term “scandalous” and accordingly reject
petitioner Erik Brunetti’s facial challenge.

															I

															Trademark registration, as the majority notes,
is not required for using, owning, or suing others for infringing a
trademark. Rather, the trademark-registration system is an
ancillary system set up by the Government that confers a small
number of noncash benefits on trademark-holders who register their
marks. See ante , at 2.

															The Government need not provide this largely
commercial benefit at all. Once the Government does provide the
benefit, however, it may not restrict access on the basis of the
viewpoint expressed by the relevant mark. See ante, at 4–5.
For that reason, the Court concluded in Matal v. Tam ,
582 U. S. ___ (2017), that §1052(a)’s provision directing the
U. S. Patent and Trademark Office (PTO) to deny registration to
“disparag[ing]” trademarks was unconstitutional. This case centers
on a neighboring set of restrictions: §1052(a)’s provision barring
registration of marks featuring “immoral . . . or
scandalous matter.”

															The majority finds viewpoint discrimination here
by treating the terms “scandalous” and “immoral” as comprising a
unified standard that allows messages “aligned with conventional
moral standards” but forbids messages “hostile to” such standards.
See ante , at 6. While the major- ity’s interpretation of the
statute is a reasonable one, it is not the only reasonable one.

															A

															As the majority notes, there are dictionary
definitions for both “immoral” and “scandalous” that do suggest a
viewpoint-discriminatory meaning. See ante , at 5–6. And as
for the word “immoral,” I agree with the majority that there is no
tenable way to read it that would ameliorate the problem. The word
clearly connotes a preference for “rectitude and morality” over its
opposite. See ante , at 5.

															It is with regard to the word “scandalous” that
I part ways with the majority. Unquestionably, “scandalous” can
mean something similar to “immoral” and thus favor some viewpoints
over others. See ante , at 6. But it does not have to be read
that way. To say that a word or image is “scandalous” can instead
mean that it is simply indecent, shocking, or generally offensive.
See Funk & Wagnalls New Standard Dictionary 2186 (1944) (Funk
& Wagnalls) (“shocking to the sense of truth, decency, or propriety; disgraceful, offensive” (emphasis added));
Webster’s New International Dictionary 2229 (1942) (“exciting
reprobation; calling out condemnation”); 9 Oxford English
Dictionary 175 (1933) (“Of the nature of, or causing, a
‘stumbling-block’ or occasion of offence”); 8 Century Dictionary
and Cyclopedia 5374 (1911) (Century Dictionary) (“Causing scandal
or offense; exciting reproach or reprobation; extremely offensive
to the sense of duty or propriety; shameful; shocking”); see also
Webster’s New College Dictionary 1008 (3d ed. 2005) (“shocking or
offensive”). That offensiveness could result from the views
expressed, but it could also result from the way in which those
views are expressed: using a manner of expression that is “shocking
to [one’s] sense of . . . decency,” Funk & Wagnalls
2186, or “extremely offensive to the sense of . . .
propriety,” 8 Century Dictionary 5374.

															The word “scandalous” on its own, then, is
ambiguous: It can be read broadly (to cover both offensive ideas
and offensive manners of expressing ideas), or it can be read
narrowly (to cover only offensive modes of expression). That alone
raises the possibility that a limiting construction might be
appropriate. But the broader text confirms the reasonableness of
the narrower reading, because the word “scandalous” appears in the
statute alongside other words that can, and should, be read to
constrain its scope.

															It is foundational “that a statute is to be read
as a whole, since the meaning of statutory language, plain or not,
depends on context.” King v. St. Vincent’s Hospital , 502 U.S.
215 , 221 (1991) (citation omitted). “ ‘Words are not
pebbles in alien juxtaposition; they have only a communal
existence; and not only does the meaning of each interpenetrate the
other, but all in their aggregate take their purport from the
setting in which they are used.’ ” Ibid. (quoting NLRB v. Federbush Co. , 121 F.2d 954, 957 (CA2 1941)
(L. Hand, J.)). Accordingly, and relatedly, courts should, to the
extent possible, read statutes so that “ ‘no clause, sentence,
or word shall be superfluous, void, or insignificant.’ ” TRW Inc. v. Andrews , 534 U.S.
19 , 31 (2001).[ 1 ]

															Here, Congress used not only the word
“scandalous,” but also the words “immoral” and “disparage,” in the
same block of statutory text—each as a separate feature that could
render a mark unregistrable. See §1052(a). Tam already
decided that “disparage” served to prohibit marks that were
offensive because they derided a particular person or group. See
582 U. S., at ___ (opinion of Alito, J.) (slip op., at 22)
(“It denies registration to any mark that is offensive to a
substantial percentage of the members of any group”); id., at ___ (opinion of Kennedy, J.) (slip op., at 2) (“[A]n applicant
may register a positive or benign mark but not a derogatory one”).
That defines one of the three words. Meanwhile, as the majority
explains, the word “immoral” prohibits marks that are offensive
because they transgress widely held moral beliefs. See ante ,
at 5. That defines a second of the three words.

															With marks that are offensive because they are
disparaging and marks that are offensive because they are immoral
already covered, what work did Congress intend for “scandalous” to
do? A logical answer is that Congress meant for “scandalous” to
target a third and distinct type of offensiveness: offensiveness in
the mode of communication rather than the idea. The other two words
cover marks that are offensive because of the ideas they express;
the “scandalous” clause covers marks that are offensive because of
the mode of expression, apart from any particular message or
idea.

															To be sure, there are situations in which it
makes sense to treat adjoining words as expressing the same or
highly similar concepts (even at the risk of some redundancy). Cf. Swearingen v. United States , 161
U.S. 446 , 450 (1896) (construing “ ‘obscene, lewd or
lascivious’ ” to have a unified meaning). That is essentially
the approach that the majority takes. See ante, at
6.[ 2 ] But that is not the
approach that Congress appears to have intended here. For example,
“scandalous” does not serve as a broader catchall at the end of a
list of similar words that all point in one direction. E.g., Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler , 537
U.S. 371 , 384 (2003). Nor is “scandalous” simply grouped among
a number of closely related terms that help define its meaning. E.g., Gustafson v. Alloyd Co. , 513 U.S.
561 , 575 (1995).

															The text of §1052, instead, is a grab bag: It
bars the registration of marks featuring “immoral, deceptive, or
scandalous matter,” as well as, inter alia , disparaging
marks, flags, insignias, mislabeled wines, and deceased Presidents.
See §§1052(a)–(e). This is not, in other words, a situation in
which Congress was simply being “verbos[e] and proli[x],” Bruesewitz v. Wyeth LLC , 562
U.S. 223 , 236 (2011), using two synonyms in rapid-fire
succession when one would have done fine. Instead, “scandalous” and
“immoral” are separated by an unrelated word (“deceptive”) and
mixed in with a lengthy series of other, unre- lated concepts. The
two therefore need not be interpreted as mutually reinforcing under
the Court’s precedents. See Graham County Soil and Water
Conservation Dist. v. United States ex rel. Wilson , 559 U.S.
280 , 288 (2010).

															For that reason, while the majority offers a
reasonable reading of “scandalous,” it also unnecessarily and
ill-advisedly collapses the words “scandalous” and “immoral.”
Instead, it should treat them as each holding a distinct,
nonredundant meaning, with “immoral” covering marks that are
offensive because they transgress social norms, and “scandalous”
covering marks that are offensive because of the mode in which they
are expressed.

															What would it mean for “scandalous” in §1052(a)
to cover only offensive modes of expression? The most obvious
ways—indeed, perhaps the only conceivable ways—in which a trademark
can be expressed in a shocking or offensive manner are when the
speaker employs obscenity, vulgarity, or profanity.[ 3 ] Obscenity has long been defined by this
Court’s decision in Miller v. California , 413 U.S.
15 (1973). See id., at 24–26. As for what constitutes
“scandalous” vulgarity or profanity, I do not offer a list, but I
do interpret the term to allow the PTO to restrict (and potentially
promulgate guidance to clarify) the small group of lewd words or
“swear” words that cause a visceral reaction, that are not commonly
used around children, and that are prohibited in comparable
settings.[ 4 ] Cf. 18
U. S. C. §1464 (prohibiting “obscene, indecent, or
profane language” in radio communications); FCC v. Pacifica Foundation , 438 U.S.
726 , 746, and n. 22 (1978) (opinion of Stevens, J.)
(regulator’s objection to a monologue containing various
“four-letter words” was not to its “point of view, but to the way
in which it [wa]s expressed”); 46 CFR §67.117(b)(3) (2018) (Coast
Guard regulation prohibiting vessel names that “contain” or are
“phonetically identical to obscene, indecent, or profane language,
or to racial or ethnic epithets”); see also Jacobs, The Public
Sensibilities Forum, 95 Nw. U. L. Rev. 1357, 1416–1417, and
n. 432 (2001) (noting that “swear words” are “perhaps more
than any other categor[y] capable of specific articulation” and
citing one state agency’s list). Of course, “scandalous” offers its
own limiting principle: if a word, though not exactly polite,
cannot be said to be “scandalous”— e.g., “shocking” or
“extremely offensive,” 8 Century Dictionary 5374—it is clearly not
the kind of vulgarity or profanity that Congress intended to
target. Everyone can think of a small number of words (including
the apparent homonym of Brunetti’s mark) that would, however,
plainly qualify.[ 5 ]

															B

															A limiting construction like the one just
discussed is both appropriate in this context and consistent with
past precedent. First, while a limiting construction must always be
at least reasonable, there are contexts in which imposing such a
construction is more appropriate than others. The most obvious
example of a setting where more caution is required is in the realm
of criminal statutes, where considerations such as the prohibition
against vagueness and the rule of lenity come into play. See Reno v. American Civil Liberties Union , 521
U.S. 844 , 872 (1997) (noting that “[t]he severity of criminal
sanctions” can increase First Amendment concerns); Board of
Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc. , 482 U.S.
569 , 575–576 (1987) (declining to apply a limiting construction
to a provision that banned “ ‘ First Amendment
activities’ ” from an airport and noting that the limiting
construction proposed would “ ‘confe[r] on police a virtually
unrestrained power to arrest and charge persons with a
violation,’ ” leading to “ ‘self-evident’ ”
“ ‘opportunity for abuse’ ”). Here, however, the question
is only whether the Government must be forced to provide the
ancillary benefit of trademark registration to pre-existing
trademarks that use even the most extreme obscenity, vulgarity, or
profanity. The stakes are far removed from a situation in which,
say, Brunetti was facing a threat to his liberty, or even his right
to use and enforce his trademark in commerce.

															Second, the Court has in the past accepted or
applied similarly narrow constructions to avoid constitutional
infirmities. In Chaplinsky v. New Hampshire , 315 U.S.
568 (1942), for example, the Court accepted the New Hampshire
Supreme Court’s narrowing of a state statute covering “ ‘any
offensive, derisive or annoying word,’ ” id., at 569,
to reach only those words that would strike the average person as
being “plainly likely to cause a breach of the peace by the
addressee,” id., at 573. “[T]hus construed,” this Court
decided, the statute did not violate the right to free speech. Ibid. ; see also Boos v. Barry , 485 U.S.
312 , 329–330 (1988) (accepting Court of Appeals’ construction
of a statute making it illegal “ ‘to congregate within 500
feet of any [embassy, legation, or consulate] and refuse to
disperse after having been ordered so to do by the police’ ”
to reach only “congregations that are directed at an embassy” and
“ ‘only when the police reason- ably believe that a threat to
the security or peace of the embassy is present’ ”).

															In Frisby v. Schultz , 487 U.S.
474 (1988), the Court addressed an ordinance that prohibited
“ ‘picketing before or about the residence or dwelling of any
individual.’ ” Id., at 477. The Court construed the
statute to reach only “focused picketing taking place solely in
front of a particular residence.” Id., at 483. Given that
“narrow scope,” the statute was not facially unconstitutional. Id., at 488; see also In re Brunetti , 877 F.3d
1330, 1358 (CA Fed. 2017) (Dyk, J., concurring in judgment) (noting
this Court’s narrow constructions of federal obscenity
statutes).

															Taking the word “scandalous” to target only
those marks that employ an offensive mode of expression follows a
similar practice. To be sure, the word could be read more broadly,
thereby sweeping unconstitutionally into viewpoint discrimination.
And imposing a limiting construction is, of course, “not a license
for the judiciary to rewrite language enacted by the legislature.” United States v. Albertini , 472
U.S. 675 , 680 (1985). But where the Court can reasonably read a
statute like this one to save it, the Court should do so. See Stern v. Marshall , 564 U.S.
462 , 477–478 (2011); NLRB v. Jones & Laughlin
Steel Corp. , 301 U.S.
1 , 30 (1937).

															II

															Adopting a narrow construction for the word
“scandalous”—interpreting it to regulate only obscenity, vulgarity,
and profanity—would save it from unconstitutionality. Properly
narrowed, “scandalous” is a viewpoint-neutral form of content
discrimination that is permissible in the kind of discretionary
governmental program or limited forum typified by the
trademark-registration system.

															A

															Content discrimination occurs whenever a
government regulates “particular speech because of the topic
discussed or the idea or message expressed.” Reed v. Town
of Gilbert , 576 U. S. ___, ___ (2015) (slip op., at 6);
see also Ward v. Rock Against Racism , 491 U.S.
781 , 791 (1989) (“Government regulation of expressive activity
is content neutral so long as it is ‘ justified without
reference to the content of the regulated speech’ ”).
Viewpoint discrimination is “an egregious form of content
discrimination” in which “the government targets not subject
matter, but particular views taken by speakers on a subject.” Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S.
819 , 829 (1995).

															While the line between viewpoint-based and
viewpoint-neutral content discrimination can be “slippery,” see
Corbin, Mixed Speech: When Speech Is Both Private and Governmental,
83 N. Y. U. L. Rev. 605, 651 (2008), it is in any event clear that
a regulation is not viewpoint discriminatory (or even content
discriminatory) simply because it has an “incidental effect” on a
certain subset of views. Ward , 491 U. S., at 791. Some
people, for example, may have the viewpoint that society should be
more sexually liberated and feel that they cannot express that view
sufficiently without the use of pornographic words or images. That
does not automatically make a restriction on pornography into
viewpoint discrimination, despite the fact that such a restriction
limits communicating one’s views on sexual liberation in that way.
See ibid. ; Renton v. Playtime Theatres, Inc. , 475 U.S.
41 , 48 (1986).

															Restrictions on particular modes of expression
do not inherently qualify as viewpoint discrimination; they are not
by nature examples of “the government target[ing] . . .
particular views taken by speakers on a subject.” Rosenberger , 515 U. S., at 829. For example, a ban on
lighting fires in the town square does not facially violate the
First Amendment simply because it makes it marginally harder for
would-be flag-burners to express their views in that place. See R. A. V. v. St. Paul , 505 U.S.
377 , 385 (1992). By the same token, “fighting words are
categorically excluded from the protection of the First Amendment”
not because they have no content or express no viewpoint (often
quite the opposite), but because “their content embodies a
particularly intolerable (and socially unnecessary) mode of
expressing whatever idea the speaker wishes to convey.” Id., at 393; see id., at 385–386; cf. Bolger v. Youngs Drug Products Corp. , 463 U.S.
60 , 84 (1983) (Stevens, J., concurring in judgment) (“It
matters whether a law regulates communications for their ideas or
for their style”).

															A restriction on trademarks featuring obscenity,
vulgarity, or profanity is similarly viewpoint neutral, though it
is naturally content-based.[ 6 ]
See R. A. V. , 505 U. S. , at 383 (kinds of speech
like “obscenity, defamation, etc.” may “be regulated because of
their constitutionally proscribable content” (emphasis deleted));
see also Bethel School Dist. No. 403 v. Fraser , 478
U.S. 675 , 685 (1986) (treating punishment of “offensively lewd
and indecent speech” as viewpoint neutral); Pacifica , 438
U. S., at 745–746, and n. 22 (treating regulation of
profane monologue as viewpoint neutral). Indeed, the statute that
the Court upheld in Chaplinsky itself had been construed to
cover, among other kinds of “disorderly words,” “profanity,
obscenity and threats,” 315 U. S., at 573, despite the fact
that such words had been used in that case to communicate an
expressive message, id., at 574. To treat a restriction on
vulgarity, profanity, or obscenity as viewpoint discrimination
would upend decades of precedent.[ 7 ]

															Brunetti invokes Cohen v. California , 403 U.S.
15 (1971), to argue that the restriction at issue here is
viewpoint discriminatory. But Cohen —which did not employ the
precise taxonomy that is more common today—does not reach as far as
Brunetti wants. Cohen arose in the criminal context: Cohen
had been arrested and imprisoned under a California criminal
statute targeting disturbances of the peace because he was “wearing
a jacket bearing the words ‘F[***] the Draft.’ ” Id., at 16. The Court held that applying that statute to Cohen because
of his jacket violated the First Amendment. Id., at 26. But
the Court did not suggest that the State had targeted Cohen to
suppress his view itself ( i.e., his sharp distaste for the
draft), such that it would have accepted an equally colorful
statement of praise for the draft (or hostility toward war
protesters). Rather, the Court suggested that the State had simply
engaged in what later courts would more precisely call
viewpoint-neutral content discrimination—it had regu- lated “the
form or content of individual expression.” Id., at 24; see id., at 25–26. Cohen also famously recognized that
“words are often chosen as much for their emotive as their
cognitive force,” id., at 26, and that “one man’s vulgarity
is another’s lyric,” id., at 25. That is all consistent with
observing that a plain, blanket restriction on profanity
(regardless of the idea to which it is attached) is a
viewpoint-neutral form of content discrimination. The essence of Cohen ’s discussion is that profanity can serve to tweak (or
amplify) the viewpoint that a message expresses, such that it can
be hard to disentangle the profanity from the underlying
message—without the profanity, the message is not quite the same.
See id., at 25–26. But those statements merely reinforce
that profanity is still properly understood as protected First
Amendment content. See also R. A. V. , 505
U. S., at 384–385. Cohen ’s discussion does not also go
further to declare, as Brunetti suggests, that a provision that
treats all instances of profanity equally is nevertheless by nature
an instance of “the government target[ing] . . .
particular views taken by speakers on a subject.” Rosenberger , 515 U. S., at 829. To be sure, such a
restriction could have the incidental effect of tamping down the
overall volume of debate on all sides. But differential effects
alone, as explained above, do not render a restriction viewpoint
(or even content) discriminatory. See Ward , 491 U. S.,
at 791–792.[ 8 ] Cohen therefore does not resolve this
case in Brunetti’s favor. Yes, Brunetti has been, as Cohen was,
subject to content discrimination, but that content discrimination
is properly understood as viewpoint neutral. And whereas even
viewpoint-neutral content discrimination is (in all but the most
compelling cases, such as threats) impermissible in the context of
a criminal prosecution like the one that Cohen faced, Brunetti is
subject to such regulation only in the context of the federal
trademark-registration system. I discuss next why that distinction
matters.

															B

															While the Court has often subjected even
viewpoint-neutral content discrimination to strict constitutional
scrutiny, see, e.g., Reed , 576 U. S., at ___
(slip op., at 6), there are contexts in which it does not, see, e.g., Rosenberger , 515 U. S., at 829–830. When that is
the case, the difference between viewpoint-based and
viewpoint-neutral content discrimination can be decisive. The
federal trademark-registration system is such a context.

															Rights to a trademark itself arise through use,
not registration. Regardless of whether a trademark is registered,
it can be used, owned, and enforced against would-be infringers.
See B&B Hardware, Inc. v. Hargis Industries,
Inc. , 575 U. S. ___, ___, ___ (2015) (slip op., at 3, 5).
Trademark registration, meanwhile, confers several ancillary
benefits on trademark-holders who meet Congress’ specifications,
including for example, additional protections against infringers.
See ante , at 2; Tam , 582 U. S., at ___ (slip
op., at 5). Registering a mark in the Government’s searchable
register puts the world on notice (whether actual or constructive)
that a party is asserting ownership of that mark.[ 9 ] Registration, in short, is a helpful
system, but it is one that the Government is under no obligation to
establish and that is collateral to the existence and use of
trademarks themselves. There is no evidence that speech or commerce
would be endangered if the Government were not to provide it at
all.

															When the Court has talked about governmental
initiatives like this one before, it has usually used one of two
general labels. In several cases, the Court has treated such
initiatives as a limited public (or nonpublic) forum. See, e.g.,
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of
Law v. Martinez , 561 U.S.
661 , 669–670, 682 (2010) (“ ‘Registered Student
Organization’ ” program providing various financial and
nonfinancial benefits to recognized law-school student groups); Rosenberger , 515 U. S., at 823–824, 829–830 (“Student
Activities Fund” for registered campus student groups); Cornelius v. NAACP Legal Defense & Ed. Fund,
Inc. , 473 U.S.
788 , 790–791, 799–801, 806 (1985) (“Combined Federal Campaign”
literature enabling approved charitable organizations to solicit
donations from federal employees). In other situations, the Court
has discussed similar initiatives as government programs or
subsidies. See, e.g., Legal Services Corporation v. Velazquez , 531 U.S.
533 , 536, 543–544 (2001) (government program distributing funds
to legal-services organizations); National Endowment for
Arts v. Finley , 524 U.S.
569 , 573, 585–587 (1998) (competitive government grant-making
program to support the arts).[ 10 ] In each of these situations, a governmental body
established an initiative that supported some forms of expression
without restricting others. Some speakers were better off, but no
speakers were worse off.

															Regardless of the finer distinctions between
these labels, reasonable, viewpoint-neutral content discrimination
is generally permissible under either framework. See Christian
Legal Soc. , 561 U. S., at 679 (“Any access barrier must be
reasonable and viewpoint neutral”); Velazquez , 531
U. S., at 543–544, 548–549 (analogizing to limited-forum cases
and explaining that “[w]here private speech is involved, even
Congress’ antecedent funding decision cannot be aimed at the
suppression of ideas thought inimical to the Government’s own
interest”); see also Ysursa v. Pocatello Ed. Assn. , 555 U.S.
353 , 355 (2009) (finding government conduct that did not
restrict speech but sim- ply “decline[d] to promote” it valid where
it was “reasonable in light of the State’s interest”). Perhaps for
that reason, the Court has often discussed the two frameworks as at
least closely related. See, e.g., Christian Legal Society ,
561 U. S., at 682 (“[T]his case fits comfortably within the
limited-public forum category, for [the plaintiff], in seeking what
is effectively a state subsidy, faces only indirect pressure
. . . ”); Velazquez , 531 U. S., at 544 (“As this
suit involves a subsidy, limited forum cases . . . may
not be controlling in a strict sense, yet they do provide some
instruction”).

															Whichever label one chooses here, the federal
system of trademark registration fits: It is, in essence, an
opportun- ity to include one’s trademark on a list and thereby
secure the ancillary benefits that come with registration.[ 11 ] Just as in the limited-forum and
government-program cases, some speakers benefit, but no speakers
are harmed. Brunetti, for example, can use, own, and enforce his
mark regardless of whether it has been registered. Whether he may
register his mark can therefore turn on reasonable,
viewpoint-neutral content regulations.[ 12 ]

															C

															Prohibiting the registration of obscene,
profane, or vulgar marks qualifies as reasonable,
viewpoint-neutral, content-based regulation. Apart from any
interest in regulating commerce itself, the Government has an
interest in not promoting certain kinds of speech, whether because
such speech could be perceived as suggesting governmental
favoritism or simply because the Government does not wish to
involve itself with that kind of speech. See, e.g., Ysursa ,
555 U. S., at 359–360; Cornelius , 473 U. S., at 809.
While “there is no evidence that the public associates the contents
of trademarks with the Federal Government,” Tam , 582
U. S., at ___ (slip op., at 17), registration nevertheless
entails Government involvement in promoting a particular mark.
Registration requires the Government to publish the mark, as well
as to take steps to combat international infringement. See 15
U. S. C. §§1062, 1124; see also Brief for United States
35. The Government has a reasonable interest in refraining from
lending its ancillary support to marks that are obscene, vulgar, or
profane. Cf. Hustler Magazine, Inc. v. Falwell , 485 U.S.
46 , 56 (1988) (“[S]peech that is vulgar, offensive, and
shocking is not entitled to absolute constitutional protection
under all circumstances” (internal quotation marks omitted)).

															III

															“The cardinal principle of statutory
construction is to save and not to destroy.” Jones &
Laughlin Steel Corp. , 301 U. S., at 30; see also Hooper v. California , 155 U.S.
648 , 657 (1895) (“The elementary rule is that every reasonable
construction must be resorted to, in order to save a statute from
unconstitutionality”). In directing the PTO to deny the ancillary
benefit of registration to trademarks featuring “scandalous”
content, Congress used a word that is susceptible of different
meanings. The majority’s reading would render the provision
unconstitutional; mine would save it. Under these circumstances,
the Court ought to adopt the narrower construction, rather than
permit a rush to register trademarks for even the most viscerally
offensive words and images that one can imagine.[ 13 ]

															That said, I emphasize that Brunetti’s challenge
is a facial one. That means that he must show that “ ‘a
substantial number of [the scandalous-marks provision’s]
applications are unconstitutional, judged in relation to the
[provision’s] plainly legitimate sweep.’ ” United
States v. Stevens , 559 U.S.
460 , 473 (2010). With “scandalous” narrowed to reach only
obscene, profane, and vulgar content, the provision would not be
overly broad. Cf. Frisby , 487 U. S., at 488 (rejecting
a facial challenge after adopting a limiting construction); Boos , 485 U. S., at 331 (same). Even so, hard cases
would remain, and I would expect courts to take seriously
as-applied challenges demonstrating a danger that the provision had
been used to restrict speech based on the views expressed rather
than the mode of expression.[ 14 ] Cf. Finley , 524 U. S., at 587 (reserving
the possibility of as-applied challenges).

															Freedom of speech is a cornerstone of our
society, and the First Amendment protects Brunetti’s right to use
words like the one at issue here. The Government need not, however,
be forced to confer on Brunetti’s trademark (and some more extreme)
the ancillary benefit of trademark registration, when “scandalous”
in §1052(a) can reasonably be read to bar the registration of only
those marks that are obscene, vulgar, or profane. Though I concur
as to the unconstitutionality of the term “immoral” in §1052(a), I
respectfully dissent as to the term “scandalous” in the same
statute and would instead uphold it under the narrow construction
discussed here. Notes 1 For example, McDonnell v. United States , 579 U. S. ___
(2016), involved a statute that defined an “ ‘official
act’ ” as “ ‘any decision or action on any question,
matter, cause, suit, proceeding or controversy.’ ” Id .,
at ___ (slip op., at 13). The Court declined to read
“ ‘question’ ” and “ ‘matter’ ” as covering “a
typical meeting, call, or event arranged by a public official”
because doing so would deprive the words “ ‘cause, suit,
proceeding or controversy’ ” of meaning. Id ., at ___
(slip op., at 16). 2 That interpretive move
appears to accord with the Federal Circuit and the PTO’s past
practice. Ante, at 2–3. Nevertheless, it is by no means the
only reasonable way to read this text, and indeed some courts have
suggested that “scandalous” can and should be applied independently
of “immoral,” see, e.g., In re McGinley , 660 F.2d 481, 485,
n. 6 (CCPA 1981). 3 Other modes of
expression, such as fighting words or extremely loud noises, could
also be called shocking or offensive in certain contexts, see R. A. V. v. St. Paul , 505 U.S.
377 , 386 (1992), but it is hard to see how they would apply in
the context of a trademark. 4 Although the Government
represents, and case law and scholarship appear to confirm, that
“scandalous” in §1052(a) has often been applied to cover this kind
of content, see Brief for United States 27; In re Boulevard
Entertainment, Inc. , 334 F.3d 1336 , 1340 (CA Fed. 2003); Snow, Denying Trademark for
Scandalous Speech, 51 U. C. D. L. Rev. 2331, 2339 (2018) (Snow),
the majority notes that the PTO has hardly amassed a perfect track
record of consistency, see ante , at 6–8. Be that as it may,
the Government undeniably receives a large volume of trademark
applications that easily would fit under this rubric (examples of
which I will spare the reader). See In re Brunetti , 877 F.3d
1330, 1355 (CA Fed. 2017) (noting an appendix containing marks
denied registration “whose offensiveness cannot be reasonably
questioned”). As a result of today’s ruling, all of those marks
will now presumably have to be registered. 5 There is at least one
particularly egregious racial epithet that would fit this
description as well. While Matal v. Tam , 582
U. S. ___ (2017), removed a statutory basis to deny the
registration of racial epithets in general, the Government
represented at oral argument that it is holding in abeyance
trademark applications that use that particular epithet. See Tr. of
Oral Arg. 61. As a result of today’s ruling, the Government will
now presumably be compelled to register marks containing that
epithet as well rather than treating it as a “scandalous” form of
profanity under §1052(a). 6 Of course, obscenity
itself is subject to a longstanding exception to First Amendment
protection, see Brown v. Entertainment Merchants
Assn. , 564 U.S.
786 , 791 (2011), so it is proscribable in any event. As for
vulgarity and profanity, however, they are not subject to any such
exception, and a regulation like §1052(a)’s ban on the registration
of scandalous marks is not “ ‘justified without reference to
the content of the regulated speech’ ” in the way that a
simple regulation of time, place, or manner is. Ward v. Rock Against Racism , 491 U.S.
781 , 791 (1989) (emphasis deleted). 7 It would also risk
destabilizing government practice in a number of other contexts.
Governments regulate vulgarity and profanity, for example, on
city-owned buses and billboards, e.g., American Freedom Defense
Initiative v. Massachusetts Bay Transp. Auth. , 989 F.
Supp. 2d 182, 183 (Mass. 2013) (noting such a prohibition), on
registered vessels, 46 CFR §67.117(b)(3) (Coast Guard regulations),
and at school events, e.g., Bethel School Dist. No. 403 v. Fraser , 478 U.S.
675 , 677–678, 685 (1986) (upholding discipline of high school
student). 8 That does not mean, of
course, that a government may elude harsher scrutiny or
invalidation of a regulation by simply claiming disinterest in a
speaker’s message, see United States v. Eichman , 496 U.S.
310 , 315–317 (1990), or by concealing an attempt to favor some
views over others in superficially neutral garb, see Renton v. Playtime Theatres, Inc. , 475 U.S.
41 , 46–49 (1986); cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S.
520 , 533–534 (1993). But there is no evidence in the record
from which to conclude that Congress enacted the scandalous-marks
provision in order to advantage certain views over others. And
where a denial of trademark registration by the PTO raises such a
concern, it would be proper for an applicant to bring an as-applied
challenge. See infra , at 18–19. 9 See 15 U. S. C.
§1072; U. S. Patent & Trademark Office, Search Trademark
Database,
https://www.uspto.gov/trademarks-application-process/search-trademark-database
(as last visited June 20, 2019). 10 In Tam , four Justices concluded that cash-subsidy programs like
the one in Finley were “not instructive in analyzing”
trademark registration. 582 U. S., at ___ (opinion of Alito,
J.) (slip op., at 20). Trademark registration differs, of course,
because any “subsidy” comes in the form of a noncash benefit, but
that difference does not foreclose understanding the registration
system as a beneficial, noncash governmental program. No Justice,
meanwhile, rejected the limited-public-forum analogy, see id., at ___–___, and n. 16 (slip op., at 22–23, and n.
16) (calling such cases “[p]otentially more analogous” and
reserving the question), and scholars have noted arguments for
adopting it. See Snow 2364–2366; Katyal, Trademark
Intersectionality, 57 UCLA L. Rev. 1601, 1676–1681 (2010); Lefstin,
Note, Does the First Amendment Bar Cancellation of REDSKINS? 52
Stan. L. Rev. 665, 706–707 (2000). 11 Not
every registration system would necessarily fit the same bill,
whether because not every such system invites expressive content
like trademarks or simply because other forms of registration may
not be so ancillary as to qualify solely as a
“benefit.” 12 Though I do not address the
constitutionality of provisions not before the Court, I note as
well that the “scandalous” bar in §1052(a) is hardly the only
provision in §1052 that could be characterized as content
discriminatory. See, e.g., §1052(b) (no flags or insignias);
§1052(c) (no unapproved markers of deceased U. S. Presidents
during the lives of their spouses). 13 As
noted above, I agree with the majority that §1052(a)’s bar on the
registration of “immoral” marks is unconstitutional viewpoint
discrimination. See supra, at 2. I would simply sever that
provision and uphold the bar on “scandalous” marks. See Reno v. American Civil Liberties Union , 521
U.S. 844 , 882–883 (1997); Brockett v. Spokane
Arcades, Inc. , 472 U.S.
491 , 504–507 (1985); see also Tam , 582 U. S., at
___ (slip op., at 26) (striking down only the disparagement
clause). 14 The
majority adverts to details in the record that could call into
question whether the PTO engaged in viewpoint discrimination in
this very case. See ante , at 3. Because a facial challenge
is the only challenge before the Court, I do not address whether an
as-applied challenge could have merit here.

Summary: The Supreme Court ruled that the Lanham Act's prohibition on registering "immoral or scandalous" trademarks with the U.S. Patent and Trademark Office (PTO) violates the First Amendment's free speech clause. The Court found that the provision discriminates based on viewpoint, similar to its ruling in Matal v. Tam, which invalidated the Lanham Act's ban on disparaging trademarks. The Court held that the government cannot discriminate against certain ideas or viewpoints in the trademark registration process, regardless of whether it provides a subsidy or creates a limited public forum. Justice Kagan delivered the opinion, with Justices Alito, Gorsuch, and Thomas writing concurring opinions.