The Slants – a Name Worth Fighting For
The Slants – A Name Worth Fighting For
December 11, 2017 Omaha, NE
Faculty Bios
Simon Tam is an Asian American musician, author, and activist. He is best known as the founder of the world's first and only all-Asian American dance-rock band, The Slants, who won their case in the U.S. Supreme Court against the U.S government in a landmark legal battle to expand First Amendment rights for minorities. Mr. Tam is dedicated to raising awareness of racial disparities, social justice, and issues that affect the Asian American community. Mr. Tam has also appeared on TEDx as a speaker.
12/1/2017
MATAL V. TAM Losing the Line Between Art & Activism
@SimonTheTam of @TheSlants
BEHIND BARS
@SimonTheTam of @TheSlants
IT BEGAN WITH A FILM
@SimonTheTam of @TheSlants
1 12/1/2017
I FOUGHT THE LAW
@SimonTheTam of @TheSlants
…AND THE LAW WON
@SimonTheTam of @TheSlants
“LAUDABLE BUT NOT INFLUENTIAL”
@SimonTheTam of @TheSlants
2 12/1/2017
A NEW SLANT ON APPEALING
@SimonTheTam of @TheSlants
“TOO ASIAN”
@SimonTheTam of @TheSlants
HOW RACIST IS “THE SLANTS?” Disparagement Asian Stuff
3 12/1/2017
ASIAN AF
GOING EN BANC
@SimonTheTam of @TheSlants @SimonTheTam of @TheSlants
"Courts have been slow to appreciate the expressive power of trademarks... Words – even a single word – can be powerful…With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech.”
Judge Kimberly Moore
@SimonTheTam of @TheSlants
4 12/1/2017
FINAL BOSS STAGE
@SimonTheTam of @TheSlants
@SimonTheTam of @TheSlants
FORTUNE COOKIE WISDOM
@SimonTheTam of @TheSlants @SimonTheTam of @TheSlants
5 12/1/2017
A SUPREME SHOWDOWN
@SimonTheTam of @TheSlants
BREAKING IT DOWN
@SimonTheTam of @TheSlants
TAKING THE SHOW ON THE ROAD
@SimonTheTam of @TheSlants
6 12/1/2017
HAPPILY EVER AFTER
@SimonTheTam of @TheSlants
JUNE 19, 2017 DECISION DAY
@SimonTheTam of @TheSlants
WHO ACTUALLY WON?
@SimonTheTam of @TheSlants
7 12/1/2017
THE PROMISE
@SimonTheTam of @TheSlants
MIDLIFE CRISIS?
@SimonTheTam of @TheSlants
8 12/1/2017
THE “FLOODGATES”
@SimonTheTam of @TheSlants
“We’re now opening the door, chipping away at what’s acceptable under cultural norms…I think it could be a slippery slope, where you get more people and companies thinking, ‘This is okay.'” David Bell, Haynes & Boone, LLP
@SimonTheTam of @TheSlants
9 Applications. Out of 370,000
@SimonTheTam of @TheSlants
9 12/1/2017
1 in 3000
@SimonTheTam of @TheSlants
HOW YOU MAP YOUR WORLD
@SimonTheTam of @TheSlants
10 12/1/2017
THE END
@SimonTheTam of @TheSlants
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In The United States Patent and Trademark Office
Applicant: Simon Shiao Tam
Mark: THE SLANTS
Serial No.: 77952263
Filing Date: March 5, 2010
Commissioner of Trademarks P.O. Box 1451 Alexandria, VA 22313-1451
Attn: Mark Shiner, Examining Attorney Law Office 102
EXPERT REPORT
Charlton D. McIlwain, Ph.D. & Stephen Maynard Caliendo, Ph.D.
This report is being submitted on behalf of the Applicant, Simon Shiao Tam, in support
of his application for trademark registration as noted above. The undersigned, being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18
U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or document or any registration resulting therefrom, declare:
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I. Assignment
1. We have been asked to design and field a survey among members of the
Asian/Pacific Islander (API) community as to their opinions about whether the name
THE SLANTS, or variations thereof, is salient to members of that community as a
disparaging term.
II. Summary of Conclusions
2. Few members of the API community view THE SLANTS as a disparaging term.
III. Qualifications
3. Stephen Maynard Caliendo is a Professor of Political Science at North Central
College, and Charlton D. McIlwain is an Associate Professor of Media, Culture &
Communication at New York University. For more than a decade they have
collaboratively produced scientific research on issues related to the construction and
effects of racialized language and visual imagery in the context of political and
commercial advertisements, popular culture artifacts (such as music, television, film,
etc.) and interpersonal interaction. They are experts in survey/experiment design,
statistical data analysis, and quantitative/qualitative content analysis. They have
conducted survey/experiment research that has been accepted and sponsored by the
National Science Foundation and the Time Sharing Experiments for the Social
Sciences (TESS). Together, they have published three books related to these subjects
and ten refereed journal articles and invited book chapters in publications such as the
2
American Behavioral Scientist, the Harvard International Journal of Press/Politics,
the Journal of Black Studies and others. They also serve on the editorial boards of or
serve as peer reviewers for some fifteen of the most prominent journals within the
fields of media and communication studies, political science and cultural studies.
They frequently give public lectures about these topics to university audiences across
the country and are regularly sought out by national and international media outlets
(such as CNN, The Washington Post, Associated Press, Reuters, National Public
Radio, and many others) for their expertise in these matters. Additionally, McIlwain
has been retained as an expert witness in two legal cases, involving issues related to
the uses of racialized language and imagery, having testified in one of those cases.1
A copy of Dr. McIlwain’s curriculum vitae, detailing his educational background,
professional experience, teaching areas, and publications is attached hereto as
“Exhibit 1.” A copy of Dr. Caliendo’s curriculum vitae, detailing his educational
background, professional experience, teaching areas, and publications is attached as
“Exhibit 2.”
1 Retained as a an expert for the plaintiffs, but not testifying (due to case settlement) in Odessa Lewis,….Susie Cropper, et al., Plaintiffs, vs. Woodlawn Memorial Park, an unknown California business entity; Evergreen Memorial Care, Inc., et al., Defendants. Superior Court of California, County of Los Angeles. No. BC 227267. Retained and testified in Barkley, et al v. United Homes, et al. U.S. District Court, Eastern District of New York, 2008-2011 (deposition testimony September 23, 2009; trial testimony May 11-12, 2011). Dr. Caliendo has not testified in any cases.
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IV. Methodology
4. Design. Surveys are scientific methods for assessing public opinion about a wide
range of issues, including issues about the significance of and potential regard for
various forms of language. In accordance with acceptable methodological protocols,
we designed a survey questionnaire to assess how members of the API community in
the United States think and feel about the term THE SLANTS, specifically whether
they view the term as disparaging. Consistent with this primary goal, we designed a
set of questions that addressed the issue of potential disparagement in different ways.
Consistent with accepted scientific practice, we paid particular attention to both
question wording and question order – the latter so as not to unnecessarily prime
respondents to think about matters that might shape their responses in later questions.
Similarly, we followed appropriate guidelines in the answer/selection choices
provided for each question. The questions that were asked (and the corresponding
answer/selection choices that were provided) are set forth on “Exhibit 3.”
Participants viewed the survey one page at a time (in the order the survey pages are
presented in Exhibit 3), and thus only viewed the particular question(s) that appears
on each respective page as presented in Exhibit 3. Further, once participants answered
the question(s) on each respective page, they were prohibited from returning to prior
questions in the survey, thus ensuring no revision to their original answer choice.
5. Sampling Selection and Characteristics. This survey relied on a convenience
sample. Using a well-known and well-regarded online survey platform, invitations to
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complete the survey were sent to potential respondents via email. Invitations to participate were also distributed in the form of an Internet URL link posted on a variety of websites frequented by members of the Asian American community, such as AngryAsianMan.com and AARising.com. The link was also circulated via individuals’ personal networks on prominent social networking sites such as
Facebook and Twitter. The advantage of convenience samples is that it is less financially burdensome than fielding a random, national sample survey (the cost of which is quite prohibitive – into the tens of thousands of dollars). Additionally, it is an efficient way to reach and recruit respondents. The primary disadvantage is that convenience samples are less likely to be representative of the population being sampled. In this survey, we did everything possible to compensate for this limitation by fielding the survey for a period of time that would allow enough people from various demographics to participate and by having the survey invitation links placed on websites that are not only frequented by members of the API community, but by a broad diversity of the members of that community. The following are characteristics of the sample: There were three hundred, ninety-six participants who completed all or some of the survey. Of those, twenty-one were excluded because they self-identified as some other race/ethnicity besides Asian/Pacific Islander. Three hundred seventy- five respondent surveys remained for analysis. Of this pool: 47% were male, 37% female. While the mean age of respondents was thirty, 39% of respondents ranged from ages thirty-one to seventy-one. Fifty-two percent of the respondents had four- year or postgraduate degrees, though an almost equal percentage of respondents were
5
less educated, ranging from 2-year degrees to only eight years of schooling. Seventy-
five percent of respondents are clustered among the middle to low income brackets
($75,000 annually and below). Thus, while this convenience sample is less than ideal,
we feel confident that there is more than enough diversity among the participants to
allow us to extend our conclusions beyond this sample of API community members.
V. Results
6. Few respondents agree that THE SLANTS is disparaging. We posed the
following statement to participants: I find the name of the group THE SLANTS to be
disparaging. Only 16% of participants agreed with that statement in some way. By
contrast, 46% of participants disagreed with the statement. The remaining 38%
participants were ambivalent, saying that they neither agreed nor disagreed. Thus, if
there is any strong feeling, it is in the direction of viewing THE SLANTS as a term
that is not disparaging to members of the API community.
7. Fewer agree that THE SLANTS is disparaging when learning that the group’s
membership is entirely Asian. Once the statement is qualified in the following way
– “If I learned that the group THE SLANTS is comprised entirely of Asian
Americans, I would not think that the name is disparaging” – a majority of
respondents indicate that they have strong leanings in the positive direction by
agreeing or agreeing strongly with the preceding statement. Consistent with this
trend, after learning that the group is comprised of all Asian Americans, 8% fewer
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respondents – a statistically significant decline2 remain in the ambivalent category in
their response to this statement.
8. Age is not a factor. Given that language usage and meanings change over time, it
would be reasonable to expect that people of different age cohorts might have
different opinions about a term like SLANTS. However, these results demonstrate
that age is not a factor. Given that the mean age of the survey respondents was thirty,
we compared those thirty and under with those over thirty. Doing so showed no
statistically significant difference between the two age groups on the survey
statements referenced above. Age was not a factor in participants’ opinions about
whether they find THE SLANTS to be disparaging;3 or whether they find it less
disparaging when knowing the group consists of all APIs.4 Even when the age
comparison is adjusted to compare respondents under and above the age of forty,
there still remains no significant difference between the two groups on each of these
questions.
2 Chi-Square comparison between those ambivalent in the first question and those who remain so after learning the group is comprised of all Asian Americans yields a statistically significant p< value of .06.
3 The comparison on this question yielded a Chi-Square statistic of 3.67 and a non-significant p value of .45.
4 The comparison on this question yielded a Chi-Square statistic of 44.38 and a non-significant p value of .58.
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VI. Conclusion
9. The abundant lack of recognition of SLANTS as a potentially disparaging term; the
widespread disagreement that SLANTS is a disparaging term; the greater
disagreement demonstrated once the members of THE SLANTS are known to be
Asian American; and the lack of age distinction on these matters, taken together,
convincingly demonstrates that, partially because it is an outdated as a racially
disparaging term, THE SLANTS is not generally viewed as a disparaging term to
members of the API community. And while any term has some potential to be
disparaging depending on the intention of its user, the results here are consistent with
the anecdotal evidence that suggests that SLANTS, and variations of the term, are
recognized as a commonplace designation of positive self-reference among many in
the API community.
The undersigned declare under penalty of perjury that the foregoing is true and correct.
All statements made herein of the undersigned's own knowledge are true and all statements made on information and belief are believed to be true.
Date: Charlton D. Mcilwain, Ph.D. Associate Professor, New York University
Date: ~~ Stephen Maynard Caliendo, Ph.D. Professor, North Central College
Exhibit 1
CHARLTON MCILWAIN Associate Professor New York University Department of Media, Culture & Communication East Building 239 Greene St., 7th Fl. New York, NY 10003 Ph. 212.992.9495; Fax. 212.995.4046 [email protected]
EDUCATION
Ph.D. UNIVERSITY OF OKLAHOMA 2001 Department of Communication
M.H.R. UNIVERSITY OF OKLAHOMA 1996 Department of Human Relations Specialization: Intercultural Relations
B.A. OKLAHOMA BAPTIST UNIVERSITY 1994 Family Psychology
APPOINTMENTS
New York University 2009 - Present Associate Professor
New York University 2003 - 2009 Assistant Professor Department of Culture & Communication
New York University 2001 - 2003 Faculty Fellow/Post-doc Department of Culture & Communication
PUBLICATIONS
Books
McIlwain, Charlton D. & Caliendo, Stephen M. (2011). Race Appeal: How Candidates Invoke
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Race in U.S. Political Campaigns. Philadelphia: Temple University Press.
Caliendo, Stephen M. & McIlwain, Charlton D. (Eds, 2010). The Routledge Companion to Race & Ethnicity. London: Routledge.
McIlwain, Charlton D. (2005). When Death Goes Pop: Death, Media and the Remaking of Community. New York: Peter Lang.
McIlwain, Charlton D. (2003). Death in Black and White: Death, Ritual and Family Ecology. New Jersey: Hampton Press.
Journal Articles
McIlwain, Charlton D. (2011). Racialized Media Coverage of Minority Candidates in the 2008 Democratic Presidential Primary. American Behavioral Scientist.
McIlwain, Charlton D. & Caliendo, Stephen M. (2009). Black Messages, White Messages: The Differential Use of Racial Appeals by Black & White Candidates. Journal of Black Studies, 39, 5, 732-743.
McIlwain, Charlton D. (2007). Race, Pigskin, and Politics: A Semiotic Analysis of Racial Images in Political Advertising. Semiotica, 167-1/4: 169-192.
McIlwain, Charlton D. (2007). Perceptions of Leadership & the Challenge of Obama’s Blackness. Journal of Black Studies, 38:64-74.
McIlwain, Charlton D. (2007). Racial Identity, Ideology and the Youth Vote: Observations From the 2004 Presidential Campaign. American Behavioral Scientist, 50: 1231-1238.
Caliendo, Stephen M. and McIlwain, Charlton D. (2006). Minority Candidates, Media Framing, and Racial Cues in the 2004 Election. Harvard International Journal of Press Politics, 11: 45-69.
McIlwain, Charlton D. (2004). Time, Timing and Being On Time: The Play of Race and Ideology in the Postmodern Political Organization. TAMARA Journal for Critical Organization Inquiry, 3, 1, 14-26.
McIlwain, Charlton D. (2002). Death in Black and White: A Study of Family Differences in the Performance of Death Rituals. Qualitative Research Reports in Communication 3, 1,1-6.
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Edited Journals
McIlwain, Charlton D. (Guest Editor, 2002). Phenomenological & Hermeneutic Contributions to the Study of Global Communication & Culture. Special Edition of Intersections Journal of Global Communications & Culture, Vol. 2, 5.
Book Chapters
McIlwain, Charlton D. (2009). Leadership, Legitimacy and Public Perceptions Of Barack Obama. In Andra Gillespie (Ed.) Whose Black Politics. New York: Routledge. 155-172.
Coleman, Robin R. Means & McIlwain, Charlton D. (2005). Hidden Truths in Black Sitcoms. In Mary M. Dalton and Laura R. Linder (Eds.) The Sitcom Reader: America Viewed and Skewed. New York: SUNY Press. 125-138.
Scannell, Jack W., Scannell, Denise L. & McIlwain, Charlton D. (2004). Re-humanizing an Environmental Protection Culture: A Case Study of Integrating Multiple Perspectives in Achieving Environmental Behaviour Change in a Regulated Industry Sector. In Luigi Fusco Girard, Bruno Forte, Maria Cerreta, Pasquale De Toro and Fabiana Forte (Eds.) The Human Sustainable City: Challenges and Perspectives from the Habitat Agenda. Burlington, VT: Ashgate. 519-540.
McIlwain, Charlton D. & Johnson, Lonnie Jr. (2003). Headache and Heartbreak: Negotiating Model Minority Status Among African Americans. In E.M. Kramer (Ed.). The Emerging Monoculture: Model Minorities and Benevolent Assimilationism. Connecticut: Praeger. 110- 123.
Encyclopedia Entries
McIlwain, Charlton D. (Forthcoming, 2008). The NAACP. In Lynda Lee Kaid and Christina Holtz-Bacha (Eds.) Encyclopedia of Political Communication. Thousand Oaks, CA: Sage. 479-480.
Caliendo, Stephen M. & McIlwain, Charlton D. (Forthcoming, 2008). Minority’s Role in Politics. In Lynda Lee Kaid and Christina Holtz-Bacha (Eds.) Encyclopedia of Political Communication. Thousand Oaks, CA: Sage. 461-464.
McIlwain, Charlton D. (2007). Black Politics. In William A. Darity et al. (Eds.) International Encyclopedia of the Social Sciences, 2nd Edition. Michigan: MacMillan/Thomson Gale.
McIlwain, Charlton D. & Caliendo, Stephen M. (2005). Political Issues in Black Politics. In
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Molefi Kete Asante and Ama Mazama (eds.), Encyclopedia of Black Studies. Thousand Oaks, Ca.: Sage Publications. 139-141.
Caliendo, Stephen M. & McIlwain, Charlton D. (2005). Race and Political Advertising. In Samuel J. Best and Benjamin Radcliff (Ed.) Polling America: An Encyclopedia of Public Opinion. Westport, CT: Praeger.
Invited Book Reviews
McIlwain, Charlton D. (2008). Review of: Journalism in a Culture of Grief by Carolyn Kitch and Janice Hume (Routledge, 2007, 247 pp.). American Journalism.
McIlwain, Charlton D. (2007). Art, Science & the Exquisite Corpse: A Review of Human Remains: Episodes in Human Dissection by Helen MacDonald. Death Studies 31: 261-266.
McIlwain, Charlton D. (2003). African American Communication: Exploring Identity and Culture: Hecht, Jackson & Ribeau (2003). Book Review. Southern Journal of Communication. 174-175.
SPONSORED RESEARCH
2010 The Effects of Racial and Racist Appeals on White Voters - $21,000 TESS (Time-Sharing Experiments for Social Sciences), NSF Grant 0818839, Jeremy Freese and Penny Visser, principal investigators.
2008 The Effects of Racial & Racist Appeals on African American Voters - $21,000 TESS (Time-Sharing Experiments for Social Sciences), NSF Grant 0094964 Diana C. Mutz and Arthur Lupia, Principal Investigators.
2005 Effects of Racial Messages in Political Advertising—$1,500 New York University, Steinhardt Dean’s Discretionary Research Fund
2005 Racial Appeals in Political Advertising, 1952-Present—$27,350 New York University, Steinhardt Graduate Assistance for Faculty Grant
2005 Effects of Racial Messages in Political Advertising—$121,522 National Science Foundation, Div. of Social & Economic Sciences: Accepted (but not funded)
2004 The Project on Race in Political Communication—$5,000 New York University, Steinhardt, Goddard Fellowship
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2002 When Death Goes Pop, FY 2002-2003—$3,000 New York University Steinhardt Research Challenge Fund
CONFERENCE PAPERS
2009 McIlwain, Charlton D. & Caliendo, Stephen M. (2009). Racial Discourse in Political Advertisements: An Historical View. Presented at the annual meeting of the American Political Science Association, Toronto, CA.
2009 Caliendo, Stephen M. and McIlwain, Charlton D. (2009). Effects of Racial and Racist Appeals on Black Voters. Presented at the annual meeting of the Midwest Political Science Association, Chicago, IL.
2008 McIlwain, Charlton D. and Caliendo, Stephen M. Racial Frames and Potential Effects of Minority Candidates in the 2008 Presidential Election. Presented at the annual meeting of the Midwest Political Science Association, Chicago, Il.
2008 Caliendo, Stephen M. and McIlwain, Charlton D. Racial Priming & Campaign Ads: The Effect of Context. Paper presented at the annual meeting of the Midwestern Psychological Association, Chicago, Il.
2007 Caliendo, Stephen M. and McIlwain, Charlton D. Black to Reality: Entertainment Television as a Priming Agent for Race-Based Evaluations of Candidates. Presented at the annual meeting of the American Political Science Association, Chicago, Illinois.
2007 Caliendo, Stephen M. and McIlwain, Charlton D. Racialized Media Framing in Federal Elections, 1990-2006. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL.
2006 Caliendo, Stephen M., McIlwain, Charlton D. & Caliendo, Jillian M. The Effects of Racial Messages in Televised Campaign Advertising: A Multi-Contextual Experimental Study. Paper Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL.
2005 Caliendo, Stephen M. and McIlwain, Charlton D. Blacker Than Thou: Minority Congressional Candidates and Their Opponents in Multiple Contexts. Paper Presented at the Annual Meeting of the American Political Science Association, Washington, DC.
2005 McIlwain, Charlton D. and Caliendo, Stephen M. Who’s Really Black: A Theory of African American Authentic Appeals. Paper Presented at the Midwest Political Science Association.
2004 McIlwain, Charlton D. Cultural Dimensions of Death & Dying. Panel (organizer),
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“Bringing Back the Dead: Communication & New Frontiers in Death & Dying.” 2004 Annual Meeting of the National Communication Association. Health Communication Division.
2004 McIlwain, Charlton D. Death, Time & Technology. 2004 Annual Meeting of the International Jean Gebser Society.
2004 Caliendo, Stephen L. and McIlwain, Charlton D. Pictures & Frames: News Coverage of Black Candidates and Their Campaigns. 2004 Conference of the Midwest Political Science Association.
2003 McIlwain, Charlton D. and Caliendo, Stephen M. Recognizing Race in Political Advertising: An Experimental Study. Paper Presented at the 2003 Conference of the Midwest Political Science Association.
2002 McIlwain, Charlton D. and Caliendo, Stephen. (2002). How Do I Look?: Black Candidates on Television. Midwest Political Science Association Conference.
2001 McIlwain, Charlton D. Myth, Magic and Perspective: Describing Contemporary Death Rituals Among the African Diaspora. 2001 Annual International Jean Gebser Society Conference.
2001 McIlwain, Charlton D. Jean Gebser’s Theory of Culture and its Application to African American Death Rituals. National Communication Association. Applied Communication Division.
COURSES TAUGHT
Race & Media Political Communication Rhetoric, Law & Public Policy Introduction to Rhetorical Criticism Rhetorical Criticism Introduction to Rhetoric Core Seminar in Media, Culture & Communication Seminar in Intercultural Communication Interpersonal Communication Death & Popular Culture Death & Dying: Everyday Life & Popular Culture
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ACADEMIC SERVICE
Editorial Service
Reviewer, Sociology of Health & Illness. 2010-Present. Reviewer, Communication, Culture & Critique. 2009-Present Reviewer, Journal of Language & Social Psychology. Special Issue on “Sport, Language & Culture,” 2009. Reviewer, Western Journal of Black Studies. 2009-Present Editorial Board, Communication Quarterly. 2008-Present. Reviewer, Journal of Politics. 2008-Present Reviewer, Western Journal of Communication. 2008-Present Reviewer, Political Research Quarterly. 2007-Present Reviewer, Critical Studies in Media Communication. 2007-Present. Reviewer, Mortality. Special Issue: The Corpse in Contemporary Culture, Edited by Jacque Lynn Fltyn. 2008. Reviewer, 2008 Annual Meeting of the International Communication Association (Divisions: Philosophy of Communication, Political Communication, Ethnicity & Race, Journalism Studies, Mass Communication, Popular Communication, & Visual Communication Studies). Manuscript Reviewer, 2006, Manuscript proposal for Layers of Intercultural Communication. Prentice Hall Publishing. Reviewer, 2006, Annual Meeting of the National Communication Association, Political Communication Division. Reviewer, 2006, Annual Meeting of the International Communication Association, Political Communication Division. Reviewer, 2005, Annual Meeting of the National Communication Association, Political Communication Division. Reviewer, 2005, Annual Meeting of the National Communication Association, Mass Communication Division. Editorial Board, 2005-Present, Hampton Press Book Series: Communication, Cultures & Civilizations. Reviewer, 2005-Present, Kyushu Communication Studies, Journal of the Communication Association of Japan. Reviewer, NCA Student Division, 2001
Doctoral Dissertation Committees/Advisement
Committee Member, Rachelle Sussman, Department of Media, Culture & Communication. (Completed).
Committee Member, Cheryl A. Casey, Department of Culture & Communication. Dissertation Topic: Possibility for Self-Negation in Online Rituals. Defended, May, 2007.
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Outside Reader, Nyasha Grayman, Program in Counseling Psychology; Value for Prosociality, Prosocial Engagement, and Well-Being Among African Americans: An Exploratory Study. Defended March, 2006.
Outside Reader, Marcia T. Caton, Program in Higher Education Administration; Reconnecting to the Educational Pipeline: Black Males’ Perspectives. Defended March, 2005.
Outside Reader, Proposal Review, Michael Zimmer, Department of Culture & Communication; Values in Spheres of Mobility: How the Design of Networked Vehicle Information Systems and web Search Engines Bear on Privacy, Autonomy & Liberty. April, 2006.
M.A. Thesis Committees
Outside Reader, Luke Brookner. Completed, August 2009 Advisor, Andrew Leroy. Completed, May 2009 Advisor, Edward Chia. Completed, May 2009. Advisor, Gwenn Florence Morreale. Completed, May 2009. Advisor, Krista Hansen. Completed, May 2008. Advisor, Jamie Cunningham, Completed, May 2008. Advisor, Cortney Heimerl. Completed, December 2007.
Gallatin Advisees
Advisor, Leigh Cohen, Graduated Spring, 2005 Advisor, Noah Brier, Graduated Spring, 2004.
University, School & Department
Member, Department M.A. Committee, 2006-2008. Faculty Representative. 2006-2009. Steinhardt Baccalaureate Ceremony. Member, Department Search Committee, 2005-2006. Member, Department M.A. Committee, 2004-2006. Panelist, The Color of Disaster: Race, Class & Hurricane Katrina. Symposium Hosted by NYU office of the Dean (Arts & Sciences, Tisch, & Steinhardt) et al. October 14-15, 2005. Panelist, University Scholars Panel, Media & the 2004 Elections, October 2004. Guest Speaker, Martin Luther King Scholars Meeting, October, 2004. Presenter, Department of Culture & Communication Doctoral Colloquium, Fall 2003. The Project on Race in Political Advertising.
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Member, Department of Culture & Communication Ph.D. Committee, 2003-04. Member, Department of Culture & Communication M.A. Committee, 2003-04. Panelist, “Conversations of Color” meeting hosted by the School of Education Office of the Associate Dean, November, 2002. Conference Host, The 2003 Annual Meeting of the Jean Gebser Society: “Re[Valuing] Values and Value in an Integral Age.”, New York University. Panelist, Lambda Pi Eta Panel, Crisis and the Global Response, September, 2002. Guest Lecturer, Lambda Pi Et Honor Society, New York University, Department of Culture and Communication, 2002. Judge, All University Undergraduate Chester A. Lane and Charles Sandham Public Speaking Contest, Fall, 2001; 2002.; 2003 University of Oklahoma, Department of Communication Political Communication Search Committee, 2000
Other Professional Activities
Expert Witness, 2008-2011. Barkley, et al v. United Homes, et al. Retained to examine racial targeting in ads by alleged predatory lender.
Expert Witness, 2005-2006. Odessa Lewis,….Susie Cropper, et al., Plaintiffs, vs. Woodlawn Memorial Park, an unknown California business entity; Evergreen Memorial Care, Inc., et al., Defendants. Superior Court of California, County of Los Angeles. No. BC 227267. Expert for the plaintiffs, reporting on, and testifying on expertise related to African American Death Culture.
External Reviewer, 2005. At the invitation of the Dean of Arts & Humanities, and Chair of the Department of Communication, Shepherd College (West Virginia). Performed external review of the department’s curriculum, mission, faculty scholarship, and performance in the field of human and mass communication.
INVITED PRESENTATIONS
Hofstra University, Keynote Speaker. Black History Month. February, 2011.
NYU Multinational Institute of American Studies. Panelist, “Ethnicity, Race, Gender and American Politics.” July 14, 2010.
University of Pennsylvania. Keynote Speaker, Fontaine Society Lecture. “Race Appeal: The Persistent Allure of Racial Messages in Political Campaigns.” March 1, 2010.
Brooklyn Museum of Art, Panelist, Obama, One Year After. January 30, 2009.
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NYU Multinational Institute of American Studies. Panelist, “Ethnicity, Race, Gender and American Politics.” July 7, 2009.
Lewis & Clark State College (Lewiston, ID). A New Conversation About Race. April, 2009.
NYU Commission on Race, Gender & Social Justice. Race & Gender, the Aftermath of the 2008 Election. November, 2008.
NYU Steinhardt, 2008 Alumni Speakers’ Series. The 2008 Election. November, 2008.
Brooklyn Museum of Art, The American Hero and the American Dream: Reflections on Our Contemporary Political Narratives. September, 2008.
Packer Collegiate Institute, Reflections of Race in Media During Campaign 2008, September, 2008.
Pennsylvania State University-Berks, Berks, PA. Who Can Use the N-Word?April, 2008.
Adler Institute on Social Exclusion (Chicago, IL)., November, 2007. Who Can Use the N- Word?
N.Y.U. Commission on Race, Gender & Social Justice. November, 2007. Race & Gender in the 2008 Presidential Election.
North Central College. Race, Media & Politics. February, 2006.
Clarion University. Race & the 2004 Elections. November, 2004.
University of Pittsburgh, Pittsburg, PA. Race & the 2004 Elections. October, 2004.
Pennsylvania State University-Berks, Berks, PA. Race & the 2004 Elections. October, 2004.
University of Texas-Austin, Austin, TX. Race & the 2004 Elections. October, 2004.
Sooner Communication Conference, University of Oklahoma, Norman, OK. The Underside of Health: Death and Communication Research. February, 2003
University of Texas-Austin, Senior Fellows Program in the College of Communication. Racial Issues in Political Campaigns. October, 2003
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Avila University, Kansas City, MO. The Project on Race in Political Advertising. November, 2002.
MEDIA INTERVIEWS
TV Guide Channel, August 15, 2010. History of Sex on Television (relationship to race).
Newsday, Op-Ed, February 24, 2010. Childhood Obesity Initiative is Really About Race.
Time Out New York, Jan. 28-Feb. 23, 2010. One Year After: A Report Card on Obama’s First Year.
CNN (Rick Sanchez), High School Skit Draws Fire, October 30, 2009.
Associated Press, September 16, 2009. Wise Latina Wins Pop Culture Support.
Newsday, Op-Ed, July 16, 2009. The Steady, Subversive Redefinition of “Racism.”
Newsday, Biden comes to NYC to address Sharpton's group, April 2, 2009.
A&E Biography Channel, Diff'rent Strokes, April 1, 2009.
CNN (The Situation Room), A Seat Warmer to Fill Hillary Clinton's U.S. Senate Seat? January 1, 2009.
La Nacion (Argentina), El Custodio de la Marca Obama, November 11, 2008.
Reuters Television, Are We Living in a Post Racial Era, November 5, 2008.
Le Monde, Pour les Africains-Américains, l'impensable s'est produit, November 5, 2008.
CTV, Canada, Barack Obama's 30-minute Ad, November 1, 2008.
NYU Magazine. Race-ing for Office: Are We Closer to Judging a Candidate by the Content of His, or Her, Character? Written by Courtney Martin. Fall, 2008.
CNN, Race in the Presidential Race. With Jason Carroll. October 10, 2008.
National Public Radio (News & Notes), Inside the Art of Political Speech Writing (Reflections on Obama Acceptance Speech). Roundtable with Susan Estrich & Chriss Winston, September 4, 2008.
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CNN, Hillary v. Michelle Obama. August 29, 2008. With Deborah Feyerick.
National Public Radio (News & Notes), Inside the Art of Political Speech Writing (Reflections on Obama Acceptance Speech). Roundtable with Susan Estrich & Chriss Winston, August 28, 2008.
St. Louis Post-Dispatch, Video Commentary, August 27, 2008. What Will Obama Say About Race Tonight?. Bill Lambrecht.
New York Post, Video Commentary, July 22, 2008. Satire Gone Too Far? With David Desario.
CNN, July 11, 2008. Comment on Obama Supprters’ Criticisms Of His Move to the Center. With Deborah Feyerick.
NTV New York, (Japanese Televsion News) April 6, 2008 キング牧師を彷彿？オバマ氏の武器は演説力 [On Obama’s speaking style].
Rise Up Magazine [appearing in the New York Daily News, Houston Chronicle, Chicago Tribune, Washington Post & Cincinatti Enquirer]. May 22, 2008. On the political ramifications of the word “articulate” to describe Black candidates.
Baltimore Examiner, April 28, 2008. “Youth Vote Here to Stay.”
La República (Perú), March 21, 2008. “La arriesgada apuesta de Obama.”
Sveriges Radio [Swedish Public Radio], March 6, 2008. Clinton och Obama i ny viktig duell.
EFN News Service (Counterpart to Associated Press in Latin America), March 18, 2008. Opinions on Obama’s “Race” Speech. Quotes appearing in: MSN News (Latino), diariovasco.com, & Diario de Yucatan.
Op-Ed, Newsday, February 25, 2008. “Clinton Veering Close to Stereotypes.”
Corpus Christi Times-Caller, February 24, 2008. “Rallies Could Make the Difference in a Close Race.”
O Globo (Brazil), February 10, 2008. “Benevolente com Obama, crítica com Hillary”
WABC News, December 8, 2007. The impact of Oprah Winfrey’s endorsement of Barack Obama.
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WNBC News, September 17, 2007. Interview about racial division in perceptions of O. J. Simpson. Michael Gargiulo.
Sveriges Radio [Swedish Public Radio], July 28, 2007. Fler unga i USA bryr sig om framtiden. (Interview on Obama/Clinton).
Santa Fe New Mexican, May 5, 2007. 2008 Presidential Election: Richardson race to gain Hispanic recognition. Barbara Ferry.
The Gulf Times (Qatar). April 28, 2007. “Democrats Show Courteous Side.”
Agence France Presse (France). April 27, 2007. “U.S. Democrats Show Courteous Side.”
The Ave. Magazine, March 6, 2007. Interview on Obama & Hillary Clinton/2008 Presidential Election, for April, 2007 Issue.
New York Journal News, March 5, 2007. Debating the N-Word. Suzan Clarke.
Toronto National Post, March 2, 2007. New York City Council Bans the N-Word. Mary Vallis.
WNBC News, February 24, 2007. Border’s Bookstore Segregation of African American Authors. Monica Morales.
St. Louis Post-Dispatch, February 9, 2007. Obama: Full of hope on a Tough Road. Bill Lambrecht.
Columbia Journalism Review, January 22, 2007. Forget America, Is Journalism ready for a Black President? Tony Dokoupil.
The Utica Observer-Dispatch, June 18, 2006. Cheaper Costs Fuels Rise in Cremations. Tory Parrish.
The Queens Tribune, June 15, 2006. Pols Wary of Race in Local Contests. Andrew Moesel.
Folha de Sao Paulo, May 14, 2006. TV Paga: Nas Series, poder dos EUA entra em crise. Tete Ribeiro.
Expert Interview, Arte (French Television) Documentary on Television Programs Set in New York City. 2006.
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The New York Times, February 22, 2005. Section E Column 1. New York is Noir Again: In Dark Times, TV Sings of the Dark City. Patrick Healy.
São Paulo, domingo 10 de abril de 2005. Nos EUA, tema tabu ganha espaço no cinema e na TV, como no seriado "House", que estréia quinta no Brasil A morte pede passagem.
The Philadelphia Inquirer Sun, Oct. 23, 2005. Red Tide of Violence Rises in Pop Culture. David Hiltbrand.
April, 2003 – Interview on Media, War & Reality Television. Issues Etc. Radio Program, KFUO Radio, St. Louis, MO.
MEMBERSHIPS
National Communication Association, 1996-Present American Political Science Association, 2006-Present Midwest Political Science Association, 2002-Present International Communication Association, 2007-Present
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Exhibit 2
Stephen Maynard Caliendo, Ph.D.
North Central College Department of Political Science April 6, 2011 30 N. Brainard Street Naperville, IL 60540-4690 Phone: (630) 637-5344 E-mail: [email protected]
PROFESSIONAL EMPLOYMENT
Fall 2005- Professor of Political Science, North Central College, Naperville, present Illinois
Summers Faculty Member, Junior State of America 2000-2010 Junior State of America is a non-partisan organization run by high school students and backed by a not-for-profit foundation that seeks to promote participatory democracy (www.jsa.org). I have worked for the foundation since 2000 in various capacities.
2000-2010 Instructor, JSA Summer School, Princeton University, Princeton, NJ Taught the American Presidency (2000), American Government (2001 and 2002), Political Communication (2003, 2005-2007, 2009-10), and Campaigns and Elections (2004, 2008) to advanced high school students for one month. Evaluated students' performances in “congressional workshops” (2000-2009) and delivered commencement addresses (2000, 2002, 2004).
2005-2010 Instructor, JSA Preparation Program Provided preparatory instructon for one week to students in the Republic of Palau (2005; 2007-2009) and Guam (2006) who were to attend JSA Summer Schools at Georgetown, Northwestern, Princeton, Stanford or Yale. In summer of 2010, I worked with the students at Princeton for a week prior to the start of summer school.
2004; 2008 Instructor, JSA National Symposium at the Democratic National Convention Provided academic instruction and helped to coordinate student activities at the conventions. In 2008, I coordinated and directed the Student Correspondents Program.
Fall 2001- Associate Professor of Political Science, Avila University, Kansas City, Missouri Summer 2005
Fall 1998- Visiting Assistant Professor of Political Science, University of Missouri— Summer 2001 St. Louis, St. Louis, Missouri
1997-2000; Faculty Consultant (Reader), Advanced Placement U.S. Government and Politics, 2004-2005 Educational Testing Service, Princeton, New Jersey Graded Advanced Placement essay exams during a one-week session each June.
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EDUCATION
May 1998 Ph.D., Political Science, Purdue University Fields: American Politics, Political Behavior, Quantitative Research Methods, Curriculum Theory (School of Education)
May 1995 M.A., Political Science, Purdue University
May 1993 B.A., magna cum laude, English and Political Science, Clarion University of Pennsylvania
AWARDS of RECOGNITION
2010 Emerging Voice Award, Purdue University College of Liberal Arts Alumni Association Three alumni under the age of 40 are honored each year. More information is available at http://www.cla.purdue.edu/alumni/awards/emergingvoice/
2010 G. T. Reilley Outstanding Coach Award, Loras College National Invitational College Mock Trial Tournament (Gold Division) Selected by students, faculty and attorney coaches for service and teaching intercollegiate mock trial
2009 Student Governing Association Distinguished Service Award, North Central College Students select one faculty or staff member from the College annually
2007 Clarence F. Dissinger Award for Distinguished Teaching and Leadership by a Senior Faculty Member, North Central College Students and faculty nominate and an administrative committee selects one senior faculty member from the College annually
2002 [Missouri] Governor’s Award for Teaching Excellence One faculty member per institution is honored each year
2002 Professor of the Year, Avila College (now Avila University) Students nominate and vote for one faculty member from the College annually
PUBLICATIONS
forthcoming Caliendo, Stephen M. Inequality in America: Race, Poverty, and Fulfilling Democracy’s Promise. Boulder, CO: Westview. (“Dilemmas in American Politics” Series)
2011 McIlwain, Charlton D. and Stephen M. Caliendo. Race Appeal: How
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Candidates Invoke Race in U.S. Political Campaigns. Philadelphia: Temple University Press.
2010 Caliendo, Stephen M. and Charlton D. McIlwain, eds. Routledge Companion to Race and Ethnicity. London: Routledge. Includes one authored chapter and two co-authored chapters, as well as a co-authored short essay.
2009 Caliendo, Stephen M. “Media.” In David P. Forsythe, ed., Encyclopedia of Human Rights. New York: Oxford University Press.
2009 McIlwain, Charlton D. and Stephen M. Caliendo. “Permissible Discrimination: The View from Congress.” In Tamara L. Roleff, ed., Issues that Concern You: English Language Learners. Chesterfield, MI: Greenhaven Press.
2009 McIlwain, Charlton D. and Stephen M. Caliendo. “Black Messages, White Messages: The Differential Use of Racial Appeals by Black and White Candidates” Journal of Black Studies 39: 732-743.
2007 Caliendo, Stephen M. “Supreme Court and the Media.” In Lynda Lee Kaid and Christina Holz-Bacha, eds., Encyclopedia of Political Communication. Thousand Oaks, CA: Sage.
2007 McIlwain, Charlton D. and Stephen M. Caliendo. “Minorities' Involvement in Politics.” In Lynda Lee Kaid and Christina Holtz-Bacha, eds., Encyclopedia of Political Communication. Thousand Oaks, CA: Sage.
2006 Caliendo, Stephen M. and Charlton D. McIlwain. “Minority Candidates, Media Framing, and Racial Cues in the 2004 Elections.” The Harvard International Journal of Press/Politics 11(4): 1-25.
2005 Caliendo, Stephen M. “Socialization.” In Samuel Best and Benjamin Radcliff, eds., Polling America: An Encyclopedia of Public Opinion. Westport, CT: Greenwood.
2005 Caliendo, Stephen M. and Charlton D. McIlwain. “Racial Appeals in Political Campaigns.” In Samuel Best and Benjamin Radcliff, eds., Polling America: An Encyclopedia of Public Opinion. Westport, CT: Greenwood.
2004 McIlwain, Charlton and Stephen M. Caliendo. “Black Politics.” In Molefi Kete Asante and Ama Mazama, eds., Encyclopedia of Black Studies. Thousand Oaks, CA: Sage, 139-141.
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2000 Caliendo, Stephen M. Teachers Matter: The Trouble with Leaving Political Education to the Coaches. Westport, CT: Praeger.
1999 Caliendo, Stephen M., Mark P. Gibney and Angela Payne. “‘All the News That’s Fit to Print?’ New York Times Coverage of Human Rights Violations.” The Harvard International Journal of Press/ Politics 4(4): 48-69.
1997 Kyle, William C., Jr. and Stephen M. Caliendo. “Valuing Scholarship’s Essential Paradigmatic Differences and Inherent Contradictions: A Rejoinder to Wallace and Louden.” Journal of Research in Science Teaching 34:323-325. (non-refereed)
1996 Caliendo, Stephen M. and William C. Kyle, Jr. “Establishing the Theoretical Frame.” Journal of Research in Science Teaching 33: 225- 227 (editorial – non-refereed)
GRANTS
External
January 2010 The Effects of Racial and Racist Appeals on White Voters (with Charlton D. McIlwain, New York University) Approximately $21,000 from Time-Sharing Experiments for the Social Sciences (TESS), PID 787, funded by National Science Foundation (NSF) Grants 0819271 and 0818839, Jeremy Freese and Penny Visser, principal investigators.
May 2008 The Effects of Racial and Racist Appeals on African American Voters (with Charlton D. McIlwain, New York University) Approximately $21,000 from Time-Sharing Experiments for the Social Sciences (TESS), PID 660, funded by National Science Foundation (NSF) Grant 0094964, Diana C. Mutz and Arthur Lupia, principal investigators
Institutional
Summer 2011 Faculty Professional Development Summer Grant, North Central College $6,188 toward completion of Inequality in America: Race, Poverty and Fulfilling America’s Promise (funds include stipends for three research assistants and one reprint permission)
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Summer 2011 Faculty Professional Development Summer Grant, North Central College $750 for development of IDS 125: Communication and the American Presidency (with Amy Buxbaum, North Central College)
Fall 2010 Faculty Professional Development Professional Term Grant, North Central College $500 for supplies and materials related to completion of Inequality in America: Race, Poverty and Fulfilling America’s Promise manuscript
Summer 2010 Faculty Professional Development Summer Grant, North Central College $6,250 for study entitled “Biographical and Electoral Data for U.S. Senate Candidates: A User-Friendly Database” (funds include stipends for two research assistants)
Summer 2009 Faculty Professional Development Summer Grant, North Central College $6,292 for study entitled “Minority Candidates for Congress: A Database” (funds include stipends for two research assistants)
Summer 2008 Faculty Professional Development Summer Grant, North Central College $3,200 for work toward completion of The Routledge Companion to Race and Ethnicity
Summer 2007 Faculty Professional Development Summer Grant, North Central College $2,000 for study entitled “Apolitical Communication: Language, Legitimacy and the U.S. Supreme Court” (work toward completion of book manuscript)
Summer 2007 Faculty Professional Development Summer Grant, North Central College $500 for development of IDS 125: Communication and the American Presidency (with Amy Grim, North Central College)
Summer 2006 Faculty Professional Development Summer Grant, North Central College $3,500 for study entitled “Effect of Racial Messages in Campaign Advertising”
Spring 2005 Faculty Grant, Avila University $1,000 for presentation of original research at the Midwest Political Science Association National Conference
Fall 2003 Faculty Grant, Avila University Course release for fall 2004 to work on elements of The Project on Race in Political Advertising
Fall 2003 Faculty Small Grant, Avila University $500 for participation at the American Political Science Association National Conference
Spring 2003 Faculty Large Grant, Avila University $900 for presentation of original research at the Midwest Political Science Association National Conference
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Fall 2002 Faculty Small Grant, Avila University $300 for attendance, chair and panel discussant roles at the American Political Science Association National Conference (and pre-conference workshop on Elections and Voting)
Spring 2002 Faculty Small Grant, Avila University $300 for presentation of original research at the Midwest Political Science Association National Conference
RESEARCH
2001-present The Project on Race in Political Communication (co-principal investigator, Charlton McIlwain, New York University). This project is designed to measure the level (and effect) of racial messages in political communication. Products include, have included or will include: a weekly blog, book manuscripts, journal articles, maintenance of substantively relevant social networking sites (i.e., Facebook, Twitter), and a comprehensive database that will be maintained and shared with other scholars. More information can be found at RaceProject.org.
CONFERENCE PRESENTATIONS
April 2011 “Psychophysiological Approaches to Studying the Effects of Race-Based Messages in Political Campaigns” (with Charlton D. McIlwain). Presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
April 2010 “Tracking Trends in Minority Representation: Early Findings from the Congressional Candidate Dataset Project” (with Sidra Hamidi and Charlton D. McIlwain). Presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
April 2010 “(Far) Beyond the Classroom: A Pedagogy for Race and Communication.” Presented at a spotlight session of the annual meeting of the Central States Communication Association, Cincinnati, Ohio. (invited)
March 2010 “New Media: Unexpected Pathways to Empowerment” (with Charlton D. McIlwain). Presented at the Transforming Race conference sponsored by the Kirwan Institute for the Study of Race and Ethnicity (The Ohio State University), Columbus, Ohio.
September 2009 “Racial Discourse in Political Advertisements: An Historical View.” Paper presented at the annual meeting of the American Political Science Association, Toronto, Ontario, Canada.
April 2009 “Effects of Racial and Racist Appeals on Black Voters” (with Charlton D.
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McIlwain). Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
May 2008 “Racial Priming and Campaign Ads: The Effect of Context” (with Charlton D. McIlwain). Paper presented at the annual meeting of the Midwestern Psychological Association, Chicago, Illinois.
April 2008 “Racial Frames and Potential Effects on Minority Candidates in the 2008 Presidential Election” (with Charlton D. McIlwain). Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
April 2008 “Winners & Losers: Factors Contributing to Minority Candidates’ Successes and Failures in American Elections, 1990-2006” (with Charlton D. McIlwain and Elizabeth Konrad). Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
September 2007 “Black to Reality: Entertainment Television as a Priming Agent for Race- Based Evaluations of Candidates” (with Charlton D. McIlwain). Paper presented at the annual meeting of the American Political Science Association, Chicago, Illinois.
April 2007 “Racialized Media Framing in Elections, 1990-2006” (with Charlton D. McIlwain). Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
November 2006 Participated in roundtable discussion entitled “Creating Sites for Women’s Studies Connection and Action: Bonnie J. Dow’s Influence on Feminist and Women’s Studies Scholars and Scholarship” at the National Communication Association annual convention, San Antonio, Texas.
September 2006 “American Print Media Coverage of Human Rights Violations” (with Mark P. Gibney). Paper presented at the annual meeting of the American Political Science Association, Philadelphia, Pennsylvania.
April 2006 “The Effects of Racial Messages in Televised Campaign Advertising: A Multi-Contextual Experimental Study” (with Charlton D. McIlwain and Jillian Maynard Caliendo). Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
November 2005 “Power Politics on Reality TV: Popular Culture as a Pedagogical Catalyst.” Paper presented at the Illinois Political Science Association conference, Elmhurst College, Elmhurst, Illinois.
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September 2005 “Shades of Brown and Black: Minority Congressional Candidates and Their Opponents in Multiple Contexts” (with Charlton D. McIlwain). Paper presented at the annual meeting of the American Political Science Association, Washington, DC.
April 2005 “Who’s Really Black: A Theory of African American Authentic Appeals” (with Charlton D. McIlwain). Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
April 2004 “Frames of Authenticity: News Coverage of Black Candidates and Their Campaigns” (with Charlton D. McIlwain). Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
April 2003 “Reading Race: The Effect of Racial Tone in Political Advertising on Perception of Candidates” (with Charlton D. McIlwain). Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
April 2003 “Popular Culture Meets The U.S. Supreme Court: The Effects Of Cbs’s First Monday On Viewers’ Attitudes About The Court” (With Thomas R. Marshall). Paper Presented At The Annual Meeting Of The Midwest Political Science Association, Chicago, Illinois.
April 2002 “How Do I Look?’: An Analysis of Television Advertisements for Black Candidates and Their Opponents, 1952-2000 (pilot study, 1992-2000)” (with Charlton D. McIlwain). Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
April 2001 “The Great Legitimacy Gamble: Media Coverage and Potential Effects of the U.S. Supreme Court's Involvement in the 2000 Presidential Election.” Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois. (The originally proposed paper was entitled: “The Rhetoric of Confirmations: How Senators and Interest Group Representatives Frame Supreme Court Nominations.”)
November 2000 “For Public Consumption: Elite Rhetorical Framing of Salient Supreme Court Decisions.” Paper presented at the annual meeting of the Southern Political Science Association, Atlanta, Georgia.
April 2000 “’Excuse Me Mr. President. . .’: Media Coverage of Presidential Rhetoric During U.S. Supreme Court Nominations.” Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
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September 1999 “The Politics of Supreme Court Nominations: An Analysis of Presidential Rhetoric from Truman to Clinton” (with Stephen K. Medvic). Paper presented at the annual meeting of the American Political Science Association, Atlanta, Georgia.
April 1999 “Seeing is Believing: Broadcast Media Coverage of Human Rights Abuses (with Mark P. Gibney and Angela Payne). Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
May 1998 “Teaching Our Children Well? The Effect of Political Education on Support for the United States Supreme Court.” Paper presented at the annual meeting of the American Association for Public Opinion Research, St. Louis, Missouri.
November 1997 “Perpetuating Legitimacy: Formal Political Education and the U.S. Supreme Court.” Paper presented at the annual meeting of the Southern Political Science Association, Norfolk, Virginia.
August 1997 “’All the News that’s Fit to Print?’ New York Times Coverage of Human Rights Violations” (with Mark P. Gibney). Paper presented at the annual meeting of the American Political Science Association, Washington, D.C.
April 1997 “American Schools and the U.S. Supreme Court: The Role of Government Textbooks.” Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
April 1996 “Tracking Public Opinion toward the United States Supreme Court: A Longitudinal Model.” Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois.
SELECTED PROFESSIONAL ACTIVITIES
October 2011 Will present “Beyond Border Crossings: Racializing Latino/a Candidates in U.S. Elections” (with Charton D. McIlwain) at Vanderbilt University
March 2011 Delivered keynote address at Black Hills State University Research Symposium
February 2011 Debated “Who Can Use the N-word” (with Charlton D. McIlwain) at Hofstra University
February 2011 Delivered keynote address and participate in workshops at the annual Rethinking Race conference at the University of Akron
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November 2010 Debated “Who Can Use the N-word” and discuss findings from The Project on Race in Political Communication at Penn State University—Berks
November 2010 Debated “Who Can Use the N-word” and discuss findings from The Project on Race in Political Communication at Rice University
April 2010 Served as discussant for panel entitled “Race and the 2008 Election” at the annual meeting of the Midwest Political Science Association, Chicago, Illinois
March 2010 Reviewed manuscript for the American Journal of Political Science
November 2009 Presented “Talking about Race in the Obama Era” at Nassau Community College, New York, New York (with Charlton D. McIlwain)
November 2009 Served as discussant for panel entitled “Gender, Sexuality and Diversity: From Politics to Bureaucracy” at the annual meeting of the Illinois Political Science Association, Chicago, Illinois
October 2009 Served as manuscript referee for the Atlantic Journal of Communication
October 2009 Presented “Peeking Over Your Shoulder: The Importance of Psychology to The Project on Race in Political Communication” at the University of Illinois at Urbana-Champaign Department of Psychology’s Clinical/Community Psychology brownbag series
July 2009 Served as manuscript referee for the Western Journal of Black Studies
July 2009 Presented “Racial and Racist Communication in the 2008 Presidential Election (and Since),” Junior State of America summer school, Princeton University, Princeton, New Jersey
November 2008 Chaired panel entitled “Voting and Elections in American Politics: Participation, Processes and Issues” at annual meeting of the Illinois Political Science Association, Charleston, Illinois
November 2008 Delivered keynote address, National Honor Society induction ceremony. Naperville North High School, Naperville, Illinois
October 2008 Presented “Fairytales, Radicals and Crooks: The Role of Race in the 2008 Presidential Election” at Penn State University-Berks, Reading, Pennsylvania
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October 2008 Presented “Fairytales, Radicals and Crooks: The Role of Race in the 2008 Presidential Election” at Clarion University of Pennsylvania, Clarion, Pennsylvania
September 2008 Served as manuscript referee for Perspectives on Politics
August 2008 Presented “Race in the 2008 Presidential Election” (with Charlton D. McIlwain) at the Junior State of America Democratic National Convention Symposium, Denver, Colorado
April 2008 Debated “Who Can Use the N-Word” with Charlton D. McIlwain at Penn State University-Berks, Reading, Pennsylvania
November 2007 Debated “Who Can Use the N-Word” with Charlton D. McIlwain at the Adler School of Professional Psychology
October 2007 Debated “Who Can Use the N-Word” with Charlton D. McIlwain at North Central College
July 2007 Served as a manuscript referee for American Politics Research
April 2007 Discussed papers on panel entitled “Opinion Leadership” at the annual meeting of the Midwest Political Science Association, Chicago, Illinois
November 2006 Presented “Race in the 2006 Elections” (with Charlton D. McIlwain) at Penn State University-Berks, Reading, Pennsylvania
October 2006 Presented “Race in the 2006 Elections” (with Charlton D. McIlwain) at North Central College
September 2006 Chaired panel entitled “(Re)Considering the Effects of Media Cues and Media Priming” for the Political Communication organized section at the annual meeting of the American Political Science Association, Philadelphia, Pennsylvania
April 2006 Chaired panel entitled “Racialized Media” for the Political Communication organized section at the annual meeting of the Midwest Political Science Association, Chicago, Illinois
December 2005 Served as an external reviewer for a faculty member’s tenure file, Barton College (Wilson, NC)
July 2005 Served as a manuscript referee for the American Journal of Political Science
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April 2005 Chaired panel entitled “Successful Campaigning: The Practice of Campaign Politics” for the Practice of Politics organized section at the annual meeting of the Midwest Political Science Association, Chicago, Illinois
November 2004 Presented findings from The Project on Race in Political Communication (with Charlton D. McIlwain) at Clarion University of Pennsylvania, Clarion, Pennsylvania
October 2004 Presented findings from The Project on Race in Political Communication (with Charlton D. McIlwain) at the University of Pittsburgh, Pittsburgh, Pennsylvania
October 2004 Presented findings from The Project on Race in Political Communication (with Charlton D. McIlwain) at Penn State University-Berks, Reading, Pennsylvania
September 2004 Served as a manuscript referee for the Journal of Politics
August 2004 Served as a manuscript referee for the American Journal of Political Science
August 2004 Chaired a panel entitled “Political Ads and Campaign Strategies” for the Political Communication and Elections and Voting Behavior organized sections at the annual meeting of the American Political Science Association, Chicago, Illinois
April 2004 Accepted to discuss papers on a panel entitled “Analyzing Media Effects: Priming and Framing” at the annual meeting of the Midwest Political Science Association, Chicago, Illinois (unable to fulfill role due to a program scheduling conflict)
November 2003 Presented findings from The Project on Race in Political Advertising (with Charlton D. McIlwain) at a town hall meeting featuring City Councilman Alvin Brooks (Kansas City, Missouri) and Missouri State Representative Sharon Sanders Brooks, Avila University, Kansas City, Missouri
October 2003 Presented findings from The Project on Race in Political Advertising (with Charlton D. McIlwain) at the University of Texas (School of Journalism), Austin, Texas
August 2003 Chaired a panel entitled “Polling as News” at the annual meeting of the American Political Science Association, Philadelphia, Pennsylvania
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August 2003 Chaired a panel entitled “Information Flows and Learning in Elections” at the annual meeting of the American Political Science Association, Philadelphia, Pennsylvania
Fall 2003 Served as a reviewer for an American Government textbook from NorthWest Publishing
Summer 2003 Served as a reviewer for an American Government textbook from Longman Publishers
March 2003 Served as a panel discussant at the Midwest Political Science Student Convention, Park University, Parkville, Missouri
February 2003 Served as a manuscript referee for the Journal of Politics
February 2003 Served on a panel of educators to advise The Nation Classroom, a program designed to bring political information into high school and college classrooms using The Nation weekly magazine
September 2002 Chaired and discussed papers on a panel entitled “The Color of a Thousand Words: Racializing News, Entertainment and Politics” at the annual meeting of the American Political Science Association, Boston, Massachusetts
April 2002 Chaired a panel entitled “Priming, Framing, and Information Processing” at the annual meeting of the Midwest Political Science Association, Chicago, Illinois
April 2002 Served as a manuscript referee for the American Journal of Political Science
April 2001 Chaired and discussed papers on a panel entitled “Media Bias” at the annual meeting of the Midwest Political Science Association, Chicago, Illinois
September 2000 Discussed papers on a panel entitled “Framing the Election” at the annual meeting of the American Political Science Association, Washington, D.C.
April 2000 Chaired a panel entitled “Public Opinion about the Military and Foreign Affairs” at the annual meeting of the Midwest Political Science Association, Chicago, Illinois
September 1999 Discussed papers on a panel entitled “Studies of Political Attitudes” at the annual meeting of the American Political Science Association, Atlanta, Georgia
August 1999 Served as a manuscript referee for American Politics Quarterly
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October 1998 Discussed papers on a panel entitled “Attitudes, Issues and Strategy in Supreme Court Decision-Making” at the annual meeting of the Southern Political Science Association, Atlanta, Georgia
April 1998 Chaired and discussed papers on a panel entitled “Public Opinion and Views about Government” at the annual meeting of the Midwest Political Science Association, Chicago, Illinois
December 1997 Served as a manuscript referee for The Harvard International Journal of Press/Politics
April 1997 Chaired a panel entitled “Foreign Policy and Public Opinion” at the annual meeting of the Midwest Political Science Association, Chicago, Illinois
January 1997 Served as a manuscript referee for Political Research Quarterly
December 1996; Served as a manuscript referee for the American Journal of Political Science August 1996 (twice)
SELECTED SERVICE
June 2011 Will begin 3-year term as Head of Division of Human Thought and Behavior, North Central College
2006-present Political Analyst, WDCB 90.9FM, public radio, Glen Ellyn, Illinois
1998-present Provide political analysis for print and broadcast media for international, national and local media organizations
2005-present North Central College Committees: Academic Program Assessment (chair, spring 2009-present; member, spring 2006-spring 2009); Strategic Planning Committee (fall 2006-spring 2007); Rall Symposium, co-coordinator (fall 2006-spring 2009); Phi Alpha Delta, co-advisor (spring 2006-spring 2008)
Fall 2006-pres. Educator Coach, North Central College Mock Trial Team
April 2011 Presented “Shades of Grey: Using Precise Language” as part of the Frankly Speaking diversity program at North Central College
March 2011 Moderated School Board Candidate Forum, District 200 (Illinois). Sponsored by Warrenville Wheaton PTA.
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Winter 2010 Acting chair, Department of Political Science, Sociology & Anthropology, North Central College
2007-2009 Political Analyst, CBS2 Chicago Morning News, WBBM, Chicago, Illinois Appearances can be viewed online at YouTube.com/SMCaliendo
Fall 2009 Chair of search committee for the hiring of two faculty members (open rank) in political science, North Central College
December 2009; Presented “Sharing and Enhancing Scholarship Online,” Technology Day, December 2008 North Central College
September 2009 Presented “Be Thoughtful: Contemplating the Language of Diversity” as part of First-Year Student Orientation, North Central College
Spring 2009 Chair of search committee for the hiring of a one-year, non-tenure-track faculty member in political science, North Central College
April 2009 Served as panel moderator at “Freedom Forum,” Andersons Book Shop, Naperville, Illinois
April 2009 Delivered keynote address at the annual “Multicultural Show,” Naperville North High School, Naperville, Illinois
April 2009 Presented “Shades of Grey: Using Precise Language” as part of the Frankly Speaking diversity program at North Central College
February 2009 Delivered keynote address at Young Ambassadors Leadership Conference, Naperville Park District, Naperville, Illinois
February 2009; Presented “Lawyer as Advocate: Government and Legislation” as part of the February 2008 Academy of Bar Leaders series, DuPage County (IL) Bar Association
January 2009 Presented “Hegemony and Power: Racism, Sexism and Heterosexism” to Catalyst Program, Plainfield South High School, Joliet, Illinois
January 2009 Participated in a panel (with Chicago Tribune columnist Dawn Turner Trice) entitled “Race and Politics in the Blogosphere,” North Central College
October 2008 Participated on a panel entitled “Race and Politics,” Elgin Community College, Elgin, Illinois
October 2008 Discussed the 2008 presidential elections, combined 3rd grade program, St. Mary’s Cathedral School, Lafayette, Indiana
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September 2008 Discussed Amistad on panel entitled “Law, Faith & Film,” North Central College, Naperville, Illinois
February 2008 Presented “’I Didn’t Mean It Like That . . .’: Bias and Ignorance in Language,” North Central College
August 2007 Led diversity workshop for residence life staff, North Central College
Fall 2007 Chair of search committee for the hiring of two faculty members (open rank) in political science, North Central College
Fall 2006 Member of search committee for the hiring of a faculty member (open rank) in political science, North Central College
2001-2005 Educator Coach, Avila University Mock Trial Team
2002-2005 Avila University Committees: Athletic Hall of Fame Committee, Curriculum Committee, Women’s Studies Steering Committee, Women’s Studies Advisory Council, Instructional Technology Advisory Committee (chair), Task Force for New Graduate Programs, Sexual Orientation Diversity Alliance
Spring 2005 Search committee for the hiring of a Visiting Assistant Professor of Political Science, School of Social Sciences and Social Work, Avila University.
Spring 2003 Search committee for the hiring of a Division chair/ full-time Social Work faculty member, Social Sciences Division, Avila University
Spring 2002 Search committee for the hiring of a full-time Social Work faculty member, Social Sciences Division, Avila College
1999-2001 Educator Coach, University of Missouri - St. Louis Mock Trial Team
1998- 2001 Provided occasional political analysis for a number of television and radio stations and services in St. Louis, Missouri. Topics ranged from election analysis to discussion of the Clinton scandal and impeachment.
Fall 1997- Assistant Coach, Purdue University Mock Trial Spring 1998
Fall 1996 Search committee for the hiring of two American Politics faculty, Department of Political Science, Purdue University
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1994-1998 Assistant to the Director and Coordinators, Indiana State Mock Trial Association Volunteer position in which I helped with organization and with scoring during the competitions.
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U.S. Application Serial Number 77952263 EXPERT REPORT OF RONALD R. BUTTERS, Ph.D. 1. This report is submitted on behalf of the Applicant, Simon Shiao Tam, in support of his application for trademark registration as noted above. I. Assignment 2. I have been asked to analyze the meaning (i.e., the DENOTATIONS and CONNOTATIONS) of the noun phrase, THE SLANTS, in the English language as spoken in the United States today, with particular reference to its possible use as a trademark that names a performing musical band. Of especial interest to the Applicant is the nature of any putative contemporary disparaging meanings and objectionable connotations of THE SLANTS as the term might be applied to some persons of Asian descent. I. Summary of Conclusions 3. The noun slant (said to be a shortening or CLIPPED FORM of the descriptive compound slant-eyed or slanted-eyed) has a history of use a derogatory racial or ethnic epithet referring to those persons of Asian descent whose normal eyes have a genetically determined shape sometimes described by physiologists as a PALPEBRAL SLANT accompanied with a fold of skin known as an EPICANTHAL FOLD. Linguists and rhetoricians call such a use of a word SYNECDOCHE, defined as the use of the name of a part of something to refer to the whole (cf. the SYNECDOCHES all hands on deck and the power behind the throne). It is a truism that persons against whom a term is by itself applied disparagingly generally find that term offensive. 4. It is arguably the case that slant was never as robust as many such pejorative epithets. However, in any case, the synecdochical use of slant as an abusive term, together with the offensive connotations of the word as understood by Asian Americans, has continued to diminish in the past decade, to the point where slant is at best archaic as a form of disparagement. Indeed, evidence points to the conclusion that persons of Asian descent (even those who exhibit the palpebral/epicanthal feature themselves) today increasingly view slant as a proud informal term of self-reference. I. Qualifications 5. I am a resident of Durham, North Carolina, and Professor Emeritus, Duke University, where I have served since 1967 as a member of the faculty in the Department of English and the Department of Cultural Anthropology. At various times, I have chaired both the English Department and the Linguistics Program. I earned my doctorate in English with a concentration in linguistics from the University of Iowa, Iowa City, where I received advanced training in the study of both linguistics and literature. My professional society memberships include the American Dialect Society, American Name Society, Dictionary Society of North America, Asociación de Lingüística y Filología de América Latina, Linguistic Society of America, Southeastern Conference on Linguistics, International Language and Law Association, and International Association of Forensic Linguists (of which I am currently president). Of particular importance to the current inquiry, I have been a member of the Advisory Board of the New Oxford American Dictionary, published by the Oxford University Press, now in its third edition, and I was 2 a Specialist Subject Consultant in Language (“Vulgar Slang/Homosexual Terms”) for the 2001 and 2005 editions of that work, advising in particular with respect to the usage labels for terms of abuse. A copy of my curriculum vitae, detailing my educational background, professional experience, teaching areas, publications, and testimony record for the past four years is attached hereto as “Exhibit 1.” 6. This report is made based on my professional knowledge and expertise, and on my research using established and accepted scientific linguistic knowledge and methodology. The information that I considered in forming the professional opinions expressed here is referenced as relevant throughout the report (see also the attached “Exhibit 2”). If sworn as a witness, I could testify competently to the matters stated herein. Insofar as I may continue to review additional information, I will be able to supplement, revise, or further explain the opinions set forth in this report. I understand that my duty in providing written reports and giving evidence is to assist the Trademark Board. I am in this case waiving my usual compensation of an hourly rate of $400. In compiling reports such as this one, my compensation is in any case not contingent on the outcome of the proceedings in which it has been solicited. 7. Within linguistics, the greatest portion of my scholarly work and teaching has focused upon contemporary American English and its antecedents, and languages influencing, or influenced by, English in the modern world. As “Exhibit 1” reflects, for more than 40 years I have been active in research and teaching in the field of contemporary English linguistics. I have written many scientific studies that have appeared in respected peer-reviewed linguistics journals and books, and I have given numerous oral presentations of the results of my work, frequently by invitation, before 3 learned societies both in the United States and abroad. I was also the editor of peer- reviewed scientific publications of the American Dialect Society for 25 years, and I have just completed a three-year term as a co-editor of the International Journal of Speech, Language, and Law (staying on, however, as a member of the Editorial Board). 8. In addition to my ongoing academic research interests, I am also self-employed as a consultant and expert in the field of linguistics. In this capacity, I have testified and/or served as an expert witness in cases filed in state and federal trial courts and boards in California, Delaware, the District of Columbia, Florida, Georgia, Illinois, Kansas, Louisiana, Maryland, Massachusetts, Missouri, New York, North Carolina, Ohio, Texas, Virginia, and West Virginia, as well as in proceedings of the United States Patent and Trademark Office’s Trademark Trial and Appeal Board. A list of all cases in which I have testified in court or by deposition in the past four years is appended hereto in “Exhibit 1.” III. Theory and Methodology 9. Linguistics is the scientific study of human language in all its various aspects— historical, cultural, social, and psychological—as exhibited in the spoken and written forms of the languages and dialects of the world. It encompasses a number of (often intersecting) scientific subfields, including phonology, the study of the sound structure of languages graphemics, the study of writing systems (including alphabetic spelling) morphology, the study of word structure syntax, the study of the rules for organizing words into phrases and sentences lexicology, the study of word meaning 4 lexicography, the science of dictionary making semantics, the study of word and sentence meanings discourse analysis, the study of linguistic units larger than the sentence, with particular reference to the importance of such units in the construction of meaning for speaker and hearer, writer and reader. pragmatics, the study of how such meaning is affected by nonlinguistic contexts semiotics, the study of extralinguistic and paralinguistic meaning systems that members of a culture assign to signs (gestures, colors, shapes, visual patterns, and icons) psycholinguistics, the psychology of language, that is, the study of language that focuses on the linguistic abilities of the individual sociolinguistics, the sociology of language, that is, the study of language that focuses on the linguistic behavior of groups (sometimes further subdivided into social and regional dialectology) historical linguistics, the study of the data and mechanisms of language change. In short, linguists study the facts and principles that underlie human languages and their communicative functions. 10. The science of the linguist and lexicographer is largely inductive rather than experimental. Linguists assemble the relevant data and, based upon an understanding of fundamental linguistic principles, form conclusions about the structure and meaning of the data (which may then be subject to verification by comparing the results to the results found for parallel linguistic data). In forming my conclusions in the present inquiry, I have drawn in particular upon my knowledge of historical linguistics, lexicography, lexicology, semantics, pragmatics, and discourse analysis. In methodology, I began with 5 an examination of the work of previous scholars as represented in dictionaries and academic writings. I then examined data of actual use of the epithet slant in American English today, with particular reference to how the term is used among Americans of Asian ancestry. IV. The Meaning of SLANT as Indicted by Scientifically Compiled Dictionaries and Other Works of Lexicographical Scholarship 11. The entry for slant in the first edition (2001) of the New Oxford American Dictionary (NOAD1), reads as follows in its entirety (pronunciations and etymology have been deleted; underlining was added to highlight the most relevant portions): slant ▶v. [no obj., with adverbial of direction] slope or lean in a particular direction; diverge from a vertical or horizontal line: a plowed field slanted up to the skyline | [as adj.] (slanting) the slanting beams of the roof. ❚ (esp. of light or shadow) fall in an oblique direction: the early sun slanted across the mountains. ❚ [trans.] cause (something) to lean or slope in such a way: slant your skis as you turn to send up a curtain of water. ❚ [trans.] [often as adj.] (slanted) present or view (information) from a particular angle, esp. in a biased or unfair way: slanted news coverage. ▶n. 1 [in sing.] a sloping position: the hedge grew at a slant | cut flower stems on the slant. 2 a particular point of view from which something is seen or presented: a new slant on science. 3 DEROGATORY a contemptuous term for an East Asian or Southeast Asian person. ▶adj. [attrib.] sloping: slant pockets. The second (2005) edition of the New Oxford American Dictionary (NOAD2) reads almost exactly the same, except for the lead-in to part 3 of the ▶n. definition, which was revised as follows: 3 informal, offensive a contemptuous term for an East Asian or Southeast Asian person. 6 The editors of the third (2010) edition of the New Oxford American Dictionary (NOAD3) have further revised the definition of slant, so that it now reads in its entirety as follows: ▶v. slope or lean in a particular direction; diverge or cause to diverge from the vertical or horizontal: [no obj.] a plowed field slanted up the skyline | [with obj.] slant your skis as you turn to send up a curtain of water. ■ (esp. of light or shadow) fall in an oblique direction: the early sun slanted across the mountains. ■[with obj.] (often as adj. slanted) present or view (information) from a particular angle, esp. in a biased or unfair way: slanted news coverage. ▶n. 1. [in sing.] a sloping position: the hedge grew at a slant | cut flower stems on the slant. 2. a particular point of view from which something is seen or presented: a new slant on science. ▶adj. [attrib.] sloping: slant pockets. Note that the usage label found in definition 3 of NOAD1 became somewhat ameliorated in the usage label of NOAD2, “DEROGATORY” and “contemptuous” becoming “informal, offensive” and “contemptuous.” Even more significantly, the entire epithetic definition and its pejorative usage labels were completely dropped from the dictionary. 12. The series of changes in the NOAD definition cannot be explained as an alteration in policy; NOAD3 still continues to generate usage labels bearing on the issue of ethnic slurs. See, for example, the NOAD3 entry for wop: wop ▶n informal offensive a contemptuous term for an Italian or other southern European. Rather, such changes in the definition of slant indicate that, in the opinion of the editors of NOAD3, the usage labels indicated in the 2005 edition no longer accurately portrayed the status of slant in 2010. Rather, it appears that the NOAD editors judged slant to have 7 been ameliorated to the extent that it has fallen into disuse as a pejorative racial epithet and is no longer considered particularly offensive to Asian-Americans themselves. 13. One might legitimately ask if a term could fall into disuse and/or change its connotations in only a decade. In fact, it appears that the NOAD2 editors sensed some amelioration of slant when they softened the definition from what appeared in NOAD1. In addition, dictionary makers tend to depend heavily upon other scholarship in constructing usage labels for ethnic and racial epithets. As the eminent lexicographer Sidney I. Landau points out Unfortunately, there are no agreed-upon criteria for finding some usages offensive or contemptuous or abusive. There are few studies that shed any light on the degree of offensiveness of specified terms under specified conditions. … How … dictionary editors decide what to label offensive or disparaging … is based on the editor’s judgment of society’s norms for the limits of reputable public behavior. He consults slang dictionaries and other written sources, including other general dictionaries. [Dictionaries: The Art and Craft of Lexicography, 2d edition, 2001, p233] Although NOAD1 was constructed in great part based on original research, when the editorial team (of which I was a part) wrote the original usage labels we also depended upon received wisdom as expressed in earlier dictionaries and academic articles, from which it is clear that slant had been considered offensive and intrinsically derogatory in earlier decades.1 For example, the American lexicographer Hugh Rawson wrote in his book Wicked Words: A Treasury of Curses, Insults, Put-Downs and Other Formerly Unprintable Terms from Anglo-Saxon Times to the Present (1989, p358): 1The earliest reference to the epithetic sense of slant is found in Lester V. Berrey, Melvin Van den Bark’s 1942 dictionary, The American Thesaurus of Slang: A Complete Reference Book of Colloquial Speech, “§385/19 Oriental, slant.” See “slant, n.1,” the Oxford English Dictionary, Second edition, 1989; online version March 2011. 8 slant. An Oriental, or any vaguely Oriental-looking person with slanted eyes. “To the G.I., the Vietnamese … is a ‘gook,’ ‘dink’, ‘slope’, or ‘slant’ (Time, 12/5/69). Slant, dating from the start of World War II, is short for slant-eye. (The O[xford]E[nglish]D[ictionary] traces the adjective slant-eyed to 1865 in its Oriental sense). And in Unkind Words: Ethnic Labeling from Redskin to Wasp, the University of Connecticut sociologist Irving Lewis Allen wrote (1990, p18): Nearly half of all interracial slurs (whites slurring blacks, Asians, and Native Americans—and these racial minorities slurring whites) refer to real or imagined racial differences. Whites have called Asian-American groups slant-eyes and Asians have begin calling whites round eyes as a comeback. As early as 1981, the Northwestern University lexicographer and linguist Richard A. Spears, in his dictionary, Slang and Euphemism (p57) defined both slant and slant-eye as A derogatory nickname for any Oriental. From the shape of the Oriental eyes. 14. As Landau noted in his book (op cit.), the period leading up to 2001 was an era in which lexicographers, responding to the pressures for what have come to be known as “politically correct” responses to language, were much quicker to assign pejorative labels to epithets than they had been in the middle decades of the twentieth century, and earlier: If, in the past, dictionaries were too slow to label terms of insult, they now seem too quick to do so. Many hundreds of terms now labeled as disparaging, contemptuous, of offensive in dictionaries, often on the strength of dubious evidence but out of fear that they will be taken as insensitive to some group. [p234] Dictionary labeling of insult is essentially political and moral. Every major English dictionary today takes a stand on the side of those who deplore racial and ethnic bigotry, oppose discrimination and abuse directed towards women and gays, and endorse diversity of opinion and life styles. Some take a stronger stand than others, using aggressive labels and adopting on occasion a tone of moral urgency, whereas some take a more detached approach. … [p232] 9 Thus in decades up to the time of the writing of NOAD1, a consensus developed that offensive and derogatory implications of slant were generally significant enough that they should still be recognized in the dictionary. However, this conclusion appears to have been reconsidered as NOAD2 and then NOAD3 appeared. 15. This is not to say that one will not find current dictionaries that still list such usage labels for slant. Dictionary makers are by nature conservative, if only because changes are costly and time-consuming, and the process of revising definitions, while ongoing, cannot be immediate. Lexicographers are far more likely to make use of their finite energies in revising central denotations and adding new words than in fine-tuning relatively narrow usage labels for ethnic epithets, even those that may be in the final stages of becoming archaic. As Landau’s 2001 comments suggest, it has been safer to proscribe ethnic labels than to ignore them and risk being labeled insensitive. Usage labels take a back seat to more urgent matters: Making a dictionary is like painting a bridge: by the time that one coat of paint has been applied, the bridge is in need of another. … [After ten or fifteen years] the language has accumulated too many new meanings and new words; too many of the definitions of the dictionary have taken on new emphases or passed form slang to formal usage or from informal to standard; too much of the book is written with a vocabulary and style that seems odd or baffling to new readers. [Landau, op cit., p396; p 397] 16. It is also not to say that one could never today find slant used in a disparaging context. Indeed, any racial, national, or ethnic epithet can be used in a derogatory or offensive way if, in context, offensiveness is clearly conveyed. For example, so innocuous a term as baby boomers can be used disparagingly and with intent to offend (e.g., “the stinking baby boomers are going to bankrupting this country”). But such a use 10 is not evidence that the word itself is intrinsically disparaging or derogatory, or that the word itself will be received as offensive by the persons it is intended to describe. 17. One further sociolinguistic fact that might explain why slant is a word that resists inferences of offensive connotations is that the English language offers no viable alternative for ordinary-language description of the genetically determined physiological feature of many Americans of Asian descent that occasioned the epithet in the first place. That is to say, even moreso than white, blonde or blue-eyed, slant-eyed (the full form from which epithetic slant is derived), in any circumstance in which one needs to refer to this particular anatomical feature, slant-eyed is virtually a necessary term—one without viable synonyms. The scientific alternative—PALPEBRAL SLANT (or, more precisely, PALPEBRAL SLANT with accompanying EPICANTHAL FOLD) is so rare that it does not even appear in dictionaries—and even it contains the word slant. And the scientific terminology is so rare and unsettled that even the authoritative, massively unabridged Oxford English Dictionary does not to this day contain PALPEBRAL SLANT or EPICANTHAL FOLD (indeed, EPICANTHAL does not appear at all, the OED listing only the alternative form, EPICANTHIC). Given that Americans of Asian origin have no term to describe a feature of their own bodies except slant, it is easy to understand that the term itself would not easily maintain robust connotations of offensiveness. IV. The Current Acceptability of SLANT as an Epithet of Positive Self-Reference Among Americans of Asian Descent. 18. As an inductive science, lexicography depends heavily on the assembling of empirical data of actual use. Landau cautions that, in deciding about the applicability of such usage labels as offensive or disparaging, such usual lexicographical sources as “citation files and corpora are not of much help” generally (op cit., p233). This is largely 11 because it is difficult to disengage the sense of disparagement that is conveyed by the context of utterance from whatever putative sense of disparagement may be conveyed intrinsically by the word itself. Even so, such examples of actual usage as I examine in this section are linguistically probative in that they illustrate the non-pejorative self- referential use of slant in the public domain by the very persons who would have to be offended by it if it were to be adjudged offensive. 19. In Chicago, television station KBC-TV produced a sixteen-episode “entertainment and news series” about “the Asian-American experience right in the middle mecca of the U.S. (ion 2009)” which is titled The Slant.2 Some of the 16 episodes broadcast today are also available on YouTube.3 No apparent explicit connection is drawn in the website material between the racial epithet slant and the Asian-American community in Chicago that the series is intended to serve. While it seems unlikely that the producers of the series were completely unaware of the epithetic use of slant and its putatively disparaging connotations, the lack of extensive comment indicates that the name was chosen not as an ironic reclamation of an erstwhile synecdochical derogatory epithet but rather as an unobjectionable term of self-reference which also the basic meaning (as in the NOAD definitions shown in ¶11 above), “a particular point of view from which something is seen or presented.” 20. Since 2007, a blog at the address 2See 12 reference Here is the philosophy of the author, as announced in 2007 (underlining added):4 What is the goal of Slant Eye for the Round Eye? Did you have any specific intentions in starting the blog? Even though there're some great Asian American blogs and voices out there, I still wanted to add my own voice into the mix. I wanted to promote the community, talk about things that mainstream media didn't always touch upon or write about in-depth, as well as just blog about things that mattered to me, from my perspective. In some ways that's one of the main reasons why I blog - to kind of say that sure, I might be an Asian American who blogs, and I might talk about some of the same things that other Asian American bloggers, or Asian American media outlets do, but I'm not the same either. While I'm a part of the community, I'm still an individual, and I think as far as the Asian American community goes, as well as just being a POC [person of color], there's power in that because of our history, because we’ve sometimes been seen as this homogeneous group who knows no separation from each other, when in reality, there is that separation. At the same time, I know that a big part of the reason I blog is simply because I love seeing all the great people from our community who do their thing—no matter what it is—I just can't help not talking about it because I do get excited when I see Asian Americans and Asian faces breaking new ground, pushing new boundaries, or just simply being comfortable in who they are and saying to everyone around them, “This is who I am.” On the author’s FaceBook page one even finds a coined word, slanatalicious, generated in the unselfconscious sense of self-reference:5 And he also uses the following subheading phrase, Getting To Know Your Slanty 4 13 which appears on every opening page of the blog. In short, the author of the “Slant Eye for the Round Eye” blog views slant as a basic term of self-reference. His use is certainly not disparaging, and the evidence is clear that he does not find it intrinsically offensive, or he would not use it so fundamentally and even playfully. 21. Houston, Texas, for the past ten years, has been the site of a film festival called Slant Film Festival and subtitled “Bold Asian American Images.”6 The mission statement of the festival is given as follows:7 Slant: Bold Asian American Images is an annual shorts film festival in Houston, Texas. Slant showcases an eclectic mix of the best short films made by aspiring, emerging and mid-career Asian American artists. Through our film festival, DVDs and performances, we provide a fresh perspective on the Asian American experience. The festival features all genres including narrative, experimental, documentary and animation. Works accepted into the festival often combat tired stereotypes of Asian Americans with quirky comedies and compelling visions. Slant was established in 2001 by Melissa Hung, the founding editor of Hyphen, a magazine about Asian American culture. One of the longest-running festivals in Texas devoted to Asian American film and video art, the festival has screened more than a hundred films, many of them showing in Texas for the first time. From the beginning, Slant has made its home at the Aurora Picture Show, a nonprofit microcinema. In presenting this festival, Aurora participates in exploring the power of moving images in crafting identity and community. There is nothing apparent on the Slant Film Festival website that suggests that the epithet slant is objectionable to any of the Asian Americans who are associated with the festival in any way. The term simply suggests informal self-reference, with the possible additional sense of slant as (again) the NOAD definitions shown in ¶11 above indicate, “a particular point of view from which something is seen or presented.” 6 14 22. The Slanted Screen: Asian Men in Film and Television, is the name of a 2006 documentary film that “portrayals of Asian men in American cinema, chronicling the experiences of actors who have had to struggle against ethnic stereotyping and limiting roles.” While slant in the title is a play on words between slant as an informal epithet and slant in the meaning “present … from a particular angle, esp. in a biased or unfair way” (see ¶11 above), there is no sense that slant is seen as an objectionable term per se; at most, the film title reclaims slant from whatever pejorative past it may have had, and any sense of disparagement is lost in the use of the term as self-reference. As the website writes, the emphasis of the film is on the positive aspects of slant: The film presents a critical examination of Hollywood's image- making machine, through a fascinating parade of 50 film clips spanning a century. … Winner of the Best Short Documentary award at the NY International Independent Film & Video film festival, The Slanted Screen envisions a new, exciting future in the entertainment industry, where the diversity of our culture and society is fully recognized and represented. V. Conclusion 23. The contemporary musical band that calls itself The Slants has selected a name that corresponds to the twenty-first century usage of the term slant as a racial and/or ethnic term of positive self-reference. Like all ethnic and racial epithets, there may be contexts in which slant forms a part of a more general disparaging context of deprecation; one may, after all, say “filthy Swede,” “disgusting lesbian,” or “lying American dog.” But such uses do not make Swede or American intrinsically disparaging or objectionable to Swedes, lesbians, or Americans. While dictionaries may continue to label slant as a pejorative term, this is readily explained by the fact that dictionaries in general lag somewhat in updating entries with respect to linguistic change, and, particularly with the treatment of ethnic labels a desire to do nothing that could possibly 15 provoke controversy. Moreover, the evidence of the history of entries in New Oxford American Dictionary supports the contention that the empirical data demonstrate: even if some Asian Americans in the last century may have felt slant to be an objectionable epithet, the term has been reclaimed by contemporary Asian Americans for use as an informal term representing racial and ethnic pride. I declare under penalty of perjury that the foregoing is true and correct. Ronald R. Butters, Ph.D. April 25, 2011 Durham, North Carolina 16 No. In the Supreme Court of the United States MICHELLE K. LEE, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE, PETITIONER v. SIMON SHIAO TAM ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT PETITION FOR A WRIT OF CERTIORARI DONALD B. VERRILLI, JR. Solicitor General Counsel of Record BENJAMIN C. MIZER Principal Deputy Assistant Attorney General MALCOLM L. STEWART Deputy Solicitor General NICOLE A. SAHARSKY Assistant to the Solicitor SARAH HARRIS General General Counsel DOUGLAS N. LETTER THOMAS W. KRAUSE MARK R. FREEMAN Acting Solicitor DANIEL TENNY CHRISTINA J. HIEBER JOSHUA M. SALZMAN THOMAS L. CASAGRANDE MOLLY R. SILFEN MARY BETH WALKER Attorneys Associate Solicitors Department of Justice U.S. Patent and Trademark Washington, D.C. 20530-0001 Office [email protected] Alexandria, Va. 22313 (202) 514-2217 QUESTION PRESENTED Section 2(a) of the Lanham Act, 15 U.S.C. 1052(a), provides that no trademark shall be refused registra- tion on account of its nature unless, inter alia, it “[c]onsists of * * * matter which may disparage * * * persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The question presented is as follows: Whether the disparagement provision in 15 U.S.C. 1052(a) is facially invalid under the Free Speech Clause of the First Amendment. (I) TABLE OF CONTENTS Page Opinions below ...... 1 Jurisdiction ...... 1 Statutory and regulatory provisions involved ...... 2 Statement ...... 2 Reasons for granting the petition ...... 8 I. The court of appeals’ invalidation of an Act of Congress warrants this Court’s review ...... 9 II. The court of appeals erred in holding that Section 1052(a) is unconstitutional ...... 10 A. Section 1052(a) does not restrict speech ...... 10 B. Section 1052(a) establishes lawful eligibility criteria for federal trademark registration ...... 14 III. The question presented is important ...... 22 Conclusion ...... 25 Appendix A — En banc court of appeals opinion (Dec. 22, 2015) ...... 1a Appendix B — Court of appeals opinion (Apr. 20, 2015) ...... 123a Appendix C — Trademark Trial and Appeal Board opinion (Sept. 26, 2015) ...... 162a Appendix D — Statutory provision ...... 183a TABLE OF AUTHORITIES Cases: Ashcroft v. ACLU, 542 U.S. 656 (2004) ...... 10 B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293 (2015) ...... 3, 11 Bates v. State Bar, 433 U.S. 350 (1977) ...... 19 Blodgett v. Holden, 275 U.S. 142 (1927) ...... 9 Boulevard Entm’t, Inc., In re, 334 F.3d 1336 (Fed. Cir. 2003) ...... 12 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ...... 9 (III) IV Cases—Continued: Page Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) ...... 20 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ...... 9 McGinley, In re, 660 F.2d 481 (C.C.P.A. 1981) ...... 6, 12 National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)...... 15, 18 Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189 (1985)...... 2 Pleasant Grove City v. Summum, 555 U.S. 460 (2009) ...... 18 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ...... 13 Regan v. Taxation With Representation of Wash., 461 U.S. 540 (1983)...... 14, 15 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995)...... 13 Rostker v. Goldberg, 453 U.S. 57 (1981) ...... 9 Rust v. Sullivan, 500 U.S. 173 (1991) ...... 14, 15, 16, 18, 19 San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987) ...... 20 Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559 (5th Cir. 2005), cert. denied, 547 U.S. 1055 (2006) ...... 12 Trade-Mark Cases, In re, 100 U.S. 82 (1879) ...... 3, 11 Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992) ...... 3 United States v. Alvarez, 132 S. Ct. 2537 (2012) ...... 9 United States v. Stevens, 559 U.S. 460 (2010) ...... 9 United States v. Williams, 553 U.S. 285 (2008) ...... 9 Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015) ...... 14, 16, 17, 18 Wooley v. Maynard, 430 U.S. 705 (1977) ...... 17 V Constitution, treaty and statutes: Page U.S. Const. Amend. I ...... passim Paris Convention for the Protection of Industrial Property art. 6quinquies, July 14, 1967, 21 U.S.T. 1583, 828 U.N.T.S. 305 ...... 22 Act of Feb. 20, 1905, ch. 592, § 5, 33 Stat. 725...... 22 Act of July 5, 1946, ch. 540, 60 Stat. 427 (15 U.S.C. 1051 et seq.) ...... 3 15 U.S.C. 1051(a) ...... 4 15 U.S.C. 1052 ...... 4, 10 15 U.S.C. 1052(a) (§ 2(a), 60 Stat. 428) ...... passim 15 U.S.C. 1052(b) ...... 4 15 U.S.C. 1052(c) ...... 4 15 U.S.C. 1052(d) ...... 4 15 U.S.C. 1052(e) ...... 4, 12 15 U.S.C. 1052(e)(5) ...... 4 15 U.S.C. 1057(a) ...... 15 15 U.S.C. 1057(b) ...... 3 15 U.S.C. 1065 ...... 3 15 U.S.C. 1071(a) ...... 23 15 U.S.C. 1072 ...... 3 15 U.S.C. 1091 ...... 16 15 U.S.C. 1115(a) ...... 3 15 U.S.C. 1115(b) ...... 3 15 U.S.C. 1117(a) ...... 12 15 U.S.C. 1125(a) ...... 4, 11 15 U.S.C. 1125(b) ...... 4, 11 15 U.S.C. 1125(d) ...... 4, 11 15 U.S.C. 1127 ...... 2, 11 15 U.S.C. 1141a ...... 22 15 U.S.C. 1141b ...... 22 VI Statute—Continued: Page 28 U.S.C. 1295(a)(4)(B) ...... 23 Miscellaneous: 1 Anne Gilson LaLonde, Gilson on Trademarks, (2015) ...... 3 U.S. Patent and Trademark Office, Exam Guide 01- 16: Examination for Compliance with Section 2(a)’s Scandalousness and Disparagement Provi- sions While Constitutionality Remains in Ques- tion (Mar. 2016), http://www.uspto.gov/trademark/ guides-and-manuals/trademark-examination- guides ...... 23 In the Supreme Court of the United States No. MICHELLE K. LEE, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE, PETITIONER v. SIMON SHIAO TAM ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT PETITION FOR A WRIT OF CERTIORARI The Solicitor General, on behalf of the Director of the United States Patent and Trademark Office, re- spectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit in this case. OPINIONS BELOW The opinion of the en banc court of appeals (App., infra, 1a-122a) is reported at 808 F.3d 1321. The opinion of a panel of the court of appeals (App., infra, 123a-161a) is reported at 785 F.3d 567. The opinion of the Trademark Trial and Appeal Board (App., infra, 162a-182a) is available at 2013 WL 5498164. JURISDICTION The judgment of the court of appeals was entered on December 22, 2015. On March 10, 2016, the Chief Justice extended the time within which to file a peti- (1) 2 tion for a writ of certiorari to and including April 20, 2016. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED The First Amendment to the Constitution provides, in relevant part: “Congress shall make no law * * * abridging the freedom of speech.” Section 1052 of Title 15 of the United States Code is repro- duced in the appendix to this petition. App., infra, 183a-186a. STATEMENT This case involves a facial First Amendment chal- lenge to Section 2(a) of the Lanham Act, 15 U.S.C. 1052(a). That provision directs the United States Patent and Trademark Office (PTO) to refuse regis- tration of trademarks that “disparage * * * per- sons, living or dead, institutions, beliefs, or national symbols.” Ibid. Respondent sought federal registra- tion for the mark THE SLANTS in connection with his dance-rock band. The PTO refused registration on the ground that the mark refers to persons of Asian ancestry and is disparaging to them. App., infra, 162a-182a. The en banc court of appeals held the disparagement provision of Section 1052(a) facially invalid under the First Amendment. Id. at 1a-122a. 1. A trademark is a “word, name, symbol, or de- vice” used by a person “to identify and distinguish his or her goods” in commerce and “to indicate the source of the goods.” 15 U.S.C. 1127. “[T]rademarks desira- bly promote competition and the maintenance of product quality.” Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 193 (1985). Trademark law also protects the public by preventing competing 3 merchants from using confusingly similar marks to mislead consumers about the source of the goods and services they purchase. See, e.g., B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1299 (2015); Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 774 (1992). Federal law does not create trademarks or trade- mark rights. See, e.g., In re Trade-Mark Cases, 100 U.S. 82, 92 (1879). Trademark rights arise through use of a mark in commerce in connection with particu- lar goods and services. 1 Anne Gilson LaLonde, Gil- son on Trademarks, § 3.02[2][a] (2015). The holder of a trademark may use and enforce his mark without federal registration. See B & B Hardware, Inc., 135 S. Ct. at 1299. As a supplement to common-law protection, Con- gress has created a federal trademark-registration system and has provided federal remedies for mark owners against infringement, dilution, and unfair competition. See Act of July 5, 1946, ch. 540, 60 Stat. 427 (Lanham Act) (15 U.S.C. 1051 et seq.). Federal registration confers certain benefits on trademark owners who register their marks. See B & B Hard- ware, 135 S. Ct. at 1300. For example, registration provides prima facie evidence of the owner’s exclusive right to use the mark in connection with certain goods or services in commerce. 15 U.S.C. 1057(b), 1115(a). Registration also provides constructive notice of the registrant’s claim of ownership of the mark. 15 U.S.C. 1072. After five years of registration, an owner’s right to use a trademark can become “incontestable” and may be challenged only on very limited grounds. 15 U.S.C. 1065, 1115(b). But many of the federal reme- dies created by the Lanham Act are available to own- 4 ers of all marks, without regard to registration. See 15 U.S.C. 1125(a) (federal cause of action for repre- sentations about the origin of goods or services that are likely to confuse consumers), (b) (importation ban), and (d) (remedy for cybersquatting). To obtain federal registration, the trademark own- er submits an application to the PTO. 15 U.S.C. 1051(a). The PTO is not required to register every mark for which an application is filed. Rather, Con- gress directed the PTO to “refuse[] registration” of certain categories of marks “on account of [their] nature.” 15 U.S.C. 1052. This case concerns one of those categories—marks consisting of or comprising “matter which may disparage * * * persons, living or dead, institutions, beliefs, or national sym- bols, or bring them into contempt, or disrepute.” 15 U.S.C. 1052(a).1 2. Respondent is the lead singer of a dance-rock band called “The Slants.” App., infra, 10a. In 2011, he sought to federally register THE SLANTS as a trademark for use in connection with live performanc- es by his band. Id. at 162a & n.1, 166a; see C.A. App. A23-A36 (respondent’s trademark application). 2 Re- spondent had been using the mark in commerce since 1 Other categories include immoral, deceptive, or scandalous marks, 15 U.S.C. 1052(a); marks containing a flag, coat of arms, or insignia of the United States, a State, or a foreign nation, 15 U.S.C. 1052(b); marks including a name, portrait, or signature of a living person without his or her consent, 15 U.S.C. 1052(c); marks that so resemble other marks that they are likely to cause confusion, 15 U.S.C. 1052(d); marks that are merely descriptive, 15 U.S.C. 1052(e); and marks that are functional, 15 U.S.C. 1052(e)(5). 2 Respondent originally filed a trademark application for THE SLANTS in 2010, but then abandoned that application. App., infra, 10a n.2. 5 2006. App., infra, 10a. A PTO examining attorney refused registration on the ground that the mark is disparaging to persons of Asian ancestry. Id. at 163a; see C.A. App. A41-A44. The PTO’s Trademark Trial and Appeal Board (Board) affirmed. App., infra, 162a-182a. The Board concluded that the mark is used to refer to an identifi- able group of people—persons of Asian ancestry—and that the mark is disparaging to a substantial compo- site of such people. Id. at 173a-174a, 180a-181a. The Board explained that dictionary definitions and other sources cited by the parties “unanimously categorize the word ‘slant,’ when meaning a person of Asian descent, as disparaging.” Id. at 180a. The Board also cited record evidence that Asian individuals and groups had specifically objected to respondent’s use of the term as the name for his band. Id. at 167a-168a. And the Board noted that members of the band have said that they use the word “slant” because it is “an ethnic slur for Asians” and the band wishes to “take on stereotypes” about Asians. Id. at 166a. The Board further determined that the PTO’s refusal to register the mark does not violate the First Amendment be- cause the denial of registration does not suppress speech or proscribe conduct, but simply prevents respondent from calling upon the resources of the federal government to assist him in enforcing his rights in THE SLANTS. Id. at 181a-182a. 3. A panel of the court of appeals affirmed. App., infra, 123a-161a. The court first rejected respond- ent’s argument that the Board had erred in finding the mark disparaging under Section 1052(a). The court concluded that substantial evidence supports the Board’s conclusions that “the mark THE SLANTS 6 refers to people of Asian descent” and that the mark “is likely offensive to a substantial composite of people of Asian descent.” Id. at 127a-131a. The court noted that “the definitions in evidence universally character- ize the word ‘slant’ as disparaging, offensive, or an ethnic slur when used to refer to a person of Asian descent.” Id. at 130a. The court of appeals rejected respondent’s various constitutional challenges, including his facial First Amendment challenge to Section 1052(a). Relying on circuit precedent, the court explained that “the PTO’s refusal to register [the] mark does not affect his right to use it”; that “[n]o conduct is proscribed, and no tangible form of expression is suppressed”; and that respondent’s First Amendment rights therefore are not “abridged by the refusal to register his mark.” App., infra, 131a (quoting In re McGinley, 660 F.2d 481, 484 (C.C.P.A. 1981)); see id. at 131a-132a (citing other Federal Circuit decisions reaching the same conclusion). In a separate opinion, Judge Moore urged the court to “revisit [its prior] holding on the constitutionality of § 2(a) of the Lanham Act.” App., infra, 135a (Moore, J., providing additional views). 4. The en banc court of appeals held that Section 1052(a)’s disparagement provision is facially unconsti- tutional under the First Amendment, vacated the Board’s decision, and remanded for further proceed- ings. App., infra, 1a-122a. 3 The government had argued that Congress may, consistent with the First Amendment, create an optional program of federal 3 The en banc court of appeals upheld the Board’s finding that THE SLANTS is disparaging within the meaning of 15 U.S.C. 1052(a). App., infra, 12a n.3. 7 trademark registration without opening that program to racial slurs or other disparaging marks. See id. at 27a-28a. The court rejected that characterization of the program, concluding that the trademark- registration scheme is a law “penaliz[ing] private speech merely because [the government] disapproves of the message it conveys.” Id. at 2a. Because the court viewed Section 1052(a) as a viewpoint-based restriction on speech, it subjected the provision to strict scrutiny and found it invalid. Id. at 17a-19a, 67a. The court also stated that it would find Section 1052(a) unconstitutional even under the more forgiv- ing commercial-speech standard because there is no “substantial government interest justifying the” ban on registration of disparaging marks. Id. at 61a-67a. Judge O’Malley (joined by Judge Wallach) filed a concurring opinion. App., infra, 68a-80a. Those judg- es agreed that Section 1052(a)’s disparagement provi- sion is facially unconstitutional under the First Amendment, and they would also have held that the provision is impermissibly vague. Id. at 68a. Judge Dyk concurred in part and dissented in part. Id. at 80a-104a. He would have held that Section 1052(a) is facially constitutional because registration is a gov- ernment benefit for commercial speech that reasona- bly may be denied to disparaging marks, id. at 90a- 97a, but that Section 1052(a) is unconstitutional as applied in this case because respondent’s use of his mark involves “political” speech, id. at 103a-104a. 4 4 Judge Dyk was joined by Judges Lourie and Reyna with respect to his conclusion that Section 1052(a)’s disparagement pro- vision is facially constitutional, but not with respect to his conclu- sion that the provision is unconstitutional as applied. See App., infra, 80a. 8 Judge Lourie dissented, concluding that Section 1052(a) is constitutional because it does not prohibit any speech but instead denies the benefits of registra- tion to private disparaging speech. Id. at 105a-108a. Judge Reyna also dissented, expressing the view that Section 1052(a)’s disparagement provision is a permis- sible regulation of commercial speech because it “di- rectly advances the government’s substantial interest in the orderly flow of commerce.” Id. at 108a-109a. REASONS FOR GRANTING THE PETITION The en banc court of appeals held that the dispar- agement provision in Section 2(a) of the Lanham Act, 15 U.S.C. 1052(a), is facially unconstitutional. That holding is incorrect and warrants this Court’s review. Section 1052(a) does not prohibit any speech, pro- scribe any conduct, or restrict the use of any trade- mark. Nor does it restrict a mark owner’s common- law trademark protections. Rather, Section 1052(a) directs the PTO not to provide the benefits of federal registration to disparaging marks. The Federal Cir- cuit nonetheless treated the registration ban as an affirmative restriction on speech and, applying strict scrutiny, declared it facially unconstitutional. The court of appeals disregarded this Court’s teaching that, when Congress does not restrict private speech or conduct, but simply offers federal benefits on terms that encourage private activity consonant with legisla- tive policy, it has significant latitude to consider the content of speech in defining the terms on which the benefits will be provided. The question presented is important. The statuto- ry provision at issue here has guided the PTO’s deci- sions for 70 years. Absent this Court’s review, the Federal Circuit’s ruling will effectively resolve the 9 validity of Section 1052(a)’s disparagement provision nationwide because any applicant for trademark regis- tration may obtain judicial review of an adverse deci- sion of the PTO in that court. The petition for a writ of certiorari should be granted. I. THE COURT OF APPEALS’ INVALIDATION OF AN ACT OF CONGRESS WARRANTS THIS COURT’S RE- VIEW The Court should grant review because the court of appeals has held that a longstanding federal statutory provision is facially unconstitutional. See App., infra, 20a n.5 (“[W]e conclude that § 2(a) is invalid on its face.”); id. at 68a (“We hold that the disparagement provision of § 2(a) is unconstitutional because it vio- lates the First Amendment.”); see also id. at 19a n.5 (noting the parties’ agreement that “this appeal is appropriately viewed as involving a facial challenge”). Facial invalidation of a statute under the First Amendment is “strong medicine” that should be em- ployed “sparingly and only as a last resort.” Broad- rick v. Oklahoma, 413 U.S. 601, 613 (1973). And any decision invalidating an Act of Congress on constitu- tional grounds is significant. See Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (noting that judging the consti- tutionality of an Act of Congress is “the gravest and most delicate duty that this Court is called upon to perform”) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.)). This Court has often re- viewed holdings that a federal law is invalid under the First Amendment, even in the absence of a circuit split. See, e.g., United States v. Alvarez, 132 S. Ct. 2537, 2543 (2012); Holder v. Humanitarian Law Pro- ject, 561 U.S. 1, 14 (2010); United States v. Stevens, 559 U.S. 460, 467 (2010); United States v. Williams, 10 553 U.S. 285, 292 (2008); Ashcroft v. ACLU, 542 U.S. 656, 664 (2004). Under the “sweeping holding” of the court below, the PTO may not use Section 1052(a) to refuse regis- tration as a trademark of even the most vile racial epithet. App., infra, 80a (Dyk, J., concurring in part and dissenting in part). By treating eligibility criteria for participation in a voluntary federal program as constitutionally equivalent to affirmative restrictions on speech, the court of appeals has cast doubt on Con- gress’s ability to determine when the federal govern- ment will lend its assistance to private actors. A deci- sion that so limits Congress’s authority deserves this Court’s immediate review. II. THE COURT OF APPEALS ERRED IN HOLDING THAT SECTION 1052(a) IS UNCONSTITUTIONAL Section 1052(a) does not restrict any speech or re- strain any form of expression. Common-law trade- mark rights exist and may be enforced without regard to federal registration. Section 1052(a) simply reflects Congress’s judgment that the federal government should not affirmatively promote the use of racial slurs and other disparaging terms by granting them the benefits of registration. That judgment does not violate the First Amendment. A. Section 1052(a) Does Not Restrict Speech 1. The “first step” in a First Amendment analysis is “to construe the challenged statute.” Williams, 553 U.S. at 293. The statute at issue here directs the PTO to “refuse[] registration” of certain categories of trademarks “on account of [their] nature.” 15 U.S.C. 1052. One such category is marks that “[c]onsist[] of or comprise[] * * * matter which may dispar- 11 age * * * persons, living or dead, institutions, beliefs, or national symbols, or bring them into con- tempt, or disrepute.” 15 U.S.C. 1052(a). The sole effect of this provision is that various benefits of fed- eral registration are not available for disparaging marks. See App., infra, 4a-5a (listing those benefits). Section 1052(a) does not restrict the terms or im- ages that may lawfully be used as trademarks. A trademark is “any word, name, symbol, or device” used by a person “to identify and distinguish his or her goods” in commerce and “to indicate the source of the goods.” 15 U.S.C. 1127. Trademark rights are created by use of the mark to identify goods and ser- vices in commerce, not by federal law. See B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1299 (2015) (explaining that “federal law does not create trademarks”; rather, a person who “first uses a distinct mark in commerce * * * acquires rights to that mark”); see also In re Trade-Mark Cases, 100 U.S. 82, 92 (1879). Even without federal registration, respondent may use a disparaging racial term to identify his band’s goods and services in commerce. Respondent began using his mark in commerce in 2006 and has acquired rights to enforce his mark through that use. App., infra, 10a. In addition to any common-law protec- tions, respondent has federal remedies under the Lanham Act against those who misuse his mark or misappropriate any goodwill associated with it, even though it is not registered. Those remedies include a cause of action for false association, 15 U.S.C. 1125(a); a prohibition on importing goods bearing confusingly similar marks, 15 U.S.C. 1125(b); protection against cybersquatting, 15 U.S.C. 1125(d); and authorization 12 of treble-damages awards for certain types of in- fringement, 15 U.S.C. 1117(a).5 2. The court of appeals erred in equating Section 1052(a)’s disparagement provision with an affirmative restriction on speech. As that court previously had recognized, “the refusal to register a mark does not proscribe any conduct or suppress any form of ex- pression because it does not affect the applicant’s right to use the mark in question.” In re Boulevard Entm’ t, Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003); see In re McGinley, 660 F.2d 481, 484 (C.C.P.A. 1981) (PTO’s refusal to register a mark “does not affect [the applicant’s] right to use it”; “[n]o conduct is pro- scribed, and no tangible form of expression is sup- pressed”). The Fifth Circuit applied the same reason- ing in holding that an applicant had no First Amend- ment right to register a trademark that was merely descriptive. Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 567-568, 578 n.9 (2005), cert. denied, 547 U.S. 1055 (2006); see 15 U.S.C. 1052(e); Pet. App. 16a. Section 1052(a) does not prevent respondent from promoting his band using any racial slur or image he wishes. It does not limit how respondent may adver- tise, what songs he may sing, or what messages he may convey. Respondent’s freedom of expression is no more restricted by federal law now than it was in 2006, when he first used THE SLANTS to identify his band. The court of appeals viewed Section 1052(a)’s dis- paragement provision as “penaliz[ing] private speech” 5 Although the court of appeals suggested that federal registra- tion is necessary to obtain some of these remedies, App., infra, 4a- 5a, that suggestion reflects a misunderstanding of federal trade- mark law. 13 because the government “disapproves of the message it conveys.” App., infra, 2a. As an initial matter, the court was wrong to view Section 1052(a) as a view- point-based provision. Section 1052(a) prohibits regis- tration of trademarks containing certain words with- out regard to the “ideology,” “opinion,” or “perspec- tive” of the trademark owner. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). That congressional judgment is permissible. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) (there is no viewpoint discrimination when a statute prohibits use of “odious racial epithets” by “propo- nents of all views”). In this case, the Board’s denial of registration was not based on any finding that re- spondent intended to disparage Asians. To the con- trary, the Board determined that Section 1052(a) prohibits registration of respondent’s mark despite the fact that respondent’s stated purpose for using the mark is to “reclaim” the slur as a sign of ethnic pride. App., infra, 10a, 166a.6 6 In his separate concurring and dissenting opinion, Judge Dyk concluded that Section 1052(a) is facially constitutional because trademark registration is a benefit for commercial speech that reasonably may be denied for disparaging marks. App., infra, 90a- 97a. He would have held, however, that Section 1052(a) is uncon- stitutional as applied to this case because respondent’s own “choice of mark ref lects a clear desire to editorialize on cultural and politi- cal subjects. [Respondent] chose THE SLANTS at least in part to reclaim the negative racial stereotype it embodies.” Id. at 102a- 103a. But if Congress or the PTO had drawn the distinction that the concurring judge suggested—i.e., approving respondent’s application based on the “cultural and political” message that respondent sought to convey, even though THE SLANTS could not have been registered by an applicant that intended to dispar- age Asians—it would have introduced into the statute the very 14 In any event, Section 1052(a) does not penalize pri- vate speech. This Court has repeatedly recognized the critical constitutional distinction between penaliz- ing speech and refusing to support it. The govern- ment may not prohibit or penalize respondent’s racial slurs except in the most compelling circumstances. As explained below, however, the government may de- cline to use its resources to support such speech. B. Section 1052(a) Establishes Lawful Eligibility Crite- ria For Federal Trademark Registration 1. While Congress cannot prohibit the use of dis- paraging terms to express ideas, the government has no obligation to support such speech. The Court has squarely “reject[ed] the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.” Regan v. Taxation With Representation of Wash., 461 U.S. 540, 546 (1983) (internal quotation marks omitted). This Court has also consistently recognized that the government may “selectively fund a program to encourage certain activities it believes to be in the public interest, with- out at the same time funding an alternative program which seeks to deal with the problem in another way.” Rust v. Sullivan, 500 U.S. 173, 193 (1991). “In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.” Ibid. The Court has recognized in a variety of contexts that the government may take into account the con- tent of speech in deciding whether to assist would-be private speakers. See, e.g., Walker v. Texas Div., viewpoint discrimination that the First Amendment generally discountenances. 15 Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245-2250 (2015) (State may refuse to issue license plate with confederate-flag logo); National Endow- ment for the Arts v. Finley, 524 U.S. 569, 572, 587-588 (1998) (National Endowment for the Arts may take into account “decency and respect for the diverse beliefs and values of the American public” in distrib- uting federal grants to artists) (citation omitted); Rust, 500 U.S. at 192-193 (upholding regulations that limited ability of recipients of Title X funding to en- gage in abortion-related activities); Regan, 461 U.S. at 545-546 (upholding statute granting tax-exempt status to organizations that do not engage in lobbying). Although the doctrinal labels vary, those decisions share a common thread: First Amendment scrutiny is significantly more relaxed when the government es- tablishes eligibility criteria for a voluntary govern- ment program than when it restricts wholly private speech. Uncertainty as to which doctrinal “box” this case falls into is much less important than the fact that, although Section 1052(a) disentitles respondent to certain forms of government assistance, it does not restrict respondent’s ability to use THE SLANTS, or to engage in any other communication about the band, Asian stereotypes, or anything else. 2. The Constitution does not require Congress to open the federal trademark-registration system to racial epithets. Having decided to create a federal trademark-registration system, Congress may set the criteria for participation in that program. A federal registrant receives a certificate of registration “issued in the name of the United States of America, under the seal of the [PTO].” 15 U.S.C. 1057(a). Registered trademarks are published in the Official Gazette of 16 the PTO and recorded on the agency’s Principal Reg- ister (or, in certain circumstances, on a Supplemental Register). See ibid. (Principal Register); 15 U.S.C. 1091 (Supplemental Register). Congress legitimately determined that a federal agency should not use government funds to issue certificates “in the name of the United States of America” conferring statutory benefits for use of racial slurs and other disparaging terms. Just as the Constitution does not require a State to issue confed- erate-flag license plates, it does not require Congress to underwrite the commercial use of racist, misogy- nist, or bigoted terms and imagery in commerce. See Walker, 135 S. Ct. at 2245, 2252-2253. Although re- spondent has a First Amendment right to use THE SLANTS in marketing his band, he has no comparable right to force the government to register racial epi- thets, publish those epithets in the PTO’s Official Gazette, issue registration certificates for those epi- thets in the name of the United States, and inscribe those epithets on the PTO’s Principal Register. 3. The court of appeals erred in deeming this Court’s government-subsidy decisions inapplicable. a. The court of appeals viewed Section 1052(a)’s disparagement provision as imposing an unconstitu- tional condition on private speech. App., infra, 28a- 31a. That characterization is mistaken. A limitation on the receipt of public benefits constitutes a poten- tially unconstitutional condition only when “the Gov- ernment has placed a condition on the recipient of the subsidy rather than on a particular program or ser- vice, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program.” Rust, 500 U.S. at 197 17 (emphasis omitted). That doctrine would apply, for example, if the Lanham Act denied the benefits of trademark registration to persons who had engaged in specified speech or conduct outside the registration program (e.g., if respondent’s use of THE SLANTS as a mark in commerce rendered him ineligible to regis- ter other marks). Section 1052(a) does not operate in that manner. Rather, under Section 1052(a), the reg- istrability of a particular trademark depends solely on the specific mark sought to be registered, not on the applicant’s other activities. The unconstitutional- conditions doctrine therefore is inapplicable. See App., infra, 95a-96a (Dyk, J., concurring in part and dissenting in part). b. The court of appeals’ other reasons for treating Section 1052(a) as an affirmative restriction on speech likewise do not withstand scrutiny. The court stated that registration of a trademark is not government speech because the government is not embracing the message conveyed by the mark. App., infra, 40a-47a. But when the PTO approves a particular trademark for federal registration, the agency must record the mark on a government platform “for the express pur- pose that it be observed and read by the public.” Wooley v. Maynard, 430 U.S. 705, 713 (1977). In Wooley, the Court recognized “an individual’s First Amendment right to avoid becoming the courier for” a message he finds objectionable, id. at 717, even in circumstances where the message is unlikely to be attributed to the individual himself, see id. at 720-721 (Rehnquist, J., dissenting). The government has an analogous interest in declining to incorporate racially offensive epithets into various official communications. See Walker, 135 S. Ct. at 2248-2250. In any event, the 18 principle that the government has broad authority to decide what speech to assist has frequently been ap- plied to private speech whose message could not rea- sonably be attributed to the government. See, e.g., Finley, 524 U.S. at 587-588 (“Congress has wide lati- tude to set spending priorities.”); Rust, 500 U.S. at 200 (citing the “general rule” that “the Government may choose not to subsidize speech”). The court of appeals concluded that Section 1052(a)’s disparagement provision is not a limit on a government subsidy, App., infra, 47a-61a, but that conclusion was based on the court’s erroneous view that the unconstitutional-conditions doctrine applied. See pp. 16-17, supra. The court also suggested that the registration program cannot be viewed as a gov- ernment subsidy because it is funded by registration fees. App., infra, 57a-58a. But the Court has upheld government programs with similar funding mecha- nisms, explaining that receipt of fees does not change the nature of the government program. See Walker, 135 S. Ct. at 2252 (“[I]f the city in [Pleasant Grove City v. Summum, 555 U.S. 460 (2009),] had estab- lished a rule that organizations wishing to donate monuments must also pay fees to assist in park maintenance, we do not believe that the result in that case would have been any different.”). And respond- ent’s application to register his mark presumably reflects his determination that the benefits of regis- tration outweigh the costs involved. The court of appeals opined that Section 1052(a)’s exclusion of disparaging marks could have the “chilling effect” of discouraging the use of those marks in commerce. App., infra, at 47a-48a, 52a. But the First Amendment does not bar Congress from 19 using the resources of the federal government to en- courage some forms of expressive conduct rather than others. A marginal shift in incentives “is commonly the effect of the denial of subsidies,” but that “does not turn a subsidy provision into a regulatory provi- sion, so long as the subsidy is not designed to limit speech outside of the subsidized program.” Id. at 95a (Dyk, J., concurring in part and dissenting in part). The commercial nature of trademarks further reduces any concerns about chill. See Bates v. State Bar, 433 U.S. 350, 381 (1977) (explaining that, because com- mercial speech is “linked to commercial well-being, it seems unlikely that such speech is particularly sus- ceptible” to incidental chill). The court of appeals also stated that, “[u]nder the logic of the government’s approach, * * * Con- gress could pass a law prohibiting the copyrighting of works containing ‘racial slurs,’ ‘religious insults,’ ‘eth- nic caricatures,’ and ‘misogynistic images.’ ” App., infra, 60a. That reasoning reflects a misunderstand- ing of the government’s legal theory. The govern- ment’s core argument in this case—i.e., that the gov- ernment has much greater latitude under the First Amendment when it merely refuses to support private speech rather than affirmatively bans it—does logical- ly imply that limits on copyright registrability are subject to less demanding First Amendment scrutiny than actual bans on dissemination of creative works. The argument does not logically suggest, however, that such limits are wholly exempt from First Amendment challenge. Cf. Rust, 500 U.S. at 199 (ex- plaining that government funding is not “invariably sufficient to justify Government control over the con- tent of expression”). Nor does it suggest that the 20 First Amendment analysis must be identical in the trademark and copyright contexts. To the extent that the hypothetical statute described by the Federal Circuit would more greatly burden expression than does the denial of trademark registration (e.g., be- cause of differences between trademarks and copy- rights, or because the hypothetical law would deny registration to the entire work based on isolated words within the work), the First Amendment inquiry in the hypothetical copyright-registration scenario could account for that greater burden. 4. The court of appeals made two other important errors. First, the court failed to recognize that the trademark-registration program operates exclusively in the sphere of commercial speech. See San Francis- co Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 535 (1987). This case involves a dispute not about purely political speech, but about use of a mark to identify goods and services in com- merce. If Section 1052(a) actually restricted speech (for example, if it precluded certain terms or symbols from being used as names of businesses, products, or services), the standards set out in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 566 (1980), would apply. That form of intermediate scrutiny would be appropriate for such a restriction because “[t]he marketplace of ideas differs dramatically from the marketplace of goods and ser- vices.” App., infra, 116a (Reyna, J., dissenting). As explained above, Section 1052(a) does not pro- hibit or restrict speech at all, but instead establishes eligibility criteria for a particular form of federal assistance. But just as restrictions on commercial speech are subject to less demanding First Amend- 21 ment scrutiny than other speech restrictions, the fact that the advantages conferred by federal trademark registration are economic in nature provides a further reason to uphold the viewpoint-neutral eligibility criteria at issue here. The court of appeals therefore seriously erred in subjecting Section 1052(a) to strict scrutiny and deeming it “presumptively invalid.” App., infra, 27a. Second, the court of appeals erred in concluding that the government has no substantial interest in prohibiting the registration of disparaging trade- marks. The government has a substantial interest in creating a federal trademark-registration program to facilitate the efficient conduct of interstate commerce by offering additional benefits to qualifying marks. Having created such a program, the government also has an interest in declining to use its resources to encourage offensive or disparaging marks. See App., infra, 81a (Dyk, J., concurring in part and dissenting in part) (Section 1052(a) “protect[s] underrepresented groups in our society from being bombarded with demeaning messages in commercial advertising.”); id. at 117a (Reyna, J., dissenting) (“Commerce does not benefit from political volatility, nor from insults, dis- crimination, or bigotry.”). Although registration of a trademark does not sig- nal government endorsement of any particular prod- uct, service, mark, name, or registrant, the govern- ment’s registration of a disparaging term as a trade- mark, and publication of that mark on the Principal Register, would convey to the public that the United States regards racial slurs as appropriate source iden- 22 tifiers in commerce.7 Congress could also reasonably conclude that commercial actors are more likely to choose marks for which the advantages of federal registration are available, and it could reasonably decline to provide this incentive to use of racial epi- thets and other disparaging marks. Those govern- ment interests are fully sufficient to justify Section 1052(a)’s exclusion of such marks from the federal trademark-registration program. III. THE QUESTION PRESENTED IS IMPORTANT The challenged provision is a longstanding and im- portant part of the federal trademark-registration system. Congress has prohibited registration of cer- tain categories of trademarks since the registration system was created in 1905. See Act of Feb. 20, 1905, ch. 592, § 5, 33 Stat. 725. The prohibition on disparag- ing marks has been in place since 1946. See Act of July 5, 1946, ch. 540, § 2(a), 60 Stat. 428 (Lanham Act). The PTO has repeatedly applied these provi- sions to refuse registration of disparaging marks. See App., infra, 7a-8a (listing a variety of disparaging marks that the PTO has refused to register). The court below nevertheless invalidated Section 1052(a)’s disparagement provision on its face, so that it cannot be used in any circumstances, even to prohibit regis- tration of the most vile racial epithets. 7 That is especially true because owners of registered marks may ask the PTO to transmit their applications to international bodies for recognition. See 15 U.S.C. 1141a, 1141b (Madrid Proto- col); Paris Convention for the Protection of Industrial Property art. 6quinquies, July 14, 1967, 21 U.S.T. 1583, 828 U.N.T.S. 305 (providing for transmittal of certificates of registration to other countries). 23 The court of appeals’ decision effectively precludes the PTO from enforcing Section 1052(a)’s disparage- ment provision against any trademark-registration applicant nationwide. By statute, any applicant who is refused trademark registration may seek review of the PTO’s decision in the Federal Circuit. See 15 U.S.C. 1071(a); 28 U.S.C. 1295(a)(4)(B). Pending the Court’s disposition of this petition, the PTO there- fore has suspended action on trademark applications that would be refused under the disparagement provi- sion of Section 1052(a). See U.S. Patent and Trade- mark Office, Exam Guide 01-16: Examination for Compliance with Section 2(a)’s Scandalousness and Disparagement Provisions While Constitutionality Remains in Question 1 (Mar. 2016), http://www. uspto.gov/trademark/guides-and-manuals/trademark- examination-guides. Accordingly, this Court should review the question presented now.8 The court of appeals’ decision also casts doubt on the validity of other provisions of Section 1052(a) not at issue in this case, such as the bar against registra- tion of “immoral * * * or scandalous matter.” 15 U.S.C. 1052(a). The court acknowledged that, under 8 The question presented here also is presented in a pending case in the Fourth Circuit, Pro-Football, Inc. v. Blackhorse, No. 15-1874, which concerns the cancellation of registrations for marks that contain the term “Redskins” used by the Washington football team. That case has been briefed and is awaiting oral argument. Because that case involves other statutory and evidentiary chal- lenges to the agency’s decision, the court of appeals may decide the case without reaching the constitutional question. And in the meantime, the Federal Circuit’s decision prevents the PTO from refusing registrations based on Section 1052(a)’s disparagement provision. This Court therefore should not await a decision in the Fourth Circuit case. 24 its First Amendment theory, “other portions of § 2 may constitute government regulation of expression based on message, such as the exclusions of immoral or scandalous marks.” App., infra, 7a n.1; see id. at 82a (Dyk, J., concurring in part and dissenting in part) (expressing concern that the “majority’s opinion * * * may also effectively invalidate the bar on scandalous marks”). In addition, by subjecting eligi- bility criteria established by Congress for participa- tion in a voluntary federal program to the same strict First Amendment scrutiny that would apply to affirm- ative restrictions on the use of disparaging terms, the court of appeals blurred the line between statutory restrictions on speech and Congress’s refusal to sup- port or subsidize private communications. The poten- tial implications of the court’s decision for other gov- ernment support programs provide a further reason for this Court’s review. 25 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. DONALD B. VERRILLI, JR. Solicitor General BENJAMIN C. MIZER Principal Deputy Assistant Attorney General MALCOLM L. STEWART SARAH HARRIS Deputy Solicitor General General Counsel NICOLE A. SAHARSKY THOMAS W. KRAUSE Assistant to the Solicitor Acting Solicitor General CHRISTINA J. HIEBER DOUGLAS N. LETTER THOMAS L. CASAGRANDE MARK R. FREEMAN MARY BETH WALKER DANIEL TENNY Associate Solicitors JOSHUA M. SALZMAN U.S. Patent and Trademark MOLLY R. SILFEN Office Attorneys APRIL 2016 APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 2014-1203 IN RE SIMON SHIAO TAM Dec. 22, 2015 As Corrected Feb. 11, 2016 Before: PROST, Chief Judge, NEWMAN, LOURIE, DYK, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES, and STOLL, Circuit Judges. Opinion for the court filed by Circuit Judge MOORE, in which Chief Judge PROST and Circuit Judges NEWMAN, O’MALLEY, WALLACH, TARANTO, CHEN, HUGHES, and STOLL join. Concurring opinion filed by Circuit Judge O’MAL- LEY, in which Circuit Judge WALLACH joins. Opinion concurring in part and dissenting in part filed by Circuit Judge DYK, in which Circuit Judges LOURIE and REYNA join with respect to parts I, II, III, and IV. Dissenting opinion filed by Circuit Judge LOURIE. Dissenting opinion filed by Circuit Judge REYNA. (1a) 2a MOORE, Circuit Judge. Section 2(a) of the Lanham Act bars the Patent and Trademark Office (“PTO”) from registering scan- dalous, immoral, or disparaging marks. 15 U.S.C. § 1052(a). The government enacted this law—and de- fends it today—because it disapproves of the messages conveyed by disparaging marks. It is a bedrock prin- ciple underlying the First Amendment that the gov- ernment may not penalize private speech merely because it disapproves of the message it conveys. That principle governs even when the government’s message-discriminatory penalty is less than a prohibi- tion. Courts have been slow to appreciate the expressive power of trademarks. Words—even a single word— can be powerful. Mr. Simon Shiao Tam named his band THE SLANTS to make a statement about racial and cultural issues in this country. With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech. Another rejected mark, STOP THE ISLAMISATION OF AMERICA, proclaims that Islamisation is unde- sirable and should be stopped. Many of the marks re- jected as disparaging convey hurtful speech that harms members of oft-stigmatized communities. But the First Amendment protects even hurtful speech. The government cannot refuse to register dispar- aging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regu- lation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for 3a government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional. Because the government has of- fered no legitimate interests justifying § 2(a), we con- clude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regula- tion of the commercial aspects of speech. We there- fore vacate the Trademark Trial and Appeal Board’s (“Board”) holding that Mr. Tam’s mark is unregis- trable, and remand this case to the Board for further proceedings. BACKGROUND I. The Lanham Act Congress enacted the Lanham Act in 1946 to pro- vide a national system for registering and protecting trademarks used in interstate and foreign commerce. Congress’s purpose in enacting the Lanham Act was to advance the two related goals of trademark law. First, the purpose of the Lanham Act is to “protect the public so it may be confident that, in purchasing a product bearing a particular trade-mark which it fa- vorably knows, it will get the product which it asks for and wants to get.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 782 n.15, 112 S. Ct. 2753, 120 L. Ed. 2d 615 (1992) (Stevens, J., concurring) (quoting S. Rep. No. 791333, at 3 (1946)). Second, the Lanham Act ensures that a markholder can protect “his investment from . . . misappropriation by pirates and cheats.” Id.; see also Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 854 n.14, 102 S. Ct. 2182, 72 L. Ed. 2d 606 (1982) (“By applying a trademark to goods produced by one other than the trademark’s owner, the infringer deprives the owner of the goodwill 4a which he spent energy, time, and money to obtain. At the same time, the infringer deprives consumers of their ability to distinguish among the goods of com- peting manufacturers.” (citations omitted)). “Registration is significant. The Lanham Act confers important legal rights and benefits on trade- mark owners who register their marks.” B & B Hardware, Inc. v. Hargis Ind., Inc., — U.S. —, 135 S. Ct. 1293, 1300, 191 L. Ed. 2d 222 (2015) (quotation marks omitted). These benefits—unavailable in the absence of federal registration—are numerous, and include both substantive and procedural rights. The holder of a federal trademark has a right to exclusive nationwide use of that mark where there was no prior use by others. See 15 U.S.C. §§ 1072, 1115. Because the common law grants a markholder the right to exclusive use only in the geographic areas where he has actually used his mark, see 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 26:32 (4th ed.) (hereinafter “McCarthy”), holders of a federally registered trademark have an important substantive right they could not otherwise obtain. Also, a registered mark is presumed to be valid, 15 U.S.C. § 1057(b), and the mark becomes incontestable (with certain exceptions) after five years of consecutive post- registration use, id. § 1065; see also B & B Hardware, 135 S. Ct. at 1310 (“Incontestability is a powerful protection.”). A markholder may sue in federal court to enforce his trademark, 15 U.S.C. § 1121, and he may recover treble damages if he can show infringement was willful, id. § 1117. He may also obtain the assistance of U.S. Customs and Border Protection in restricting importation of infringing or counterfeit goods, id. § 1124, 19 U.S.C. § 1526, and 5a qualify for a simplified process for obtaining recogni- tion and protection of his mark in countries that have signed the Paris Convention, see id. § 1141b (Madrid Protocol); Paris Convention for the Protection of In- dustrial Property art. 6 quinquies, July 14, 1967, 21 U.S.T. 1583, 828 U.N.T.S. 305. Lastly, registration operates as a complete defense to state or common law claims of trademark dilution. 15 U.S.C. § 1125(c)(6). Under the Lanham Act, the PTO must register source-identifying trademarks unless the mark falls into one of several categories of marks precluded from registration. Id. § 1052 (“No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless . . . . ” (emphasis added)). Many of these categories bar the registration of deceptive or mis- leading speech, because such speech actually under- mines the interests served by trademark protection and, thus, the Lanham Act’s purposes in providing for registration. For example, a mark may not be regis- tered if it resembles a registered mark such that its use is likely to “cause confusion, or to cause mistake, or to deceive,” § 2(d), or if it is “deceptively misde- scriptive,” § 2(e). These restrictions on registration of deceptive speech do not run afoul of the First Amendment. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 563, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980) (“The government may ban forms of communication more likely to deceive the public than to inform it.”); see also Friedman v. Rog- ers, 440 U.S. 1, 13, 15-16, 99 S. Ct. 887, 59 L. Ed. 2d 100 (1979); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 462-63, 98 S. Ct. 1912, 56 L. Ed. 2d 444 (1978). 6a Section 2(a), however, is a hodgepodge of restric- tions. Among them is the bar on registration of a mark that “[c]onsists of or comprises immoral, decep- tive, or scandalous matter; or matter which may dis- parage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national sym- bols, or bring them into contempt or disrepute.” Sec- tion 2(a) contains proscriptions against deceptive speech, for example, the prohibition on deceptive mat- ter or the prohibition on falsely suggesting a connec- tion with a person or institution. But other restric- tions in § 2(a) differ in that they are based on the ex- pressive nature of the content, such as the ban on marks that may disparage persons or are scandalous or immoral. These latter restrictions cannot be justi- fied on the basis that they further the Lanham Act’s purpose in preventing consumers from being deceived. These exclusions from registration do not rest on any judgment that the mark is deceptive or likely to cause consumer confusion, nor do they protect the mark- holder’s investment in his mark. They deny the pro- tections of registration for reasons quite separate from any ability of the mark to serve the consumer and in- vestment interests underlying trademark protection. In fact, § 2(a)’s exclusions can undermine those inter- ests because they can even be employed in cancellation proceedings challenging a mark many years after its issuance and after the markholder has invested mil- lions of dollars protecting its brand identity and con- sumers have come to rely on the mark as a brand iden- tifier. 7a This case involves the disparagement provision of § 2(a).1 Section 2(a)’s ban on the federal registration of “immoral” or “scandalous” marks originated in the trademark legislation of 1905. See Act of Feb. 20, 1905, ch. 592, § 5(a), 33 Stat. 724, 725. The provision barring registration based on disparagement first appeared in the Lanham Act in 1946. Pub. L. 79-489, § 2(a), 60 Stat. 427, 428 (codified at 15 U.S.C. § 1052(a)). It had no roots in the earlier trademark statute or the common law. There were few marks rejected under the disparagement provision following enactment of the Lanham Act. Only in the last sev- eral decades has the disparagement provision become a more frequent ground of rejection or cancellation of trademarks. Marks that the PTO has found to be dis- paraging include: REDSKINS, Pro-Football, Inc. v. Blackhorse, No. 1-14-CV-01043-GBL, — F. Supp. 3d —, 2015 WL 4096277 (E.D. Va. July 8, 2015) (2014 PTO cancellation determination currently on appeal in Fourth Circuit); STOP THE ISLAMISATION OF AMERICA, In re Geller, 751 F.3d 1355 (Fed. Cir. 2014); THE CHRISTIAN PROSTITUTE (2013); AMISHHOMO (2013); MORMON WHISKEY (2012); KHORAN for wine, In re Lebanese Arak Corp., 94 1 We limit our holding in this case to the constitutionality of the § 2(a) disparagement provision. Recognizing, however, that other portions of § 2 may likewise constitute government regulation of expression based on message, such as the exclusions of immoral or scandalous marks, we leave to future panels the consideration of the § 2 provisions other than the disparagement provision at issue here. To be clear, we overrule In re McGinley, 660 F.2d 481 (C.C.P.A. 1981), and other precedent insofar as they could be ar- gued to prevent a future panel from considering the constitutional- ity of other portions of § 2 in light of the present decision. 8a U.S.P.Q. 2d 1215 (T.T.A.B. Mar. 4, 2010); HAVE YOU HEARD THAT SATAN IS A REPUBLICAN? (2010); RIDE HARD RETARD (2009); ABORT THE RE- PUBLICANS (2009); HEEB, In re Heeb Media, LLC, 89 U.S.P.Q. 2d 1071 (T.T.A.B. Nov. 26, 2008); SEX ROD, Bos. Red Sox Baseball Club L.P. v. Sherman, 88 U.S.P.Q. 2d 1581 (T.T.A.B. Sept. 9, 2008) (sustaining an opposition on multiple grounds, including dispar- agement); MARRIAGE IS FOR FAGS (2008); DEM- OCRATS SHOULDN’T BREED (2007); REPUBLI- CANS SHOULDN’T BREED (2007); 2 DYKE MIN- IMUM (2007); WET BAC/WET B.A.C. (2007); UR- BAN INJUN (2007); SQUAW VALLEY, In re Squaw Valley Dev. Co., 80 U.S.P.Q. 2d 1264 (T.T.A.B. June 2, 2006); DON’T BE A WET BACK (2006); FAGDOG (2003); N.I.G.G.A. NATURALLY INTELLIGENT GOD GIFTED AFRICANS (1996); a mark depicting a defecating dog, Greyhound Corp. v. Both Worlds, Inc., 6 U.S.P.Q. 2d 1635 (T.T.A.B. Mar. 30, 1988) (found to disparage Greyhound’s trademarked running dog logo); an image consisting of the national symbol of the Soviet Union with an “X” over it, In re Anti- Communist World Freedom Cong., Inc., 161 U.S.P.Q. 304 (T.T.A.B. Feb. 24, 1969); DOUGH-BOY for “a prophylactic preparation for the prevention of venere- al diseases,” Doughboy Indus., Inc. v. Reese Chem. Co., 88 U.S.P.Q. 227 (T.T.A.B. Jan. 25, 1951). A disparaging mark is a mark which “dishonors by comparison with what is inferior, slights, deprecates, degrades, or affects or injures by unjust comparison.” Geller, 751 F.3d at 1358 (alterations omitted). To de- termine if a mark is disparaging under § 2(a), a trade- mark examiner of the PTO considers: 9a (1) What is 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; and (2) If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a sub- stantial composite of the referenced group. Trademark Manual of Exam. Proc. (“TMEP”) § 1203.03(b)(i) (Jan. 2015 ed.) (citing Geller, 751 F.3d at 1358). If the examiner “make[s] a prima facie showing that a substantial composite, although not necessarily a majority, of the referenced group would find the proposed mark, as used on or in connection with the relevant goods or services, to be disparaging in the context of contemporary attitudes,” the burden shifts to the applicant for rebuttal. Id. If the appli- cant fails to rebut the prima facie case of disparage- ment, the examiner refuses to register the mark. The Trademark Manual of Examining Procedure does not require an examiner who finds a mark disparaging to consult her supervisor or take any further steps to ensure the provision is applied fairly and consistently across the agency. Compare TMEP § 1203.03 (no dis- cussion of action to take if examiner finds mark dis- paraging), with TMEP § 1203.01 (requiring examiner who finds a mark scandalous or immoral to consult his supervisor). A single examiner, with no input from her supervisor, can reject a mark as disparaging by 10a determining that it would be disparaging to a substan- tial composite of the referenced group. II. Facts of This Case Mr. Tam is the “front man” for the Asian-American dance-rock band The Slants. Mr. Tam named his band The Slants to “reclaim” and “take ownership” of Asian stereotypes. J.A. 129-30. The band draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes, J.A. 130, and its albums include “The Yellow Album” and “Slanted Eyes, Slanted Hearts.” The band “feel[s] strongly that Asians should be proud of their cultural heri[ta]ge, and not be offended by stereotypical descriptions.” J.A. 52. With their lyrics, performances, and band name, Mr. Tam and his band weigh in on cultural and political discussions about race and society that are within the heartland of speech protected by the First Amend- ment. On November 14, 2011, Mr. Tam filed the instant application (App. No. 85/472,044) seeking to register the mark THE SLANTS for “Entertainment in the nature of live performances by a musical band,” based on his use of the mark since 2006.2 The examiner re- fused to register Mr. Tam’s mark, finding it likely dis- paraging to “persons of Asian descent” under § 2(a). The examiner found that the mark likely referred to 2 This is Mr. Tam’s second application for the mark THE SLANTS. In 2010, Mr. Tam filed App. No. 77/952,263 seeking to register the mark for “Entertainment, namely, live performances by a musical band.” The examiner found the mark disparaging to people of Asian descent under § 2(a) and therefore refused to regis- ter it. Mr. Tam appealed that refusal to the Board, but the case was dismissed for failure to file a brief. 11a people of Asian descent in a disparaging way, explain- ing that the term “slants” had “a long history of being used to deride and mock a physical feature” of people of Asian descent. J.A. 42. And even though Mr. Tam may have chosen the mark to “reappropriate the disparaging term,” the examiner found that a substan- tial composite of persons of Asian descent would find the term offensive. J.A. 43. The Board affirmed the examiner’s refusal to reg- ister the mark. The Board wrote that “it is abun- dantly clear from the record not only that THE SLANTS . . . would have the ‘likely meaning’ of people of Asian descent but also that such meaning has been so perceived and has prompted significant re- sponses by prospective attendees or hosts of the band’s performances.” In re Tam, No. 85472044, 2013 WL 5498164, at *5 (T.T.A.B. Sept. 26, 2013) (“Board Opinion”). To support its finding that the mark likely referred to people of Asian descent, the Board pointed to dictionary definitions, the band’s website, which displayed the mark next to “a depiction of an Asian woman, utilizing rising sun imagery and using a stylized dragon image,” and a statement by Mr. Tam that he selected the mark in order to “own” the stereotype it represents. Id. The Board also found that the mark is disparaging to a substantial component of people of Asian descent because “[t]he dictionary definitions, reference works and all other evidence unanimously categorize the word ‘slant,’ when meaning a person of Asian descent, as disparag- ing,” and because there was record evidence of indi- viduals and groups in the Asian community objecting to Mr. Tam’s use of the word. Id. at *7. The Board 12a therefore disqualified the mark for registration under § 2(a). Mr. Tam appealed, arguing that the Board erred in finding the mark disparaging and that § 2(a) is uncon- stitutional. On appeal, a panel of this Court affirmed the Board determination that the mark is disparaging.3 In re Tam, 785 F.3d 567, 570-71 (Fed. Cir. 2015) (“Panel Opinion”), reh’g en banc granted, opinion vacated, 600 Fed. Appx. 775 (Fed. Cir. 2015) (“En Banc Order”). Although the term “slants” has sever- al meanings, the panel found that substantial evidence supported the Board’s finding that the mark likely refers to people of Asian descent. Panel Op. at 570-71. This included an article in which Mr. Tam described the genesis of the band’s name by explain- ing: “I was trying to think of things that people asso- ciate with Asians. Obviously, one of the first things people say is that we have slanted eyes. . . . ” Id. at 570 (quoting J.A. 130). Moreover, the band’s Wikipedia page stated that the band’s name is “derived from an ethnic slur for Asians.” Id. (quoting J.A. 57). The Wikipedia entry quoted Mr. Tam: “We want to take on these stereotypes that people have about us, like the slanted eyes, and own them. We’re very proud of being Asian—we’re not going to hide that fact. The reaction from the Asian community has been positive.” J.A. 57. The record included an image from the band’s website in which the mark THE SLANTS is set against Asian imagery. Id. (citing J.A. 59). Finally, the record included unrebutted evidence that both individuals and Asian groups have 3 We reinstate the panel’s holding that Mr. Tam’s mark is dis- paraging. 13a perceived the term as referring to people of Asian descent. Id. at 570-71 (citing, e.g., J.A. 95 (“[Mr. Tam] was initially slated to give the keynote address at the 2009 Asian American Youth Leadership Confer- ence in Portland. But some conference supporters and attendees felt the name of the band was offensive and racist, and out of respect for these opinions the conference organizers decided to choose someone less controversial.”)). The panel also found that substantial evidence supported the Board’s finding that the mark is dis- paraging to a substantial composite of people of Asian descent. Panel Op. at 571. It noted that the defini- tions in evidence universally characterize the word “slant” as disparaging, offensive, or an ethnic slur when used to refer to a person of Asian descent, in- cluding the dictionary definitions provided by Mr. Tam. Id. The record also included a brochure pub- lished by the Japanese American Citizens League describing the term “slant,” when used to refer to people of Asian descent, as a “derogatory term” that is “demeaning” and “cripple[s] the spirit.” Id. (quoting J.A. 48-49). Finally, the record included news articles and blog posts discussing the offensive nature of the band’s name. Id. (citing Board Op. at *2-3; J.A. 45, 51, 94-98, 100). Having found the mark disparaging under § 2(a), the panel held that binding precedent foreclosed Mr. Tam’s arguments that § 2(a) is unconstitutional, in- cluding Mr. Tam’s argument that § 2(a) violates the First Amendment on its face. Panel Op. at 572-73. As the panel explained, in McGinley, our predecessor court held that the refusal to register a mark under 14a § 2(a) does not bar the applicant from using the mark, and therefore does not implicate the First Amend- ment. Id. at 572 (citing In re McGinley, 660 F.2d 481, 484 (C.C.P.A. 1981)). The entirety of the McGinley analysis was: With respect to appellant’s First Amendment rights, it is clear that the PTO’s refusal to register appellant’s mark does not affect his right to use it. No conduct is proscribed, and no tangible form of expression is suppressed. Consequently, appel- lant’s First Amendment rights would not be abridged by the refusal to register his mark. 660 F.2d at 484 (citations omitted). In subsequent cases, panels of this Court relied on the holding in McGinley. See In re Fox, 702 F.3d 633, 635 (Fed. Cir. 2012); In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003); In re Mavety Media Grp., 33 F.3d 1367, 1374 (Fed. Cir. 1994). Additional views by the panel’s authoring judge questioned whether the en banc court should reconsider the constitutionality of § 2(a) en banc. Panel Op. at 573-85 (Moore, J., addi- tional views). More than thirty years have passed since the deci- sion in McGinley, and in that time both the McGinley decision and our reliance on it have been widely criti- cized.4 Id. at 573-74. Furthermore, the McGinley 4 See, e.g., Ritchie v. Simpson, 170 F.3d 1092, 1103 & n.1 (Fed. Cir. 1999) (Newman, J., dissenting); Pro-Football Inc. v. Harjo, No. 99-1385(CKK), 2000 WL 1923326, at *4 (D.D.C. Dec. 11, 2000); Stephen Baird, Moral Intervention in the Trademark Arena: Banning the Registration of Scandalous and Immoral Trade- marks, 83 TRADEMARK REPORTER 661, 685-86 (1993); Justin G. Blankenship, The Cancellation of Redskins as a Disparaging 15a analysis was cursory, without citation to legal authori- ty, and decided at a time when the First Amendment had only recently been applied to commercial speech. Id. at 574, 581 (citing Cent. Hudson, 447 U.S. at 566, 100 S. Ct. 2343). First Amendment jurisprudence on the unconstitutional conditions doctrine and the pro- tection accorded to commercial speech has evolved significantly since the McGinley decision. Id. at 574; see also id. at 574-580 (describing evolution of com- mercial speech doctrine and unconstitutional condi- tions doctrine). Trademark: Is Federal Trademark Law an Appropriate Solu- tion for Words That Offend?, 72 U. COLO. L. REV. 415, 443-44 (2001); Terence Dougherty, Group Rights to Cultural Survival: Intellectual Property Rights in Native American Cultural Sym- bols, 29 COLUM. HUM. RTS. L. REV. 355, 383 (1998); Bruce C. Kelber, ‘‘Scalping the Redskins:” Can Trademark Law Start Athletic Teams Bearing Native American Nicknames and Images on the Road to Racial Reform?, 17 HAMLINE L. REV. 533, 556 (1994); Paul Kuruk, Goading a Reluctant Dinosaur: Mutual Recognition Agreements as a Policy Response to the Misappro- priation of Foreign Traditional Knowledge in the United States, 34 PEPP. L. REV. 629, 662 n.209 (2007); Michelle B. Lee, Section 2(a) of the Lanham Act as a Restriction on Sports Team Names: Has Political Correctness Gone Too Far?, 4 SPORTS L.J. 65, 66-67 (1997); Jeffrey Lefstin, Does the First Amendment Bar Cancella- tion of Redskins?, 52 STAN. L. REV. 665, 676-77 (2000); Nell Jessup Newton, Memory and Misrepresentation: Representing Crazy Horse, 27 CONN. L. REV. 1003, 1030 n.109 (1995); Ron Phillips, A Case for Scandal and Immorality: Proposing Thin Protection of Controversial Trademarks, 17 U. BALT. INTELL. PROP. L.J. 55, 67-68 (2008); Jendi Reiter, Redskins and Scarlet Letters: Why “Immoral” and “Scandalous” Trademarks Should Be Federally Registrable, 6 FED. CIR. BAR. J. 191, 197 (1996); Lilit Voskanyan, The Trademark Principal Register as a Nonpub- lic Forum, 75 U. CHI. L. REV. 1295, 1302 (2008). 16a Other courts’ reliance on the reasoning in McGinley further reinforces the importance of taking this case en banc. Without analysis, the Fifth Circuit wrote that “[w]e join our sister circuit in rejecting [the ap- plicant’s] argument that prohibiting him from regis- tering a mark with the PTO violates his [F]irst [A]mendment rights.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 578 n.9 (5th Cir. 2005). And a district court in the Eastern District of Virginia relied upon McGinley when it concluded that the can- cellation of trademark registrations under § 2(a) did not implicate the First Amendment. Pro-Football, Inc., — F. Supp. 3d at —, 2015 WL 4096277, at *8-10 (“[T]he Court agrees with the Federal Circuit and Fifth Circuit and holds that Section 2(a) of the Lanham Act does not implicate the First Amendment.”). For these reasons, we sua sponte ordered rehearing en banc. We asked the parties to file briefs on the following issue: Does the bar on registration of disparaging marks in 15 U.S.C. § 1052(a) violate the First Amendment? En Banc Order at 775. In addition to the parties’ briefs, we received ten amicus briefs. We heard oral argument on October 2, 2015. DISCUSSION I. Section 2(a)’s Denial of Important Legal Rights to Private Speech Based on Disapproval of the Message Conveyed Is Subject to, and Cannot Survive, Strict Scrutiny Strict scrutiny is used to review any governmental regulation that burdens private speech based on dis- approval of the message conveyed. Section 2(a), 17a which denies important legal rights to private speech on that basis, is such a regulation. It is therefore subject to strict scrutiny. It is undisputed that it can- not survive strict scrutiny. A. The Disparagement Provision, Which Discrim- inates Based on Disapproval of the Message, Is Not Content or Viewpoint Neutral “Content-based regulations are presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992); see also Ash- croft v. ACLU, 542 U.S. 656, 660, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004). “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state inter- ests.” Reed v. Town of Gilbert, — U.S. —, 135 S. Ct. 2218, 2226, 192 L. Ed. 2d 236 (2015); see also Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972) (“[A]bove all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”). A regulation is content based even when its reach is defined simply by the topic (subject matter) of the covered speech. See Reed, 135 S. Ct. at 2230. Viewpoint-based regulations, targeting the sub- stance of the viewpoint expressed, are even more sus- pect. They are recognized as a particularly “egre- gious form of content discrimination,” id., though they have sometimes been discussed without being cleanly separated from topic discrimination, see, e.g., Mos- ley, 408 U.S. at 95, 92 S. Ct. 2286. Such measures 18a “raise[] the specter that the government may effec- tively drive certain ideas or viewpoints from the mar- ketplace.” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991); see also Sorrell v. IMS Health Inc., — U.S. —, 131 S. Ct. 2653, 2667, 180 L. Ed. 2d 544 (2011); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995). “The First Amendment re- quires heightened scrutiny whenever the government creates ‘a regulation of speech because of disagree- ment with the message it conveys.’ ” Sorrell, 131 S. Ct. at 2664 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989)). This is true whether the regulation bans or merely burdens speech. “[H]eightened judicial scru- tiny is warranted” when an act “is designed to impose a specific, content-based burden on protected expres- sion.” Id.; see also Rosenberger, 515 U.S. at 828, 115 S. Ct. 2510 (“[T]he government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expres- sion.”). “The distinction between laws burdening and laws banning speech is but a matter of degree. The Government’s content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000). “Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content.” Sorrell, 131 S. Ct. at 2664; see also infra at 1340. It is beyond dispute that § 2(a) discriminates on the basis of content in the sense that it “applies to partic- ular speech because of the topic discussed.” Reed, 19a 135 S. Ct. at 2227. Section 2(a) prevents the registra- tion of disparaging marks—it cannot reasonably be argued that this is not a content-based restriction or that it is a content-neutral regulation of speech. And the test for disparagement—whether a substantial composite of the referenced group would find the mark disparaging—makes clear that it is the nature of the message conveyed by the speech which is being regu- lated. If the mark is found disparaging by the refer- enced group, it is denied registration. “Listeners’ reaction to speech is not a content-neutral basis for regulation.” Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992). And § 2(a) does more than discriminate on the basis of topic. It also discriminates on the basis of message conveyed, “the idea or message expressed,” Reed, 135 S. Ct. at 2227; it targets “viewpoints [in] the market- place,” Simon & Schuster, 502 U.S. at 116, 112 S. Ct. 501. It does so as a matter of avowed and undeniable purpose, and it does so on its face.5 5 Both parties agree that this appeal is appropriately viewed as involving a facial challenge. A law is facially invalid if “a substan- tial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008) (internal quotation marks omitted). In other words, to succeed in his facial challenge, Mr. Tam must “demonstrate a substantial risk that application of the provision will lead to the suppression of speech.” Nat’l Endow- ment for the Arts v. Finley, 524 U.S. 569, 580, 118 S. Ct. 2168, 141 L. Ed. 2d 500 (1998). The marks refused registration under the disparagement provision are protected speech. And the govern- ment refused to register all of these marks because it found they 20a First, the government enacted and continues to de- fend § 2(a) “because of disagreement with the message [disparaging marks] convey[].” Sorrell, 131 S. Ct. at 2664. When the government refuses to register a mark under § 2(a), it does so because it disapproves of “the message a speaker conveys” by the mark. Reed, 135 S. Ct. at 2227. Underscoring its hostility to these messages, the government repeatedly asserts in its briefing before this court that it ought to be able to prevent the registration of “the most vile racial epi- thets and images,” Appellee’s En Banc Br. 1, and “to dissociate itself from speech it finds odious,” id. 41. The legislative history of § 2(a) reinforces this conclu- sion. See Hearings on H.R. 4744 Before the Sub- comm. on Trademarks of the House Comm. on Pa- tents, 76th Cong., 1st Sess. 18-21 (1939) (statement of Rep. Thomas E. Robertson) (Rep. Maroney) (“[W]e would not want to have Abraham Lincoln gin.”); id. (Rep. Rogers) (stating that a mark like “Abraham Lincoln gin ought not to be used,” and that § 2(a) “would take care of [such] abuses”). From its enact- ment in 1946 through its defense of the statute today, the government has argued that the prohibited marks convey a disparaging message. More than a “substantial number” of § 2(a)’s applications of the disparagement provision rest on disapproval of the expressive message conveyed—every rejection under the disparagement provision is a message-based denial of otherwise-available legal rights. Thus, we conclude that § 2(a) is invalid on its face. That conclusion follows from the standards for First Amendment facial invalidation and also fits the rationale for those standards: it avoids maintaining on the books a rule that called for case-by-case litigation over particular marks, based on speakers’ intent and government interests or other factors, which would threaten to produce the very chilling effect that First Amendment facial-invalidity standards condemn. 21a ought not to be registered because of the messages the marks convey. When the government discriminates against speech because it disapproves of the message conveyed by the speech, it discriminates on the basis of viewpoint. Sorrell, 131 S. Ct. at 2664. The legal significance of viewpoint discrimination is the same whether the government disapproves of the message or claims that some part of the populace will disapprove of the message. This point is recognized in the Supreme Court’s long-standing condemnation of government impositions on speech based on adverse reactions among the public. See, e.g., Snyder v. Phelps, 562 U.S. 443, 460-61, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011); R.A.V., 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305; Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). Second, the disparagement provision at issue is viewpoint discriminatory on its face. The PTO re- jects marks under § 2(a) when it finds the marks refer to a group in a negative way, but it permits the regis- tration of marks that refer to a group in a positive, non-disparaging manner. In this case the PTO re- fused to register Mr. Tam’s mark because it found the mark “disparaging” and “objectionable” to people of Asian descent. Tam, 2013 WL 5498164, at *6. But the PTO has registered marks that refer positively to people of Asian descent. See, e.g., CELEBRASIANS, ASIAN EFFICIENCY. Similarly, the PTO has pro- hibited the registration of marks that it found dispar- aged other groups. See, e.g., Pro-Football, — F. Supp. 3d —, 2015 WL 4096277 (affirming cancella- tion of REDSKINS); Geller, 751 F.3d 1355 (affirming rejection of STOP THE ISLAMISATION OF 22a AMERICA); Lebanese Arak Corp., 94 U.S.P.Q. 2d 1215 (refusing to register KHORAN for wine); Heeb Media, 89 U.S.P.Q. 2d 1071 (refusing to register HEEB); Squaw Valley Dev. Co., 80 U.S.P.Q. 2d 1264 (refusing to register SQUAW VALLEY for one class of goods, but registering it for another). Yet the government registers marks that refer to particular ethnic groups or religions in positive or neutral ways— for example, NAACP, THINK ISLAM, NEW MUS- LIM COOL, MORMON SAVINGS, JEWISHSTAR, and PROUD 2 B CATHOLIC. The government argues that § 2(a) is viewpoint neutral because it does not eliminate any particular view-point—only particular words. Appellee’s En Banc Br. 39-40. It argues that under § 2(a), two marks with diametrically opposed viewpoints will both be refused, so long as those marks use the same dis- paraging term. Id. 39-40. It points to Mr. Tam— who does not seek to express an anti-Asian viewpoint —as proof. It cites a statement in R.A.V. that a hy- pothetical statute that prohibited “odious racial epi- thets . . . to proponents of all views” would not be viewpoint discriminatory. Id. 40 (quoting 505 U.S. at 391, 112 S. Ct. 2538); see also Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 90-91 (1st Cir. 2004) (hold- ing that “guidelines prohibiting demeaning or dispar- aging ads are themselves viewpoint neutral”). The R.A.V. statement does not apply here. The government’s starting point—that it rejects marks conveying diametrically opposed viewpoints, if they contain the same offensive word—is incorrect. The PTO looks at what message the referenced group takes from the applicant’s mark in the context of the 23a applicant’s use, and it denies registration only if the message received is a negative one. Thus, an appli- cant can register a mark if he shows it is perceived by the referenced group in a positive way, even if the mark contains language that would be offensive in another context. For example, the PTO registered the mark DYKES ON BIKES, U.S. Reg. No. 3,323,803, after the applicant showed the term was often enough used with pride among the relevant pop- ulation. In Squaw Valley, the Board allowed the registration of the mark SQUAW VALLEY in connec- tion with one of the applied-for classes of goods (namely, skiing-related products), but not in connec- tion with a different class of goods. 80 U.S.P.Q. 2d at *22. Section 2(a) does not treat identical marks the same. A mark that is viewed by a substantial compo- site of the referenced group as disparaging is rejected. It is thus the viewpoint of the message conveyed which causes the government to burden the speech. This form of regulation cannot reasonably be argued to be content neutral or viewpoint neutral. The government’s argument also fails because de- nial of registration under § 2(a) turns on the refer- enced group’s perception of a mark. Speech that is offensive or hostile to a particular group conveys a distinct viewpoint from speech that carries a positive message about the group. STOP THE ISLAMISA- TION OF AMERICA and THINK ISLAM express two different viewpoints. Under § 2(a), one of these viewpoints garners the benefits of registration, and one does not. The government enacted § 2(a), and defends it today, because it is hostile to the messages conveyed by the refused marks. Section 2(a) is a viewpoint-discriminatory regulation of speech, created 24a and applied in order to stifle the use of certain disfa- vored messages. Strict scrutiny therefore governs its First Amendment assessment—and no argument has been made that the measure survives such scrutiny. B. The Disparagement Provision Regulates the Expressive Aspects of the Mark, Not Its Func- tion As Commercial Speech The government cannot escape strict scrutiny by arguing that § 2(a) regulates commercial speech. True, trademarks identify the source of a product or service, and therefore play a role in the “dissemination of information as to who is producing and selling what product, for what reason, and at what price.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 765, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976). But they very commonly do much more than that. And, critically, it is always a mark’s expressive character, not its ability to serve as a source identifier, that is the basis for the disparage- ment exclusion from registration. The disparage- ment provision must be assessed under First Amend- ment standards applicable to what it targets, which is not the commercial-speech function of the mark. This case exemplifies how marks often have an ex- pressive aspect over and above their commercial- speech aspect. Mr. Tam explicitly selected his mark to create a dialogue on controversial political and so- cial issues. With his band name, Mr. Tam makes a statement about racial and ethnic identity. He seeks to shift the meaning of, and thereby reclaim, an emo- tionally charged word. He advocates for social change and challenges perceptions of people of Asian descent. His band name pushes people. It offends. 25a Despite this—indeed, because of it—Mr. Tam’s band name is expressive speech. Importantly, every time the PTO refuses to register a mark under § 2(a), it does so because it believes the mark conveys an expressive message—a message that is disparaging to certain groups. STOP THE IS- LAMISATION OF AMERICA is expressive. In refusing to register the mark, the Board explained that the “mark’s admonition to ‘STOP’ Islamisation in America ‘sets a negative tone and signals that Islami- zation is undesirable and is something that must be brought to an end in America.’ ” Geller, 751 F.3d at 1361. And by finding HEEB and SQUAW VALLEY disparaging, the PTO necessarily did so based on its finding that the marks convey an expressive message over and above their function as source identifiers —namely, an expressive message disparaging Jewish and Native American people. It was these expressive messages that the government found objectionable, and that led the government to refuse to register or to cancel the marks. In doing so, the government made moral judgments based solely and indisputably on the marks’ expressive content. Every single time regis- tration is refused or cancelled pursuant to the dispar- agement provision, it is based upon a determination by the government that the expressive content of the message is unsuitable because it would be viewed by the referenced group as disparaging them. “Commercial speech is no exception” to the need for heightened scrutiny of content-based impositions seek- ing to curtail the communication of particular infor- mation or messages. Sorrell, 131 S. Ct. at 2664. In- deed, “[a] consumer’s concern for the free flow of com- 26a mercial speech often may be far keener than his con- cern for urgent political dialogue.” Id. (internal quotation marks omitted). Strict scrutiny must apply to a government regulation that is directed at the ex- pressive component of speech. That the speech is used in commerce or has a commercial component should not change the inquiry when the government regulation is entirely directed to the expressive com- ponent of the speech. This is not a government reg- ulation aimed at the commercial component of speech. See Va. State Bd. of Pharmacy, 425 U.S. at 765, 96 S. Ct. 1817 (commercial speech involves the “dissemi- nation of information as to who is producing and sell- ing what product, for what reason, and at what price”); see id. at 762, 96 S. Ct. 1817 (defining “commercial speech” as speech that does “no more than propose a commercial transaction”); Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 473-74, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993). In R.A.V., the Supreme Court explained the key point: under First Amendment law, government measures often affect speech that has a dual character, and when they do, which First Amendment standard is applicable depends on which aspect of the speech is targeted by the measure being reviewed. See 505 U.S. at 385, 112 S. Ct. 2538 (“The proposition that a particular instance of speech can be proscribable on the basis of one feature (e.g., obscenity) but not on the basis of another (e.g., opposition to the city govern- ment) is commonplace and has found application in many contexts.”). In particular, commercial speech that is “inextricably intertwined” with expressive 27a speech is treated as expressive speech under the First Amendment when the expressive aspect is being reg- ulated. Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 796, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988). Here, § 2(a) targets speech that is of “public concern,” because it “can be fairly considered as relating to any matter of political, social, or other concern to the community.” Snyder v. Phelps, 562 U.S. 443, 453, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011) (internal quota- tion marks omitted). It therefore “occupies the high- est rung of the hierarchy of First Amendment values, and is entitled to special protection.” Id. at 452, 131 S. Ct. 1207 (internal quotation marks omitted). Because § 2(a) discriminates on the basis of the content of the message conveyed by the speech, it follows that it is presumptively invalid, and must sat- isfy strict scrutiny to be found constitutional. “In the ordinary case it is all but dispositive to conclude that a law is content-based and, in practice, viewpoint- discriminatory.” Sorrell, 131 S. Ct. at 2667. The government here does not even argue that § 2(a) satis- fies strict scrutiny. II. Section 2(a) Is Not Saved From Strict Scrutiny Because It Bans No Speech or By Government- Speech or Government-Subsidy Doctrines Faced with the daunting prospect of defending a content- and viewpoint-discriminatory regulation of speech, the government argues that § 2(a) does not implicate the First Amendment at all. First, the gov- ernment suggests that § 2(a) is immune from First Amendment scrutiny because it prohibits no speech, but leaves Mr. Tam free to name his band as he wishes and use this name in commerce. Second, the govern- 28a ment suggests that trademark registration is govern- ment speech, and thus the government can grant and reject trademark registrations without implicating the First Amendment. Finally, the government argues that § 2(a) merely withholds a government subsidy for Mr. Tam’s speech and is valid as a permissible defini- tion of a government subsidy program. We reject each of the government’s arguments. A. Strict Scrutiny Applies to § 2(a), Which Sig- nificantly Chills Private Speech on Discrimi- natory Grounds, Though It Does Not Ban Speech The government argues that § 2(a) does not impli- cate the First Amendment because it does not prohibit any speech. Appellee’s En Banc Br. 17. The gov- ernment’s argument is essentially the same as that of our predecessor court in McGinley: “it is clear that the PTO’s refusal to register appellant’s mark does not affect his right to use it. No conduct is proscribed, and no tangible form of expression is suppressed.” 660 F.2d at 484 (citations omitted). But the First Amendment’s standards, including those broadly in- validating message discrimination, are not limited to such prohibitions. See Pitt News v. Pappert, 379 F.3d 96, 111-12 (3d Cir. 2004) (Alito, J.) (“The threat to the First Amendment arises from the imposition of finan- cial burdens that may have the effect of influencing or suppressing speech, and whether those burdens take the form of taxes or some other form is unimportant.”). The point has been recognized in various doctrinal settings. “For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms 29a would in effect be penalized and inhibited. This would allow the government to produce a result which it could not command directly.” Perry v. Sinder- mann, 408 U.S. 593, 597, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972) (internal quotation marks and alterations omitted). This premise—that denial of a benefit would chill exercise of the constitutional right— undergirds every unconstitutional conditions doctrine case, discussed infra. See, e.g., Speiser v. Randall, 357 U.S. 513, 518, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958) (“It is settled that speech can be effectively limited by the exercise of the taxing power. To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.” (citation omitted)); Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668, 674, 116 S. Ct. 2342, 135 L. Ed. 2d 843 (1996) (loss of a valuable benefit “in retaliation for speech may chill speech on matters of public con- cern”); Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545, 121 S. Ct. 1043, 149 L. Ed. 2d 63 (2001); Rosen- berger, 515 U.S. at 835, 115 S. Ct. 2510 (explaining that “[v]ital First Amendment speech principles are at stake here,” including danger arising “from the chill- ing of individual thought and expression”). The general principle is clear: “Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content.” Sorrell, 131 S. Ct. at 2664. “[T]he government’s ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace.” Simon & Schuster, 502 U.S. at 116, 112 S. Ct. 501. A law may burden speech even when it does so indirectly. In Sorrell, the challenged statute did not directly ban 30a speech, but rather forbade certain pharmaceutical marketing executives from obtaining and using infor- mation that could help them market their products more effectively. 131 S. Ct. at 2659-60. The Court found that the state “ha[d] burdened a form of pro- tected expression,” while leaving “unburdened those speakers whose messages are in accord with its own views.” Id. at 2672. Here, too, § 2(a) burdens some speakers and bene- fits others. And while it is true that a trademark owner may use its mark in commerce even without federal registration, it has been widely recognized that federal trademark registration bestows truly signifi- cant and financially valuable benefits upon markhold- ers. B & B Hardware, 135 S. Ct. at 1300; Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 199-200, 105 S. Ct. 658, 83 L. Ed. 2d 582 (1985) (valua- ble new rights were created by the Lanham Act); McCarthy at § 19:9, :11 (“Registration of a mark on the federal Principal Register confers a number of proce- dural and substantive legal advantages over reliance on common law rights. . . . Registration on the Principal Register should be attempted if it is at all possible.”); McCarthy at § 2:14 (“Businesspeople re- gard trademarks as valuable assets and are willing to pay large sums to buy or license a well-known mark.”); Lee Ann W. Lockridge, Abolishing State Trademark Registrations, 29 Cardozo Arts & Ent. L.J. 597, 605 (2011) (“[T]he incentives to pursue federal registration . . . are now so significant as to make federal registration indispensable for any owner making an informed decision about its trademark rights. A federal registration is the only rational choice.”); Su- san M. Richey, The Second Kind of Sin: Making the 31a Case for a Duty to Disclose Facts Related to Generi- cism and Functionality in the Trademark Office, 67 Wash. & Lee L. Rev. 137, 174 (2010) (“Federal regis- tration has evolved into a powerful tool for trademark holders. . . . ”); Patricia Kimball Fletcher, Joint Registration of Trademarks and the Economic Value of a Trademark System, 36 U. Miami L. Rev. 297, 298-99 (1982) (“Federal registration under the Lanham Act is advantageous, however, because it increases the owner’s legal rights in the mark, making the mark itself more valuable. Thus, trademark owners have significant legal and economic interests in obtaining federal registration of trademarks.”). Denial of these benefits creates a serious disincen- tive to adopt a mark which the government may deem offensive or disparaging. Br. of Amici Curiae ACLU 12 (“If a group fears that its chosen name will be de- nied federal trademark protection by the government’s invocation of Section 2(a), it will be less likely to adopt the name, at least in part because the associative value of the trademark itself is lessened when it is unlikely that a group will be the exclusive holder of that mark.”); Br. of Amicus Curiae Pro-Football, Inc. 15 (“Section 2(a) certainly works to chill speech. . . . Through it, the Government uses threatened denial of registration to encourage potential registrants not to use ‘disparaging’ names. Faced with the possibility of being denied a registration—or worse, cancellation after years of investment-backed brand development —new brand owners are more likely to avoid brand names that may be arguably controversial for fear of later being deemed ‘disparaging.’ ”); Br. of Amicus Curiae First Amendment Lawyers Ass’n 7 (“Individu- als and businesses refrain from using certain terms as 32a trademarks for fear the PTO might see the terms as immoral, scandalous, or derogatory, in violation of section 2(a). Such self-censorship narrows the spec- trum of speech in the public marketplace.”); Br. of Amici Curiae Rutherford Inst. 12 (“Denial of registra- tion indisputably has the effect of placing applicants at a legal and financial disadvantage.”); Jeffrey Lefstin, Does the First Amendment Bar Cancellation of Red- skins?, 52 Stan. L. Rev. 665, 678 (2000) (“[I]t is clear that section 2(a) of the Lanham Act, by denying the valuable registration right to scandalous or disparag- ing trademarks, imposes a financial disincentive to the use of such marks in commercial communication.”); Michelle B. Lee, Section 2(a) of the Lanham Act as a Restriction on Sports Team Names: Has Political Correctness Gone Too Far?, 4 Sports L.J. 65, 69 (1997) (“Use [of disparaging marks] is discouraged by can- cellation of registration by a loss of the benefits that go along with it. These benefits go well beyond those granted by the common law, and a loss of them will re- move advantages which make the property more val- uable.”). For those reasons, the § 2(a) bar on registration creates a strong disincentive to choose a “disparaging” mark. And that disincentive is not cabined to a clear- ly understandable range of expressions. The statute extends the uncertainty to marks that “may dispar- age.” 15 U.S.C. § 1052(a). The uncertainty as to what might be deemed disparaging is not only evident on its face, given the subjective-reaction element and shifting usages in different parts of society.6 It is 6 In 1939, the Assistant Commissioner of Patents testified during congressional hearings on the Lanham Act that “it is always going 33a confirmed by the record of PTO grants and denials over the years, from which the public would have a hard time drawing much reliable guidance.7 to be just a matter of the personal opinion of the individual parties as to whether they think it is disparaging.” See Hearings on H.R. 4744 Before the Subcomm. on Trademarks of the House Comm. on Patents, 76th Cong., 1st Sess. 18-21 (1939) (statement of Leslie Frazer, Assistant Comm’r of Patents) (Mr. Frazer). And further interpretation has helped little. The definition of a disparaging mark—a mark that “dishonors by comparison with what is inferior, slights, deprecates, degrades, or affects or injures by unjust com- parison”—provides little clarity. Geller, 751 F.3d at 1358 (altera- tions omitted). In In re In Over Our Heads, the PTO admitted that “[t]he guidelines for determining whether a mark is scandal- ous or disparaging are somewhat vague and the determination of whether a mark is scandalous or disparaging is necessarily a highly subjective one.” No. 755,278, 1990 WL 354546, at *1 (T.T.A.B. 1990) (alterations and quotation marks omitted). 7 The PTO’s record of trademark registrations and denials often appears arbitrary and is rife with inconsistency. The PTO denied the mark HAVE YOU HEARD SATAN IS A REPUBLICAN because it disparaged the Republican Party, App. Ser. No. 85/077647, but did not find the mark THE DEVIL IS A DEMO- CRAT disparaging, App. Ser. No. 85/525,066 (abandoned after publication for other reasons). The PTO registered the mark FAGDOG three times and refused it twice, at least once as dispar- aging. Compare Reg. Nos. 2,926,775; 2,828,396; and 3,174,475, with App. Ser. Nos. 76/454,927 and 75/950,535. The PTO refused to register the marks FAG FOREVER A GENIUS!, App. Ser. No. 86/089,512, and MARRIAGE IS FOR FAGS, App. Ser. No. 77/477,549, but allowed the mark F*A*G FABULOUS AND GAY, Reg. No. 2,997,761 (abandoned after publication for other reasons). And PTO examiners have registered DANGEROUS NEGRO, CELEBRETARDS, STINKY GRINGO, MIDGET-MAN, and OFF-WHITE TRASH—all marks that could be offensive to a sub- stantial composite of the referenced group. We see no rationale for the PTO’s seemingly arbitrary registration decisions, let alone one that would give applicants much guidance. 34a Such uncertainty of speech-affecting standards has long been recognized as a First Amendment problem, e.g., in the overbreadth doctrine. See Broadrick v. Oklahoma, 413 U.S. 601, 613, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). It has also been recognized as a problem under Fifth Amendment vagueness standards as they have been specially applied in the First Amendment setting.8 All we need say about the un- certainty here, however, is that it contributes signifi- cantly to the chilling effect on speech. The disincentive to choose a particular mark ex- tends to any mark that could require the expenditure of substantial resources in litigating to obtain regis- 8 A vague law that regulates speech on the basis of message “raises special First Amendment concerns because of its obvious chilling effect on free speech.” Reno v. ACLU, 521 U.S. 844, 871-72, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997). Thus, if a “law interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). The Supreme Court reiterated these principles just three years ago: Even when speech is not at issue, the void for vagueness doc- trine addresses at least two connected but discrete due pro- cess concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. See Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). When speech is involved, rig- orous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech. F.C.C. v. Fox Television Stations, Inc., — U.S. —, 132 S. Ct. 2307, 2317-18, 183 L. Ed. 2d 234 (2012). 35a tration in the first place. And the disincentive does not stop there, because the disparagement determina- tion is not a onetime matter. Even if an applicant obtains a registration initially, the mark may be chal- lenged in a cancellation proceeding years later. Thus, after years of investment in promoting a registered mark and coming to be known by it, a mark’s owner may have to (re)litigate its character under § 2(a) and might lose the registration. This effectively forces the mark’s owner to find a new mark and make sub- stantial new investments in educating the public that the products known by the old mark are now known by the new mark and, more generally, in establishing recognition of the new mark. The “disparagement” standard steers applicants away from choosing a mark that might result in these problems any time in the future. Not surprisingly, “those who are denied registra- tion under Section 2(a) often abandon the denied ap- plication and file a new one, indicating that they have changed their name rather than bear the costs of using a ‘disparaging’ mark or challenge the PTO’s determi- nation.” Br. of Amicus Curiae Pro-Football, Inc. 15. In many cases, as soon as a trademark examiner issues a rejection based upon disparagement, the applicant immediately abandons the trademark application. See, e.g., AMISHHOMO (abandoned 2013); MORMON WHISKEY (abandoned 2012); HAVE YOU HEARD THAT SATAN IS A REPUBLICAN? (abandoned 2010); DEMOCRATS SHOULDN’T BREED (aban- doned 2008); REPUBLICANS SHOULDN’T BREED (abandoned 2008); 2 DYKE MINIMUM (abandoned 2007); WET BAC/WET B.A.C. (abandoned 2007); 36a DON’T BE A WET BACK (abandoned 2006); FAGDOG (abandoned 2003). The importance of the benefits of federal trademark registration explains the strength of the incentive to avoid marks that are vulnerable under § 2(a). For example, the holder of a federally registered trade- mark has a right to exclusive nationwide use of that mark anywhere there is not already a prior use that proceeds registration. See 15 U.S.C. §§ 1072, 1115. In the absence of federal registration, if a trademark owner has any common law rights, they are “limited to the territory in which the mark is known and recog- nized by those in the defined group of potential cus- tomers.” McCarthy at § 26:2. Without the recogni- tion of nationwide constructive use conferred by fed- eral registration, a competitor can swoop in and adopt the same mark for the same goods in a different loca- tion. Without federal registration, the applicant does not have prima facie evidence of the mark’s validity or its ownership or exclusive use of the mark. 15 U.S.C. § 1057(b). And a common law trademark can never become incontestable. Id. § 1065. Without federal registration, a trademark user cannot stop importation of goods bearing the mark, or recover treble damages for willful infringement. Id. §§ 1117, 1124. The common law provides no rights like these. Contrary to the suggestion by the government, Mr. Tam is likely also barred from registering his mark in nearly every state. Three years after the enactment of the Lanham Act, the United States Trademark Association prepared the Model State Trademark Act—a bill patterned on the Lanham Act in many respects. McCarthy at § 22:5. The Model Act con- 37a tains language barring a mark from registration if it “consists of or comprises matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or dis- repute.” 1964 Model State Trademark Act, § 2. Following the lead of the federal government, virtually all states have adopted the Model Act and its dispar- agement provision. McCarthy at § 22:5. Thus, not only are the benefits of federal registration unavaila- ble to Mr. Tam, so too are the benefits of trademark registration in nearly all states.9 The government argues that the denial of Mr. Tam’s registration “does not eliminate any common- law rights that might exist in [his] mark.” Appellee’s En Banc Br. 20. But as the government’s use of “might” indicates, it is unclear whether Mr. Tam could actually enforce any common law rights to a disparag- ing mark.10 The 1964 Model State Trademark Act, which most states have adopted, provides that “[n]oth- ing herein shall adversely affect the rights or the en- forcement of rights in marks acquired in good faith at any time at common law.” § 14. However, the term “mark” is defined as “any trademark or service mark entitled to registration under this Act whether regis- tered or not.” § 1.C (emphasis added). Common law 9 And even if Mr. Tam could register his mark in a state, the benefits of state registration are limited by the boundaries of the individual state or the geographic scope of the actual use of the mark within the state. They are by no means the nationwide ben- efits afforded to federally registered trademarks. 10 Not surprisingly, holders of disparaging marks like Mr. Tam have not argued that they lack these common law rights on account of their marks not being registrable. They have little incentive to give this argument away. 38a rights to a mark may thus be limited to marks “enti- tled to registration.” Whether a user of an unregis- trable, disparaging mark has any enforceable common law rights is at best unclear. See Justin G. Blanken- ship, The Cancellation of Redskins as a Disparaging Trademark: Is Federal Trademark Law an Appro- priate Solution for Words That Offend?, 72 U. Colo. L. Rev. 415, 451 (2001) (“[A]ny mark that is canceled un- der section 2(a) of the Lanham Act for being scandal- ous or disparaging is unlikely to find much protection under common law principles either, although this will ultimately be determined by state courts applying their own common law principles.”); Llewellyn Joseph Gibbons, Semiotics of the Scandalous and the Immor- al and the Disparaging: Section 2(A) Trademark Law After Lawrence v. Texas, 9 Marq. Intell. Prop. L. Rev. 187, 232 (2005) (“[A]s immoral, scandalous, and/or disparaging marks may not be registered under either state or federal law, nor do they enjoy common law protection, there appears to be no way of establishing a legally recognized property right in these marks.”); Stephen Baird, Moral Intervention in the Trademark Arena: Banning the Registration of Scandalous and Immoral Trademarks, 83 TRADEMARK REPORT- ER 661, 795 (1993) (disparaging marks are presumably “unprotect[a]ble pursuant to state common law”). The Restatement (Third) of Unfair Competition notes that the Lanham Act and the Model State Trademark Bill both prohibit registration of disparaging marks and that adoption and use of such marks may preclude enforcement under the common law doctrine of un- clean hands. Restatement (Third) of Unfair Compe- tition § 32 cmt. c (1995). The government has not pointed to a single case where the common-law holder 39a of a disparaging mark was able to enforce that mark, nor could we find one. The government’s suggestion that Mr. Tam has common-law rights to his mark ap- pears illusionary.11 Whether Mr. Tam has enforceable common-law rights to his mark or could bring suit under § 43(a) does not change our conclusion. Federal trademark registration brings with it valuable substantive and procedural rights unavailable in the absence of regis- tration. These benefits are denied to anyone whose trademark expresses a message that the government finds disparages any group, Mr. Tam included. The 11 The government also argues that Mr. Tam “may” have rights under 15 U.S.C. § 1125(a) (“Section 43(a)”). First, those rights would not include the benefits afforded to federally registered marks. Furthermore, it is not at all clear that Mr. Tam could bring a § 43(a) unfair competition claim. Section 43(a) allows for a federal suit to protect an unregistered trademark, much like state common law. But there is no authority extending § 43(a) to marks denied under § 2(a)’s disparagement provision. To the contrary, courts have suggested that § 43(a) is only available for marks that are registrable under § 2. See Two Pesos, 505 U.S. at 768, 112 S. Ct. 2753 (section 43(a) “protects qualifying unregistered trade- marks and . . . 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)”); Yarmuth-Dion, Inc. v. D’ion Furs, Inc., 835 F.2d 990, 992 (2d Cir. 1987) (requiring a plaintiff to “demonstrate that his [unregistered] mark merits protection under the Lanham Act”); see also Renna v. Cty. of Union, 88 F. Supp. 3d 310, 320 (D.N.J. 2014) (“Section 2 declares certain marks to be unregistrable because they are inappropriate subjects for trade- mark protection. It follows that such unregistrable marks, not actionable as registered marks under Section 32, are not actionable under Section 43, either.”). And we have found no case allowing a § 43(a) action on a mark rejected or cancelled under § 2(a). 40a loss of these rights, standing alone, is enough for us to conclude that § 2(a) has a chilling effect on speech. Denial of federal trademark registration on the basis of the government’s disapproval of the message con- veyed by certain trademarks violates the guarantees of the First Amendment. B. Trademark Registration Is Not Government Speech The government suggests, and several amici argue, that trademark registration is government speech, and as such outside the coverage of the First Amendment. See Appellee’s En Banc Br. 41-42; Br. of Amici Curiae Nat’l Asian Pacific Am. Bar Ass’n 19-22; Br. of Amici Curiae Blackhorse 13-23. “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.” Pleasant Grove City v. Summum, 555 U.S. 460, 467, 129 S. Ct. 1125, 172 L. Ed. 2d 853 (2009). Although we find it difficult to understand the government’s precise posi- tion as to how trademark registration constitutes gov- ernment speech, we conclude that there is no govern- ment speech at issue in the rejection of disparaging trademark registrations that would insulate § 2(a) from First Amendment review. Wisely, the government does not argue that a mark- holder’s use or enforcement of its federally registered trademark is government speech. Use of a mark by its owner is clearly private speech. Trademarks identify the source of a product, and are often closely associated with the actual product. A mark’s pur- pose—to identify the source of goods—is antithetical to the notion that a trademark is tied to the govern- ment. The fact that COCA COLA and PEPSI may be 41a registered trademarks does not mean the government has endorsed these brands of cola, or prefers them over other brands. We see no reason that a mar- kholder’s use of its mark constitutes government speech. Instead, the government appears to argue that trademark registration and the accoutrements of reg- istration—such as the registrant’s right to attach the ® symbol to the registered mark, the mark’s place- ment on the Principal Register, and the issuance of a certificate of registration—amount to government speech. See Oral Argument at 52:40-53:07; 54:20- 54:32. This argument is meritless. Trademark reg- istration is a regulatory activity. These manifesta- tions of government registration do not convert the underlying speech to government speech. And if they do, then copyright registration would likewise amount to government speech. Copyright registration has identical accoutrements—the registrant can attach the © symbol to its work, registered copyrights are listed in a government database, and the copyright owner re- ceives a certificate of registration. The logical exten- sion of the government’s argument is that these indicia of registration convert the underlying speech into gov- ernment speech unprotected by the First Amendment. Thus, the government would be free, under this logic, to prohibit the copyright registration of any work deemed immoral, scandalous, or disparaging to others. This sort of censorship is not consistent with the First Amendment or government speech jurisprudence. In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the Supreme Court detailed the indicia of government speech. — U.S. —, 135 S. Ct. 2239, 42a 192 L. Ed. 2d 274 (2015). The Court concluded that specialty license plates were government speech, even though a state law allowed individuals, organizations, and nonprofit groups to request certain designs. The Court found several considerations weighing in favor of this holding. It emphasized that “the history of license plates shows that, insofar as license plates have conveyed more than state names and vehicle identifi- cation numbers, they long have communicated mes- sages from the States.” Id. at 2248. It stressed that “[t]he State places the name ‘TEXAS’ in large letters at the top of every plate,” that “the State requires Texas vehicle owners to display license plates, and every Texas license plate is issued by the State,” that “Texas also owns the designs on its license plates,” and that “Texas dictates the manner in which drivers may dispose of unused plates.” Id. As a consequence, the Court reasoned, “Texas license plate designs ‘are often closely identified in the public mind with the State.’ ” Id. (quoting Summum, 555 U.S. at 472, 129 S. Ct. 1125 (alteration omitted)). Amidst all of its other aspects of control, moreover, “Texas maintains direct control over the messages conveyed on its spe- cialty plates.” Id. at 2249. “Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the State has en- dorsed that message.” Id. The government’s argument in this case that trade- mark registration amounts to government speech is at odds with the Supreme Court’s analysis in Walker and unmoored from the very concept of government speech. When the government registers a trade- mark, the only message it conveys is that a mark is registered. The vast array of private trademarks are 43a not created by the government, owned or monopolized by the government, sized and formatted by the gov- ernment, immediately understood as performing any government function (like unique, visible vehicle iden- tification), aligned with the government, or (putting aside any specific government-secured trademarks) used as a platform for government speech. There is simply no meaningful basis for finding that consumers associate registered private trademarks with the gov- ernment. Indeed, the PTO routinely registers marks that no one can say the government endorses. See, e.g., RADICALLY FOLLOWING CHRIST IN MISSION TOGETHER, U.S. Reg. No. 4,759,522; THINK IS- LAM, U.S. Reg. No. 4,719,002 (religious marks); GANJA UNIVERSITY, U.S. Reg. No. 4,070,160 (drug-related); CAPITALISM SUCKS DONKEY BALLS, U.S. Reg. No. 4,744,351; TAKE YO PANT- IES OFF, U.S. Reg. No. 4,824,028; and MURDER 4 HIRE, U.S. Reg. No. 3,605,862. As the government itself explains, “the USPTO does not endorse any particular product, service, mark, or registrant” when it registers a mark. Appellee’s En Banc Br. 44. For decades, the government has maintained that: [J]ust as the issuance of a trademark registration by this Office does not amount to government en- dorsement of the quality of the goods to which the mark is applied, the act of registration is not a gov- ernment imprimatur or pronouncement that the mark is a “good” one in an aesthetic, or any analo- gous, sense. In re Old Glory Condom Corp., 26 U.S.P.Q. 2d 1216, 1219-20 n.3 (T.T.A.B. Mar. 3, 1993); see also McCarthy 44a at § 19:3.50 (“[G]overnment registration of a mark is neither a government endorsement of the quality of the goods to which the mark is applied nor a govern- ment pronouncement that the mark is a good or relia- ble one in any moral or commercial sense.”); Jeffrey Lefstin, Does the First Amendment Bar Cancellation of Redskins?, 52 Stan. L. Rev. 665, 684 (2000) (“The overwhelming majority of the public encounters trademarks in their roles as product identifiers, not as the beneficiaries of a federal registration scheme. The public is unlikely to believe that a registered trademark designation accompanying a word or logo on a product reflects government endorsement.”). Trademarks are understood in society to identify the source of the goods sold, and to the extent that they convey an expressive message, that message is associ- ated with the private party that supplies the goods or services. Trademarks are not understood to convey a government message or carry a government endorse- ment. The government argues that use of the ® symbol, being listed in a database of registered marks, and having been issued a registration certificate makes trademark registration government speech. These incidents of registration do not convert private speech into government speech. The government does not own the trademark designs or the underlying goods to which the trademark is affixed as the state owned the license plates in Walker. Markholders are not even required to use the ® symbol on their goods. 15 U.S.C. § 1111. And if simply affixing the ® symbol converted private speech into government speech then the government would be free to regulate the content, viewpoint, and messages of registered copyrights. A 45a copyright registration likewise allows the copyright owner to affix a © symbol, 17 U.S.C. § 401, but this symbol does not convert the copyrighted work into government speech or permit the government to grant some copyrights and deny others on account of the work’s message. Just as the public does not associate the copyrighted works Nigger: The Strange Career of a Troublesome Word or Fifty Shades of Grey with the government, neither does the public associate individual trademarks such as THE SLANTS with the government. Similarly, a registered mark’s placement on the Principal Register or publication in the PTO’s Official Gazette does not morph the private expression being registered into government expression. As a preliminary matter, it is not entirely clear what the Principal Register is. There is apparently no government-published book of all trademark registra- tions; instead, the Principal Register is at most an internet database hosted on the PTO’s website. See U.S. Patent and Trademark Office, Search Trade- mark Database, available at http://www.uspto.gov/ trademarks-application-process/search-trademark -database. If being listed in a government database or published in a list of registrations were enough to convert private speech to government speech, nearly every action the government takes—every parade permit granted, every property title recorded, every hunting or fishing license issued—would amount to government speech. The government could record recipients of parade permits in an official database or publish them weekly, thus insulating content-based grants of these permits from judicial review. Gov- ernmental agencies could assign TV and radio licenses 46a and states could refuse to license medical doctors with no First Amendment oversight by “registering” these licenses in an online database, or by allowing licensees to display a mark by their name. The fact that the government records a trademark in a database of all registered trademarks cannot possibly be the basis for concluding that government speech is involved. Finally, the issuance of a registration certificate signed by the Director with the seal of the United States Patent and Trademark Office does not convert private expression or registration into government speech. This is a certificate, a piece of paper, which the trademark owner is free to do with as it wishes. The government maintains no control over the certifi- cates. The government does not require companies to display their trademark registration certificate, or dictate the manner in which markholders may dispose of unused registration certificates. It is not public like license plates or monuments. When copyrights are granted, the copyright owner receives a similar registration certificate with the seal and signed by the Registrar of Copyrights. 17 U.S.C. § 410(a). And patents issue “in the name of the United States of America, under the seal of the Patent and Trade- mark Office,” with a gold seal and red ribbon at- tached. 35 U.S.C. § 153; see also U.S. Patent and Trademark Office, Patent Process Overview, avail- able at http://www.uspto.gov/patents-getting-started/ patent process-overview#step7 (explaining that patent grants are issued with “a gold seal and red ribbon on the cover”). These certificates do not convert the registered subject matter into government speech such that the government is free to regulate its con- tent. The public simply does not view these registra- 47a tion certificates as the government’s expression of its ideas or as the government’s endorsement of the ideas, inventions, or trademarks of the private speakers to whom they are issued. In short, the act of registration, which includes the right (but not the obligation) to put an ® symbol on one’s goods, receiving a registration certificate, and being listed in a government database, simply cannot amount to government speech. The PTO’s processing of trademark registrations no more transforms private speech into government speech than when the govern- ment issues permits for street parades, copyright reg- istration certificates, or, for that matter, grants medi- cal, hunting, fishing, or drivers licenses, or records property titles, birth certificates, or articles of incor- poration. To conclude otherwise would transform every act of government registration into one of gov- ernment speech and thus allow rampant viewpoint dis- crimination. When the government registers a trade- mark, it regulates private speech. It does not speak for itself. C. Section 2(a) Is Not a Government Subsidy Exempt from Strict Scrutiny We reject the government’s argument that § 2(a)’s message-based discrimination is merely the govern- ment’s shaping of a subsidy program. The govern- ment’s defense is contrary to the long-established un- constitutional conditions doctrine. The Supreme Court has repeatedly invalidated denials of “benefits” based on message-based disapproval of private speech that is not part of a government-speech program. In such circumstances, denial of an otherwise-available benefit is unconstitutional at least where, as here, it 48a has a significant chilling effect on private speech. Bd. of Cty. Comm’rs, 518 U.S. at 674, 116 S. Ct. 2342 (1996) (explaining that “the threat of the loss of [a valuable financial benefit] in retaliation for speech may chill speech on matters of public concern”); id. (“[r]ecog- nizing that constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental efforts that fall short of a direct prohibition against the exer- cise of First Amendment rights”) (citations and altera- tions omitted). Under the unconstitutional conditions doctrine: [E]ven though a person has no ‘right’ to a valuable governmental benefit and even though the govern- ment may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a ben- efit to a person on a basis that infringes his consti- tutionally protected interests—especially, his in- terest in freedom of speech. Perry, 408 U.S. at 597, 92 S. Ct. 2694. The Supreme Court, applying this doctrine, held that a state college could not refuse to retain a professor because of his public criticism of that college’s policy, even though the professor had no right to reemployment, and even though the government had not directly prohibited the professor from speaking. Id. at 597-98, 92 S. Ct. 2694. This is because “[t]o deny [a benefit] to claim- ants who engage in certain forms of speech is in effect to penalize them for such speech.” Speiser v. Ran- dall, 357 U.S. 513, 518, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958); Perry, 408 U.S. at 597, 92 S. Ct. 2694 (“For if the government could deny a benefit to a person be- cause of his constitutionally protected speech or asso- 49a ciations, his exercise of those freedoms would in effect be penalized and inhibited.”). Since Perry, the Supreme Court has wrestled with how to apply the unconstitutional conditions doctrine while protecting Congress’s ability to direct govern- ment spending. The Spending Clause of the U.S. Constitution, which grants Congress the power “[t]o lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States,” U.S. Const. Art. I, § 8, cl. 1, “provides Congress broad discretion to tax and spend for the ‘general Welfare,’ including by funding particular state or private programs or activi- ties.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., — U.S. —, 133 S. Ct. 2321, 2327-28, 186 L. Ed. 2d 398 (2013). This includes “the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends,” even when these limits exclude protected speech or other constitutionally protected conduct. Id. at 2328 (citing Rust v. Sullivan, 500 U.S. 173, 195 n.4, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991)). The Court reasoned that “if a party objects to a condition on the receipt of fed- eral funding,” it can always decline the funds. Id. “[W]hen the Government appropriates public funds to establish a program it is entitled to define the limits of that program.” United States v. Am. Library Ass’n, 539 U.S. 194, 211, 123 S. Ct. 2297, 156 L. Ed. 2d 221 (2003) (quoting Rust, 500 U.S. at 194, 111 S. Ct. 1759). For purposes of a message-discriminatory condition on the grant of government funds, the Supreme Court has said that the government can “dis- burse[] public funds to private entities to convey a 50a governmental message.” Legal Servs. Corp. v. Ve- lazquez, 531 U.S. 533, 541, 121 S. Ct. 1043, 149 L. Ed. 2d 63 (2001) (citation omitted). When it does so, “it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” Id. Therefore, “viewpoint-based fun- ding decisions can be sustained in instances . . . in which the government used private speakers to transmit specific information pertaining to its own pro- gram.” Id. (citations omitted). Thus, in Rust, the government could prohibit the expenditure of public federal family planning funds on abortion-related counseling because the government distributed those funds to promote the conveying of a particular message. Rosenberger, 515 U.S. at 833, 115 S. Ct. 2510 (citing Rust, 500 U.S. at 194, 111 S. Ct. 1759); Velazquez, 531 U.S. at 541, 121 S. Ct. 1043 (not- ing that Rust must be understood as resting on the conclusion that it involved “government speech”). Relatedly, although there was no majority opinion in American Library Ass’n, the Court upheld a specific congressional determination not to give money for technology to be used for supporting particular speech (pornography) in particular circumstances (in public libraries where non-user patrons likely would inad- vertently see it), even then only upon confirming the minor nature of the burden on the user patrons in- volved. 539 U.S. at 211-12, 123 S. Ct. 2297 (upholding conditioning public libraries’ receipt of federal subsi- dies on their use of Internet filtering software, because Congress was entitled to insist that “public funds be spent for the purposes for which they were authorized” (quotation marks omitted)). Earlier, the Court had recognized that tax exemptions or deductions were a 51a form of subsidy for First Amendment analysis. Re- gan v. Taxation with Representation of Wash., 461 U.S. 540, 544, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) (“Both tax exemptions and tax-deductibility are a form of subsidy that is administered through the tax sys- tem.”); id. (explaining that tax-exempt status “has much the same effect as a cash grant to an organiza- tion”). The government’s discretion to direct its spending, while broad, is not unbounded, and the limits take ac- count of the real-world effect on the speech of those subject to the conditions. If a program arises under the Spending Clause, Congress is free to attach “con- ditions that define the limits of the government spend- ing program—those that specify the activities Con- gress wants to subsidize.” Agency for Int’l Dev., 133 S. Ct. at 2328. However, Congress does not have the authority to attach “conditions that seek to leverage funding to regulate speech outside the contours of the program itself.” Id. “Congress cannot recast a con- dition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.” Velazquez, 531 U.S. at 547, 121 S. Ct. 1043. The Court held that Congress could not restrict appropriations aimed at combating the spread of HIV/AIDS to only organizations having policies affirmatively opposing prostitution and sex trafficking, which would make such organizations unable to convey a contrary message. Agency for Int’l Dev., 133 S. Ct. at 2330-31. The Court struck down Congress’s conditioning of funding to public broadcasters on their refraining from editorializing, even with their non-federal money. FCC v. League of Women Voters, 468 U.S. 364, 104 S. Ct. 3106, 82 L. Ed. 52a 2d 278 (1984). And in Regan, the Court, in upholding the subsidy of certain organizations for lobbying, took pains to note the relatively easy work-around for other unsubsidized organizations to achieve a comparable position for lobbying and the absence of any attempt to suppress ideas. 461 U.S. at 548, 103 S. Ct. 1997; see Leathers v. Medlock, 499 U.S. 439, 452, 111 S. Ct. 1438, 113 L. Ed. 2d 494 (1991) (discussing Regan). The government argues that trademark registra- tion is a form of government subsidy that the govern- ment may refuse where it disapproves of the message a mark conveys. It contends: “Congress has at least as much discretion to determine which terms and symbols should be registered and published by a fed- eral agency as it would to determine which private entities should receive federal funds.” Appellee’s En Banc Br. 29. But as already described, trademark registration is not a program through which the gov- ernment is seeking to get its message out through recipients of funding (direct or indirect). And for the reasons described above, the denial of registration has a major chilling effect on private speech, because the benefits of registration are so substantial. Nor is there a ready work-around to maintain private speech without significant disadvantage. Markholders can- not, for example, realistically have two brand names, one inoffensive, non-disparaging one (which would be able to secure registration) and a second, expressive, disparaging one (which would be unregistrable and unprotectable). In any event, the scope of the subsidy cases has never been extended to a “benefit” like recognition of legal rights in speakers against private interference. 53a The cases cannot be extended to any “program” con- ferring legal rights on the theory that the government is free to distribute the legal rights it creates without respecting First Amendment limits on content and viewpoint discrimination. Not surprisingly, the sub- sidy cases have all involved government funding or government property. The government cites Ysursa v. Pocatello Educa- tion Ass’n, 555 U.S. 353, 129 S. Ct. 1093, 172 L. Ed. 2d 770 (2009), and Davenport v. Washington Education Ass’n, 551 U.S. 177, 127 S. Ct. 2372, 168 L. Ed. 2d 71 (2007), in support of its subsidy defense of § 2(a). Appellee’s En Banc Br. 28-29. But they are inappo- site. Both Davenport and Ysursa center on challeng- es to the constitutionality of state laws limiting the ability of public-sector unions to spend on political speech non-members’ money the unions obtain through the government’s affirmative use of its own payroll systems. Davenport, 551 U.S. at 180, 127 S. Ct. 2372 (considering constitutionality of law pro- hibiting payroll deductions for political spending un- less the union had the affirmative consent of the non-member); Ysursa, 555 U.S. at 355, 129 S. Ct. 1093 (considering constitutionality of law completely pro- hibiting payroll deductions for political spending). Even in the context of use of government property, the Court focused on the absence of viewpoint discrimina- tion, holding that the programs placed a “reasonable, viewpoint-neutral limitation” on the unions’ abilities to enlist the government’s aid in acquiring the money of government employees for spending on political speech to which particular employees might object. Davenport, 551 U.S. at 189, 127 S. Ct. 2372; see also Ysursa, 555 U.S. at 361 n.3, 129 S. Ct. 1093. The 54a prohibitions were not “aimed at the suppression of dangerous ideas.” Ysursa, 555 U.S. at 359, 129 S. Ct. 1093 (alterations omitted); see also Davenport, 551 U.S. at 190, 127 S. Ct. 2372 (“Quite obviously, no sup- pression of ideas is afoot.”). These cases do not speak to Congress’s power to enact viewpoint-discriminatory regulations like § 2(a). The government does not shy away from the fact that the purpose of § 2(a) is to discourage, and thereby eliminate, disparaging marks, particularly marks that include “the most vile racial epithets,” “religious in- sults,” “ethnic caricatures,” and “misogynistic images.” Appellee’s En Banc Br. 1-3. On its face, § 2(a) is aimed at the suppression of dangerous ideas, unlike the provisions in Ysursa and Davenport. Moreover Ysursa and Davenport both took place in “the unique context of public-sector agency-shop arrangements,” where the government was “act[ing] in a capacity other than as regulator.” Davenport, 551 U.S. at 188, 190, 127 S. Ct. 2372. Thus, the risk that the govern- ment “may effectively drive certain ideas or viewpoints from the marketplace [was] attenuated.” Id. at 188, 127 S. Ct. 2372. Section 2(a) is regulation of speech that targets expressive content and thereby threatens to drive ideas or viewpoints from the marketplace. In determining if a condition on a favorable gov- ernment action is unconstitutional, courts—both be- fore and after Davenport and Ysursa—have distin- guished between government actions that implicate the government’s power to spend and government actions that do not. For example, the Ninth Circuit considered the constitutionality of a treaty under which certain “educational, scientific and cultural 55a audio-visual materials” were granted various benefits, including exemption from import duties. Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 503 (9th Cir. 1988). The government argued, as it does here, that the reg- ulations stemming from the treaty did not “punish or directly obstruct [filmmakers’] ability to produce or disseminate their films,” but amount to “the govern- ment simply declining to pay a subsidy.” Id. at 509. The Ninth Circuit rejected the government’s “benign characterization” of the regulations and held that the trade benefits were not a subsidy because “no Treas- ury Department funds [were] involved.” Id. at 509. Because the trade benefits were not a subsidy, the Ninth Circuit held that the unconstitutional conditions doctrine applied, and found the treaty and implement- ing regulations unconstitutional. Id. at 511. The Fifth Circuit, sitting en banc, recently consid- ered the constitutionality of a Texas law allowing charitable organizations to hold bingo games so long as the resulting funds were not used for lobbying. Dep’t of Tex., Veterans of Foreign Wars v. Tex. Lottery Comm’n, 760 F.3d 427, 430 (5th Cir. 2014) (en banc). The Texas Lottery Commission argued that the re- strictions were constitutional because they fell within the state government’s spending power, which is analogous to the federal government’s spending power. Id. at 434. The Fifth Circuit agreed that “the govern- ment may attach certain speech restrictions to funds linked to the public treasury—when either granting cash subsidies directly from the public coffers . . . or approving the withholding of funds that otherwise would go to the public treasury.” Id. at 435. But it found the Texas bingo program “wholly distinguisha- ble . . . because no public monies or ‘spending’ 56a by the state are involved.” Id. at 436. Reasoning that the bingo program’s primary function is regula- tory, further “underscor[ing] the incongruity of [ap- plying] the ‘subsidy’ paradigm to the bingo program,” the Fifth Circuit applied the unconstitutional condi- tions doctrine and found the lobbying provision uncon- stitutional. Id. at 437-41. Similarly, the D.C. Circuit recently held that a presidential directive barring lobbyists from serving on international trade advisory committees implicated the First Amendment. Autor v. Pritzker, 740 F.3d 176, 177 (D.C. Cir. 2014). The government argued that “when [it] appropriates public funds to establish a program, its decision not to use program funds to subsidize the exercise of a fundamental right does not infringe” the First Amendment. Id. at 182 (quota- tions and alterations omitted). The D.C. Circuit re- jected this argument because membership in the advi- sory committees was a non-financial—albeit valuable— benefit. Id. at 182-83. Explaining that “[t]he Su- preme Court has never extended the [spending excep- tion] to situations not involving financial benefits,” the D.C. Circuit found the directive could be an unconsti- tutional condition, and remanded for further consider- ation. Id. at 183-84. Trademark registration does not implicate Con- gress’s power to spend or to control use of government property.12 Trademark registration is not a subsidy. The benefits of trademark registration, while valuable, 12 Counsel for the United States at oral argument disclaimed the notion that a government forum approach was appropriate in the context of trademark registration. See Oral Argument at 1:14:25- 1:14:58; 1:16:20-1:17:15. 57a are not monetary. Unlike a subsidy consisting of, for example, HIV/AIDS funding, or tax exemptions, a trademark registration does not directly affect the public fisc. Instead, a registered trademark rede- fines the nature of the markholder’s rights as against the rights of other citizens, depriving others of their ability to use the mark. Like the programs in Bull- frog and Texas Lottery Commission, the system of trademark registration is a regulatory regime, not a government subsidy program. The government also argues that because the PTO is funded by appropriations, any government spending requirement is met here. Appellee’s En Banc Br. 29-30 (citing 35 U.S.C. § 42(c)(1)-(2)). Trademark registration fees are collected and, “[t]o the extent and in the amounts provided in advance in appropriations Acts,” made available “to carry out the activities of the [PTO].” 35 U.S.C. § 42(c)(1). However, since 1991 these appropriations have been funded entirely by registration fees, not the taxpayer. Figueroa v. United States, 466 F.3d 1023, 1028 (Fed. Cir. 2006); see also 56 Fed. Reg. 65147 (1991); Omnibus Budget Rec- onciliation Act of 1990, Pub. L. No. 101-508, S. 10101, 1990 U.S.C.C.A.N. (104 Stat.) 1388. The fact that registration fees cover all of the operating expenses associated with registering marks is further evidence that, despite conveying valuable benefits, trademark registration is not a government subsidy. While PTO operations are fully underwritten by registration fees, some federal funds are nonetheless spent on the registration and enforcement of trade- marks. For example, PTO employee benefits, in- cluding pensions, health insurance, and life insurance, 58a are administered by the Office of Personnel Manage- ment and funded from the general treasury. Figue- roa, 466 F.3d at 1028. And registering a trademark may lead to additional government spending, such as when the trademark owner seeks to enforce the trademark through the federal courts and U.S. Cus- toms and Border Patrol. This spending, however, is attenuated from the benefits bestowed by registration. Trademark registration does not implicate the Spend- ing Clause merely because of this attenuated spending, else every benefit or regulatory program provided by the government would implicate the Spending Clause. The Copyright Office is only partially funded by user fees, but copyright registration is nonetheless not a subsidy. Copyright Office Fees: Registration, Re- cordation and Related Services; Special Services; Licensing Division Services; FOIA Services, 79 Fed. Reg. 15910-01 (Mar. 24, 2014) (setting fees to recover “a significant part of the costs to the Office of regis- tering copyright claims”). It would be unreasonable to argue that the government subsidizes an author when it grants him a copyright. Similarly, the pro- grams in Bullfrog and Texas Lottery Commission were likely funded in some part by the government— perhaps also by government benefits paid to employ- ees administering the programs—but the Ninth Cir- cuit and the Fifth Circuit considered only whether the conditioned benefits were paid for by government spending, and not whether the programs were subsi- dized in more indirect ways. And while the govern- ment argued in Autor that the government had ap- propriated public funds to establish the international trade advisory committees, 740 F.3d at 182, the D.C. Circuit nonetheless found that membership on these 59a advisory committees was not a financial benefit, id. at 183. The fact that the Lanham Act derives from the Commerce Clause, not the Spending Clause, is further evidence that trademark registration is not a subsidy. The purpose of the Lanham Act is to regulate marks used in interstate commerce, prevent customer confu- sion, and protect the goodwill of markholders, 15 U.S.C. § 1127, not to subsidize markholders. Moreo- ver, the government funding cases have thus far been limited to situations where the government has chosen to limit funding to individuals that are advancing the goals underlying the program the government seeks to fund. See generally Agency for Int’l Dev., 133 S. Ct. at 2324-25; Rust, 500 U.S. at 191, 111 S. Ct. 1759; cf. American Library Ass’n, 539 U.S. at 211, 123 S. Ct. 2297 (it is not unconstitutional for the government to insist that “public funds be spent for the purposes for which they were authorized”). The restriction on the registration of disparaging marks bears no relation to the objectives, goals, or purpose of the federal trade- mark registration program. Preventing disparaging marks does not protect trademark owners’ invest- ments; in fact, because § 2(a) can be brought in can- cellation proceedings decades after a mark is granted, this provision actually undermines this important pur- pose of the Lanham Act. And the disparagement pro- scription has never been alleged to prevent consumer confusion or deception. The government’s viewpoint —and content-based discrimination in this case is com- pletely untethered to the purposes of the federal trademark registration program. It would be a radi- cal extension of existing precedent to permit the gov- ernment to rely upon its power to subsidize to justify 60a its viewpoint discrimination, when that discrimination has nothing to do with the goals of the program in which it is occurring. Were we to accept the government’s argument that trademark registration is a government subsidy and that therefore the government is free to restrict speech within the confines of the trademark program, it would expand the “subsidy” exception to swallow nearly all government regulation. In many ways, trademark registration resembles copyright registra- tion. Under the logic of the government’s approach, it follows that the government could refuse to register copyrights without the oversight of the First Amend- ment. Congress could pass a law prohibiting the copyrighting of works containing “racial slurs,” “reli- gious insults,” “ethnic caricatures,” and “misogynistic images.” Appellee’s En Banc Br. 2-3. It is difficult to imagine how trademark registration with its at- tendant benefits could be deemed a government sub- sidy but copyright registration with its attendant ben- efits would not amount to a government subsidy. And if both must be treated as government subsidies by virtue of their conference of benefits or advantages, though not public money, then the government has the right to make content—or viewpoint-based determina- tions over which works to grant registration. This idea—that the government can control speech by denying the benefits of copyright registration to dis- favored speech—is anathema to the First Amendment. With this, the government agrees, arguing that copy- right registration, unlike trademark registration, is protected by the First Amendment. Oral Arg. at 36:45-38:50. But the government has advanced no principled reason to treat trademark registration dif- 61a ferently than copyright registration for present pur- poses. The government admits that any message- based regulation of copyrights would be subject to the First Amendment. We agree, and extend the gov- ernment’s reasoning to § 2(a)’s message-based regula- tion of trademarks. These registration programs are prototypical examples of regulatory regimes. The government may not place unconstitutional conditions on trademark registration. We reject the govern- ment’s argument that it is free to restrict constitution- al rights within the confines of its trademark registra- tion program. III. Section 2(a) Is Unconstitutional Even Under the Central Hudson Test for Commercial Speech As discussed above, § 2(a) regulates expressive speech, not commercial speech, and therefore strict scrutiny is appropriate. Trademarks have at times been referred to as commercial speech. See, e.g., Friedman v. Rogers, 440 U.S. 1, 11, 99 S. Ct. 887, 59 L. Ed. 2d 100 (1979) (holding that the trade name of an optometrist was commercial speech). They are, after all, commercial identifiers, the symbols and words by which companies distinguish and identify their brands. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 765, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976) (defining commercial speech as the “dissemination of information as to who is produc- ing and selling what product, for what reason, and at what price”). It does not follow, however, that all government regulation of trademarks is properly re- viewed under the Central Hudson intermediate scru- tiny standard. Section 2(a) bars registration of dis- paraging marks. This regulation is squarely based on 62a the expressive aspect of the speech, not its commer- cial-speech aspects. It should therefore be evaluated under the First Amendment standards applicable to the regulation of expressive speech. Discrimination against a mark by virtue of its offensive, disparaging nature discriminates against the mark’s political or social message. Section 2(a) should be subject to strict scrutiny, and be invalidated for its undisputed inability to survive such scrutiny. Even if we were to treat § 2(a) as a regulation of commercial speech, it would fail to survive. In Cen- tral Hudson, the Supreme Court laid out the interme- diate-scrutiny framework for determining the consti- tutionality of restrictions on commercial speech. 447 U.S. at 566, 100 S. Ct. 2343. First, commercial speech “must concern lawful activity and not be misleading.” Id. If this is the case, we ask whether “the asserted governmental interest is substantial,” id., and whether the regulation “directly and materially advanc[es]” the government’s asserted interest and is narrowly tai- lored to achieve that objective. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555-56, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001). “Under a commercial speech in- quiry, it is the State’s burden to justify its content- based law as consistent with the First Amendment.” Sorrell, 131 S. Ct. at 2667. First, we ask whether the regulated activity is law- ful and not misleading. Cent. Hudson, 447 U.S. at 563-64, 100 S. Ct. 2343. Unlike many other provisions of § 2, the disparagement provision does not address misleading, deceptive, or unlawful marks. There is nothing illegal or misleading about a disparaging trademark like Mr. Tam’s mark. 63a Next, for speech that is lawful and not misleading, a substantial government interest must justify the reg- ulation. Id. at 566, 100 S. Ct. 2343. But § 2(a) im- mediately fails at this step. The entire interest of the government in § 2(a) depends on disapproval of the message. That is an insufficient interest to pass the test of intermediate scrutiny, as the Supreme Court made clear in Sorrell. 131 S. Ct. at 2668 (law must not “seek to suppress a disfavored message”); id. at 2670 (rejecting message-based interest as “contrary to basic First Amendment principles”); see id. at 2667-68 (finding it unnecessary to rely on strict scrutiny; re- jecting justification under Central Hudson); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 69-72, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983); Carey v. Popula- tion Servs., Int’l, 431 U.S. 678, 701 & n.28, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977). The government proffers several interests to justify its bar on disparaging trademarks. It argues princi- pally that the United States is “entitled to dissociate itself from speech it finds odious.” Appellee’s En Banc Br. 41. This core argument rests on intense dis- approval of the disparaging marks. See, e.g., Appel- lee’s En Banc Br. 1 (“the most vile racial epithets and images”); id. at 2-3 (“racial slurs . . . or religious insults, ethnic caricatures, misogynistic images, or any other disparaging terms or logos”); id. at 14 (“racial epithets”); id. at 21 (“racial slurs and similar dispar- agements”); id. at 22 (“including the most vile racial epithets”); id. at 41 (“speech [the government] finds odious”); id. at 44 (“racial slurs”). And that disap- proval is not a legitimate government interest where, as here, for the reasons we have already discussed, there is no plausible basis for treating the speech as 64a government speech or as reasonably attributed to the government by the public. The government also argues that it has a legitimate interest in “declining to expend its resources to facili- tate the use of racial slurs as source identifiers in interstate commerce.” Appellee’s En Banc Br. 43. The government’s interest in directing its resources does not warrant regulation of these marks. As dis- cussed, trademark registration is user-funded, not taxpayer-funded. The government expends few re- sources registering these marks. See supra at 1353-54. Its costs are the same costs that would be incidental to any governmental registration: articles of incorporation, copyrights, patents, property deeds, etc. In fact, the government spends far more signifi- cant funds defending its refusal decisions under the statute. See McGinley, 660 F.2d at 487 (Rich, J., dissenting) (“More ‘public funds’ are being expended in the prosecution of this appeal than would ever result from the registration of the mark.”). Finally, labeling this sort of interest as substantial creates an end-run around the unconstitutional conditions doctrine, as virtually all government benefits involve the resources of the federal government in a similar sense. Nearly every government act could be justified under this ground, no matter how minimal. For example, the government could also claim an interest in declining to spend resources to issue permits to racist, sexist, or homophobic protests. The government cannot target speech on this basis, even if it must expend resources to grant parade permits or close down streets to facil- itate such speech. 65a This holds true even though the government claims to have a “compelling interest in fostering racial tol- erance.” Appellee’s En Banc Br. 43 (citing Bob Jones Univ. v. United States, 461 U.S. 574, 604, 103 S. Ct. 2017, 76 L. Ed. 2d 157 (1983)). Bob Jones University does not stand for the broad proposition the govern- ment claims. Bob Jones University is a case about racially discriminatory conduct, not speech. The Court held that the government has an interest in combating “racial discrimination in education,” not a more general interest in fostering racial tolerance that would justify preventing disparaging speech. Id. at 595, 103 S. Ct. 2017. The invocation of the general racial-tolerance in- terest to support speech regulation is a sharply differ- ent matter, as the Supreme Court explained in R.A.V.: One must wholeheartedly agree with the Minnesota Supreme Court that “[i]t is the responsibility, even the obligation, of diverse communities to confront [virulent notions of racial supremacy] in whatever form they appear,” but the manner of that confron- tation cannot consist of selective limitations upon speech. St. Paul’s brief asserts that a general “fighting words” law would not meet the city’s needs because only a content-specific measure can communicate to minority groups that the “group hatred” aspect of such speech “is not condoned by the majority.” The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the ba- sis of its content. 505 U.S. at 392, 112 S. Ct. 2538 (first alteration in original; citations omitted). What is true of direct 66a “silencing” is also true of the denial of important legal rights. “[I]n public debate we must tolerate insulting, and even outrageous, speech in order to provide ade- quate breathing space to the freedoms protected by the First Amendment.” Snyder, 562 U.S. at 458, 131 S. Ct. 1207 (quoting Boos v. Barry, 485 U.S. 312, 322, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988)) (alterations omitted). The case law does not recognize a substan- tial interest in discriminatorily regulating private speech to try to reduce racial intolerance. Moreover, at the level of generality at which the government invokes “racial tolerance,” it is hard to see how one could find that § 2(a) “directly and materially advanc[es]” this interest and is narrowly tailored to achieve that objective. Lorillard Tobacco Co., 533 U.S. at 555-56, 121 S. Ct. 2404. Disparaging speech abounds on the Internet and in books and songs bear- ing government registered copyrights. And the PTO has granted trademark registrations of many marks with a racially charged character. Further, the con- nection to a broad goal of racial tolerance would be even weaker to the extent that the government sug- gests, contrary to our conclusion in II.A supra, that denial of registration has no meaningful effect on the actual adoption and use of particular marks in the marketplace. Finally, the government argues that it has a legiti- mate interest in “allowing States to make their own determinations about whether trademarks should be unenforceable on grounds of public policy.” Appel- lee’s En Banc Br. 44. However, this interest cannot stand alone. If § 2(a) is otherwise unconstitutional, the government cannot render it constitutional by ar- 67a guing that it is necessary so that states can partake in the same unconstitutional message-based regulation of trademarks. The government, in essence, argues that it has a legitimate interest in leaving the door open for states to violate the Constitution. This interest is certainly not legitimate, let alone substantial. We conclude that the government has not presented us with a substantial government interest justifying the § 2(a) bar on disparaging marks. All of the gov- ernment’s proffered interests boil down to permitting the government to burden speech it finds offensive. This is not a legitimate interest. With no substantial government interests, the disparagement provision of § 2(a) cannot satisfy the Central Hudson test. We hold the disparagement provision of § 2(a) unconstitu- tional under the First Amendment. CONCLUSION Although we find the disparagement provision of § 2(a) unconstitutional, nothing we say should be viewed as an endorsement of the mark at issue. We recognize that invalidating this provision may lead to the wider registration of marks that offend vulnerable communities. Even Mr. Tam, who seeks to reappro- priate the term “slants,” may offend members of his community with his use of the mark. See Br. of Amici Curiae Nat’l Asian Pacific Am. Bar Ass’n 3, 5. But much the same can be (and has been) said of many decisions upholding First Amendment protection of speech that is hurtful or worse. Whatever our per- sonal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids gov- ernment regulators to deny registration because they find the speech likely to offend others. Even when 68a speech “inflict[s] great pain,” our Constitution protects it “to ensure that we do not stifle public debate.” Snyder, 562 U.S. at 461, 131 S. Ct. 1207. The First Amendment protects Mr. Tam’s speech, and the speech of other trademark applicants. We hold that the disparagement provision of § 2(a) is unconstitutional because it violates the First Amendment. We vacate the Board’s holding that Mr. Tam’s mark is unregistrable, and remand this case to the Board for further proceedings. O’MALLEY, Circuit Judge, with whom WALLACH, Circuit Judge, joins, concurring. I agree that the disparagement provision of 15 U.S.C. § 1052(a) (“§ 2(a)”) is unconstitutional on its face. I agree, moreover, that § 2(a) cannot survive the searching constitutional scrutiny to which the ma- jority subjects it under the First Amendment to the United States Constitution. On this point, the major- ity rightly dispenses with this court’s precedent in In re McGinley, 660 F.2d 481 (C.C.P.A. 1981) and its progeny. I write separately, however, because, I be- lieve § 2(a) is also unconstitutionally vague, rendering it unconstitutional under the Fifth Amendment to the United States Constitution. While the majority acknowledges the vague and uncertain application of § 2(a), Maj. Op. 1341-43, it finds that “[a]ll we need say about the uncertainty here, however, is that it contributes significantly to the chilling effect on speech,” id. at 1342-43. I agree with the majority’s concern about the uncertain nature of § 2(a), but believe those concerns should lead us to do more than note 2(a)’s undoubted chilling effect on 69a speech. I find § 2(a)’s disparagement provision to be so vague that I would find it to be unconstitutional, whether or not it could survive Appellant’s First Amendment challenge. DISCUSSION Section 2(a) provides that the Trademark Trial and Appeal Board (“Board”) may refuse an application when the trademark “[c]onsists of or comprises . . . matter which may disparage . . . per- sons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” (emphasis added). As the majority correctly notes, the language of the statute creates “uncertainty as to what might be deemed disparaging.” Maj. Op. 1341-42. Both would- be applicants and the Board are left to guess at what may have the potential to disparage a broad range of persons, institutions, symbols, and even undefined “beliefs.” And, they are left to guess at whether “may disparage” is the equivalent of bringing into contempt or disrepute, or is a distinct category of impropriety from these latter evils. Where, as here, the language of a statute evades clarity, “[t]he area of proscribed conduct will be ade- quately defined and the deterrent effect of the statute contained within constitutional limits only by authori- tative constructions sufficiently illuminating the con- tours of an otherwise vague prohibition.” Dom- browski v. Pfister, 380 U.S. 479, 490-91, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). The Board has developed a two-step test to determine whether a mark is dispar- aging: (1) What is the likely meaning of the matter in question, taking into account not only dictionary 70a 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; and (2) If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a sub- stantial composite of the referenced group. Trademark Manual of Exam. Proc. (“TMEP”) § 1203.03(b)(i) (Oct. 2015 ed.) (citing, inter alia, In re Geller, 751 F.3d 1355, 1358 (Fed. Cir. 2014); Harjo v. Pro-Football Inc., 50 U.S.P.Q. 2d 1705, 1740-41 (T.T.A.B. 1999)). Thus, the Board has concluded that a mark may disparage within the meaning of § 2(a) when a majority of the Board believes it “dishonor[s] by comparison with what is inferior, slight[s], depre- cate[s], degrade[s], or affect[s] or injure[s] by unjust comparison.” Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96, 124 (D.D.C. 2003) (internal quotation marks omitted) (quoting Harjo v. Pro-Football, Inc., 50 U.S.P.Q. 2d 1705, 1737 n.98 (T.T.A.B. 1999)). The two-step test does little to alleviate § 2(a)’s un- certainty. Indeed, by adding the caveat that a mark can be rejected whenever a mark’s meaning may be disparaging to “a substantial composite” of an “identi- fiable” group, (TMEP § 1203.03(b)(i)), the TMEP com- pounds the confusion the statute engenders. Thus a mark need only potentially disparage a subset of any group as long as that group can be “identifi[ed].” One need only examine the disparate ways in which § 2(a) has been applied to see the confusion. While it 71a is true that a “fertile legal ‘imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question,’ ” Grayned v. City of Rockford, 408 U.S. 104, 112 n.15, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (alteration in original) (quoting Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 412, 70 S. Ct. 674, 94 L. Ed. 925 (1950)), the arbitrary applica- tion of § 2(a) is easily demonstrated. The majority discusses numerous examples of inconsistent registra- tion decisions. Maj. Op. 1342 n.7. These include ex- amples where there is no conceivable difference be- tween the applied-for marks, yet one is approved and the other rejected. Compare HAVE YOU HEARD SATAN IS A REPUBLICAN (Trademark Application Serial No. 85,077,647) (rejected because it disparaged the Republican Party), with THE DEVIL IS A DEM- OCRAT, Registration No. 85,525,066 (accepted and later abandoned for other reasons). I agree with the majority that there appears to be “no rationale for the PTO’s seemingly arbitrary registration decisions, let alone one that would give applicants much guidance.” Maj. Op. 1342 n.7.1 1 Amici also were easily able to uncover examples of inconsisten- cies in the application of the § 2(a). See Br. for American Civil Liberties Union, the American Civil Liberties Union of Oregon, and the American Civil Liberties Union of the Nation’s Capital as Amici Curiae 22-24 (discussing “a long line of arbitrary and contra- dictory decisions” as evidenced by the “countless examples of such irregularities,” including, but not limited to, examples where the same mark is rejected in one instance and accepted in another, even for the same use—for example compare MADONNA, In re Riverbank Canning Co., 25 CCPA 1028, 95 F.2d 327 (CCPA 1938) (affirming rejection of mark for use on wines as scandalous), with MADONNA, Registration No. 3,545,635 (accepted for use on wine) 72a For § 2(a) to survive a vagueness challenge, the Supreme Court requires it “give the person of ordi- nary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned, 408 U.S. at 108, 92 S. Ct. 2294. Further, “if arbitrary and discriminatory enforcement is to be pre- vented, laws must provide explicit standards for those who apply them.” Id. Given the subjective and hy- pothetical language of the statute and its well- documented, inconsistent application by the Board, § 2(a) is void for vagueness under even a lax test for vagueness. But the standard we should apply to § 2(a) is not lax. “The degree of vagueness that the Constitution tolerates . . . depends in part on the nature of the enactment.” Hoffman Estates v. Flipside, Hoff- man Estates, Inc., 455 U.S. 489, 498, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). “[P]erhaps the most im- portant factor affecting the clarity that the Constitu- tion demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech . . . , a more stringent vagueness test should apply.” Id. at 499, 102 S. Ct. 1186. The First Amendment concerns articulated by the majority support application of a “more stringent vagueness test”—one that § 2(a) simply cannot pass. (Dec. 16, 2008); and MESSIAS, In re Sociedade Agricola E. Co- merical Dos Vinhos Messias, S.A.R.L., 159 U.S.P.Q. 275 (T.T.A.B. 1968) (rejected for use on wine and brandy), with IL MESSIA, Registration No. 4,093,035 (accepted for use on wine) (Jan. 31, 2012)). These examples further highlight the subjective nature of the registration standard under § 2(a): it is an unstable standard that apparently depends on shifting sensibilities over time. 73a a. First Amendment Concerns Require a Strin- gent Vagueness Test As the majority points out, “[i]t is beyond dispute that § 2(a) discriminates on the basis of content.” Maj. Op. 1335. “[T]he test for disparagement— whether a substantial composite of the referenced group would find the mark disparaging—makes clear that it is the nature of the message conveyed by the speech which is being regulated. If the mark is found disparaging by the referenced group, it is denied reg- istration.” Id. at 1335. Indeed, the problems with § 2(a) are more substantial than the majority even acknowledges—not only is a trademark’s registrability adjudged by the message it conveys, but the message conveyed is adjudged by the potential sensibilities of a broad range of potential listeners. Under First Amendment principles, “content-based regulation of speech . . . raises special First Amendment concerns because of its obvious chilling effect on free speech.” Reno v. ACLU, 521 U.S. 844, 872, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997). Indeed, “[b]road prophylactic rules in the area of free expres- sion are suspect. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” Edenfield v. Fane, 507 U.S. 761, 777, 113 S. Ct. 1792, 123 L. Ed. 2d 543 (1993) (internal quotation marks omitted) (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963)). The Supreme Court’s emphasis on precision for content-based regulations is premised on its under- standing of at least two connected but discrete due process concerns: first, that regulated parties should 74a know what is required of them so they may act ac- cordingly; second, precision and guidance are nec- essary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence to those require- ments is necessary to ensure that ambiguity does not chill protected speech. FCC v. Fox Television Stations, Inc., — U.S. —, 132 S. Ct. 2307, 2317, 183 L. Ed. 2d 234 (2012) (citing Grayned, 408 U.S. at 108-109, 92 S. Ct. 2294). b. Section 2(a) is Void for Vagueness Section 2(a)’s undeniable chilling effect on speech requires it to pass a “more stringent test” for vague- ness in order to pass constitutional muster. Hoff- man, 455 U.S. at 498, 102 S. Ct. 1186. Recognizing that due process vagueness challenges are more diffi- cult to sustain where civil regulation—as distinct from criminal penalty provisions—are at issue, I believe § 2(a)’s inherent ambiguity makes it difficult for would- be applicants to discern its boundaries and leads to in- consistent and unreliable actions on the part of the government as it seeks to regulate on the basis of con- tent. First, the imprecise, content-based regulation of trademark registration affects the types of marks sought by would-be registrants. “Vague laws force potential speakers to “ ‘steer far wider of the unlawful zone” . . . than if the boundaries of the forbid- den areas were clearly marked.’ ” Brown v. Entm’t Merchants Ass’n, — U.S. —, 131 S. Ct. 2729, 2743, 180 L. Ed. 2d 708 (2011) (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964)). 75a The majority opinion rightly concludes that, given the Board’s inconsistency, “the public would have a hard time drawing much reliable guidance.” Maj. Op. 1342. The “uncertainty of speech-affecting standards has long been recognized as a First Amendment prob- lem,” and the uncertainty inherent in § 2(a) “contrib- utes significantly to the chilling effect on speech.” Maj. Op. 1342.2 Next, the absence of clear standards for the appli- cation of § 2(a) provides the government with virtually unlimited ability to pick and choose which marks to allow and which to deny. And neither § 2(a) itself nor the TMEP’s two-step test provides the PTO, the courts, or the public with any certainty as to what may disparage a given subset of any given population or group of believers. That is simply inadequate under the Fifth Amendment. See Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 588, 118 S. Ct. 2168, 141 L. Ed. 2d 500 (1998) (“Under the First and Fifth Amendments, speakers are protected from arbitrary and discriminatory enforcement of vague standards.”); Grayned, 408 U.S. at 108-09, 92 S. Ct. 2294 (1972) (“[I]f 2 Numerous amici have come to the same conclusion. See, e.g., Br. for First Amendment Lawyers Ass’n as Amicus Curiae 14 (“The multitude of Section 2(a) cases show that Section 2(a) does not convey ‘sufficiently definite warning as to the proscribed con- duct when measured by common understanding and practices,’ as required by the Constitution.” (quoting Roth v. United States, 354 U.S. 476, 491, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957))); Br. for Pro-Football, Inc. as Amicus Curiae 33 n.13 (“Even if Section 2(a) sought to advance a legitimate state interest, its language is imper- missibly vague to advance that interest. The statute provides no guidance as to which trademarks will be deemed disparaging, scan- dalous, or immoral.”). 76a arbitrary and discriminatory enforcement is to be pre- vented, laws must provide explicit standards for those who apply them. A vague law impermissibly dele- gates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discrimi- natory application.”) (footnotes omitted). Cf. Kolen- der v. Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) (noting in the context of a criminal penalty scheme that, although the vagueness doctrine “focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’ Where the legislature fails to provide such minimal guidelines, a criminal statute may permit ‘a standard- less sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’ ” (quo- ting Smith v. Goguen, 415 U.S. 566, 574, 575, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974))). Other circuits to have considered the use of the sub- jective terms connoting insult—like disparagement— have expressed similar concerns about the absence of objective standards governing their application. In Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), for example, the Sixth Cir- cuit considered the discriminatory harassment policy of Central Michigan University (“CMU”). That poli- cy defined racial and ethnic harassment as: any intentional, unintentional, physical, verbal, or nonverbal behavior that subjects an individual to an 77a intimidating, hostile or offensive educational, em- ployment or living environment by . . . (c) de- meaning or slurring individuals through . . . written literature because of their racial or ethnic affiliation; or (d) using symbols, [epithets] or slo- gans that infer negative connotations about the in- dividual’s racial or ethnic affiliation. Id. at 1182 (emphases added). The court found the policy impermissibly vague because it required “one [to] make a subjective reference” and because “differ- ent people find different things offensive.” Id. at 1184. As such, the policy’s enforcement was too tied to subjective reference and, thus, both failed to “pro- vide fair notice” and gave rise to an “unrestricted dele- gation of power” to university officials. Id. See also Wynn Oil Co. v. Purolator Chem. Corp., 536 F.2d 84, 86 (5th Cir. 1976) (finding the subsection of an “injunc- tion which restrains defendants from ‘slandering and disparaging the Wynn Oil Co. and its products’ [to be] impermissively vague”). In Ridley v. Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st Cir. 2004), the First Circuit upheld the validity of the Massachusetts Bay Trans- portation Authority’s (“MBTA”) “guideline prohibiting demeaning or disparaging material,” id. at 93, because, in that case, “there [was] no serious concern about ei- ther notice or chilling effects[] where there [were] no consequences for submitting a non-conforming adver- tisement and having it rejected” id. at 94. But that court specifically distinguished the guidelines at issue—“given the nature of the MBTA’s advertising program and its chief purpose of raising revenue with- out losing ridership,” id. at 94—from “the concern over 78a subjective decision making[, which has the] most effect in government licensing schemes” id. at 95. While the trademark registration scheme is not a traditional public forum making use of a licensing scheme to “maintain basic order,” it implicates the “[e]xcessive discretion and vagueness inquiries under the First Amendment” in much the same way. Id. at 94. As the majority notes, trademark registrants receive sub- stantial benefits from the fact of registration, Maj. Op. 1328-29; denial of those benefits based on the subjec- tive views of governmental employees about the po- tential subjective views of those who might be exposed to the proposed mark is an essentially standardless measure. In McGinley, we found § 2(a)’s ban on scandalous subject matter, “sufficiently precise to enable the PTO and the courts to apply the law fairly and to notify a would-be registrant that the mark he adopts will not be granted a federal registration.” 660 F.2d at 484. While I agree that the PTO is capable of “notify[ing] a would-be registrant” of its decision to deny registra- tion under § 2(a), the law is by no means precise enough to “enable the PTO and the courts to apply [it] fairly.” Id. As the majority points out, the Board has allowed use of a term by one trademark holder while disallowing use of precisely the same term by another based apparently on its view of how use of that term might be received by the audience the Board has chosen to “identify.” Maj. Op. 1336-38. This fact alone evidences the absence of explicit standards for the application of § 2(a). As it turns out, the PTO’s Assistant Commissioner was correct in 1939 in expressing concern that “the 79a word ‘disparage’ . . . is going to cause a great deal of difficulty in the Patent Office, because . . . it is always going to be just a matter of the personal opinion of the individual parties as to whether they think it is disparaging.” Hearing on H.R. 4744 Be- fore the Subcomm. on Trademarks of the H. Comm. on Patents, 76th Cong. 21 (1939) (statement of Leslie Frazer). The Board has likewise commented on the vague and subjective nature of § 2(a). See, e.g., In re In Over Our Heads, 1990 WL 354546, at *1 (T.T.A.B. 1990) (“[T]he 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.”) (bracketing and quotation marks omitted); Harjo v. Pro-Football, Inc., 1999 WL 375907, at *35 (T.T.A.B. 1999) (noting that whether a mark is disparaging “is highly subjective and, thus, general rules are difficult to postulate”). “It is a basic principle of due process that an en- actment is void for vagueness if its prohibitions are not clearly defined.” Grayned, 408 U.S. at 108, 92 S. Ct. 2294. The need for clarity is especially relevant when a law implicates First Amendment rights, as § 2(a) in- disputably does. Section 2(a) does not provide a “per- son of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accord- ingly.” Id. And inconsistent, indeed seemingly rud- derless, application of § 2(a) demonstrates the “arbi- trary and discriminatory enforcement” that occurs when regulations do not “provide explicit standards for those who apply them.” Id. 80a While I agree with the majority’s thoughtful First Amendment analysis, I do not believe it is the only predicate to the conclusion that § 2(a) is unconstitu- tional. CONCLUSION For the above reasons, I concur in the majority’s conclusions and separately concur in the result. DYK, Circuit Judge, concurring in part and dis- senting in part, with whom Circuit Judges LOURIE and REYNA join with respect to parts I, II, III, and IV. The majority is correct that the bar on registration of disparaging marks is unconstitutional as applied to Mr. Tam. But in my view the majority errs in going beyond the facts of this case and holding the statute facially unconstitutional as applied to purely commer- cial speech. It is noteworthy that the majority seeks to justify its sweeping holding by describing § 2(a) as being something it is not. The provision bars the registra- tion of marks that “disparage . . . or bring into contempt, or disrepute.” 15 U.S.C. § 1052(a) (other- wise identified as § 2(a)). The majority repeatedly asserts that “[t]he government enacted § 2(a), and defends it today, because it is hostile to the messages conveyed by the refused marks.”1 Maj. Op. at 1337. 1 The majority frequently characterizes the statute as “discrimi- nat[ing] on the basis of message conveyed” and hence “viewpoint.” Maj. Op. at 1335. “It does so as a matter of avowed and undenia- ble purpose, and it does so on its face.” Id. “Denial of these ben- efits creates a serious disincentive to adopt a mark which the gov- ernment may deem offensive or disparaging.” Id. at 1341. “The entire interest of the government in § 2(a) depends on disapproval 81a In my view, there is nothing in the statute itself or the legislative history that supports this interpretation. On its face, and as interpreted by the Trademark Trial and Appeal Board (“the Board”), the statute is de- signed to preclude the use of government resources not when the government disagrees with a trademark’s message, but rather when its meaning “may be dis- paraging to a substantial composite of the referenced group.” In re Lebanese Arak Corp., 94 U.S.P.Q. 2d 1215, 1217 (T.T.A.B. 2010) (emphasis added). The PTO uses an objective test in making this determina- tion, looking to dictionaries, the relationship of the matter to the other elements of 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. See id.2 Thus the purpose of the statute is to protect un- derrepresented groups in our society from being bombarded with demeaning messages in commercial advertising. The question is whether the statute so designed can survive First Amendment scrutiny. My answer is that the statute is constitutional as applied of the message.” Id. at 1355. “All of the government’s proffered interests boil down to permitting the government to burden speech it finds offensive.” Id. at 1357. 2 To be sure, the Board may have rendered inconsistent results in some cases, but this has no bearing on the facial validity of § 2(a). See, e.g., Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587, 118 S. Ct. 2168, 141 L. Ed. 2d 500 (1998); Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 396, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969). In any event, when the government is not acting in its sovereign, regulatory capacity, “the consequences of imprecision are not con- stitutionally severe.” Finley, 524 U.S. at 589, 118 S. Ct. 2168. 82a to purely commercial trademarks, but not as to core political speech, of which Mr. Tam’s mark is one ex- ample. Ultimately, unlike the majority, I do not think that the government must support, or society tolerate, disparaging trademarks in the name of commercial speech. The majority’s opinion not only invalidates the bar on disparaging marks in § 2(a) but may also effectively invalidate the bar on scandalous marks and the analogous provisions of the Model State Trade- mark Act. See 1964 Model State Trademark Act, § 2(b). The government need not support the inevi- table consequence of this decision—“the wider regis- tration of marks that offend vulnerable communities.” Maj. Op. at 1357-58. I As the majority notes, the Supreme Court has long recognized the protection of offensive speech that con- stitutes core political expression. “The right to free speech . . . may not be curtailed simply because the speaker’s message may be offensive to his audi- ence.” Hill v. Colorado, 530 U.S. 703, 716, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000). Underpinning the First Amendment’s protection of core speech that is disparaging is the fundamental constitutional value of preserving an “uninhibited marketplace of ideas in which truth will ultimately prevail,” a marketplace that provides “suitable access to social, political, esthetic, moral, and other ideas and experiences.” Red Lion, 395 U.S. at 390, 89 S. Ct. 1794. Integral to an “unin- hibited marketplace of ideas” is the ability to incite debate. “[A] principal function of free speech under our system of government is to invite dispute. It may 83a indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with condi- tions as they are, or even stirs people to anger.” Texas v. Johnson, 491 U.S. 397, 408-09, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). Thus to maintain a “mean- ingful dialogue of ideas,” “we must tolerate insulting, and even outrageous, speech in order to provide ade- quate breathing space to the freedoms protected by the First Amendment.” Snyder v. Phelps, 562 U.S. 443, 452, 458, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011) (internal quotation marks, citations, and alterations omitted).3 At bottom, as Justice Holmes described, in the core speech area the First Amendment enshrines the “principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” U.S. v. Schwimmer, 279 U.S. 644, 654-55, 49 S. Ct. 448, 73 L. Ed. 889 (1929) (Holmes, J., dissenting). But this principle simply does not apply in the com- mercial context. For example, it is well established that racially or sexually disparaging speech in the workplace, when severe, may constitute a violation of Title VII, either as harassment or the creation of a hostile work environment. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998); Rodgers v. Western- Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993). 3 See also, e.g., Cohen v. California, 403 U.S. 15, 25, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971); Hess v. Indiana, 414 U.S. 105, 107, 94 S. Ct. 326, 38 L. Ed. 2d 303 (1973); Denver Area Educ. Telecomm. Consortium, Inc. v. F.C.C., 518 U.S. 727, 753-54, 116 S. Ct. 2374, 135 L. Ed. 2d 888 (1996). 84a The same is necessarily true in the context of federal public accommodations law governing commercial es- tablishments. No case of which I am aware suggests that imposing liability for disparaging speech in those commercial contexts, even when separated from con- duct, violates the First Amendment. So too in the area of commercial speech race or sex disparagement can claim no First Amendment protec- tion. Unlike core political expression, the “extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides.” Zauderer v. Of- fice of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651, 105 S. Ct. 2265, 85 L. Ed. 2d 652 (1985). Its constitutional protection derives not from any dialogic function in the marketplace of ideas, but rather from its “informational function” in the marketplace of goods and services, Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 563, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980), in other words, “who is producing and selling what product, for what reason, and at what price.” Va. State Bd. Of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 765, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976); see also Sorrell v. IMS Health Inc., — U.S. —, 131 S. Ct. 2653, 2673-74, 180 L. Ed. 2d 544 (2011) (Breyer, J., dissenting). We protect the dissemination of this information to ensure that “pri- vate economic decisions” are “intelligent and well in- formed.” Va. State Bd. Of Pharmacy, 425 U.S. at 765, 96 S. Ct. 1817. 85a Speech proposing a commercial transaction is “an area traditionally subject to government regulation.” 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 499, 116 S. Ct. 1495, 134 L. Ed. 2d 711 (1996) (citing and quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 98 S. Ct. 1912, 56 L. Ed. 2d 444 (1978)). The Court has “been careful to distinguish commercial speech from speech at the First Amendment’s core,” Florida Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995), recognizing the “commonsense distinctions that exist between com- mercial and noncommercial speech.” 44 Liquormart, 517 U.S. at 502, 116 S. Ct. 1495 (quoting Virginia Bd. of Pharmacy, 425 U.S. at 771 n.24, 96 S. Ct. 1817). The “greater objectivity” and “greater hardiness” of commercial speech and the different constitutional values underlying its protection “likely diminish[] the chilling effect that may attend its regulation.” 44 Liquormart, 517 U.S. at 499, 116 S. Ct. 1495 (internal quotation marks and citations omitted). Accordingly, the Court has explained that “the State may regulate some types of commercial advertising more freely than other forms of protected speech,” id. at 498, 116 S. Ct. 1495 (internal quotations marks and citations omitted), and “the State may at times prescribe what shall be orthodox in commercial advertising,” Hurley v. Irish- American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995) (internal quotation marks and citations omitted) —something it could never do with core political speech. Recognizing the more limited protection of com- mercial speech, the Court has repeatedly upheld reg- 86a ulations “protect[ing] consumers from misleading, de- ceptive, or aggressive sales practices,” because such regulations are “consistent with the reasons for ac- cording constitutional protection to commercial speech” in the first place. 44 Liquormart, 517 U.S. at 501, 116 S. Ct. 1495; see also, e.g., Florida Bar, 515 U.S. 618, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981); Bates v. State Bar of Ariz., 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977). “There can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity.” Central Hudson, 447 U.S. at 563, 100 S. Ct. 2343. This stands in stark contrast to core political speech, for which “constitutional protection does not turn upon ‘the truth . . . of the ideas and beliefs which are offered.’ ” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) (quoting NAACP v. Button, 371 U.S. 415, 445, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963)). “The erroneous state- ment is inevitable in free debate, and [] it must be protected [absent a showing of actual malice] if the freedoms of expression are to have the breathing space that they need to survive.” Id. at 271-72, 84 S. Ct. 710 (internal quotation marks, citations, and alterations omitted). “Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth.” N.Y. Times, 376 U.S. at 271, 84 S. Ct. 710. See also Hus- tler Magazine, Inc. v. Falwell, 485 U.S. 46, 52, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988). 87a To be sure, the Court has held that commercial ad- vertising cannot be restricted just because the product or service may be offensive to some members of the audience. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983); Carey v. Population Servs. Int’l, 431 U.S. 678, 701, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977). But, at the same time, the Court has explained that the man- ner of advertising itself may be restricted to protect the audience’s privacy interests. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 630, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995). “[T]he existence of [First Amendment] protection does not deprive the State of all power to regulate such advertising in order to mini- mize its offensiveness.” Bolger, 463 U.S. at 84, 103 S. Ct. 2875 (1983) (Stevens, J., concurring) (citing and quoting from Carey, 431 U.S. at 716, 97 S. Ct. 2010 (Stevens, J., concurring)). For example, in Florida Bar the Court upheld a ban on lawyer advertising targeted to recent accident vic- tims and their families. 515 U.S. at 634-35, 115 S. Ct. 2371. There the Court distinguished Bolger, which rejected a total ban on advertising related to contra- ceptives, because the government’s interest in Bolger had been only to shield citizens from generally “offen- sive” and “intrusive” products. See id. at 630-31, 115 S. Ct. 2371. That interest, the Court explained, was entirely different from the interest in “protecting the personal privacy and tranquility of [Florida’s] citizens from crass commercial intrusion by attorneys upon their personal grief in times of trauma.” Id. at 630, 115 S. Ct. 2371 (alterations omitted). The Court thus had “little trouble crediting the Bar’s” “privacy-based” 88a interest as “substantial,” and held that it was sufficient to justify the advertising ban. Id. at 625, 629, 635, 115 S. Ct. 2371. Disparagement as defined by the Board “is essen- tially a violation of one’s right of privacy—the right to be let alone from contempt or ridicule.” TMEP § 1203.03(b). While in the trademark context the dis- semination of the disparaging material is not limited to the disparaged group, the disparaged group is none- theless targeted in the sense that it is singled out for ridicule. Furthermore, the fact that the dissemina- tion of the disparaging advertising is not limited to the disparaged group makes the government’s interest here all the greater—the effect on the disparaged group is amplified, not lessened, by disseminating the disparaging material to the public at large. This well-recognized disparity in the types of re- strictions that are permissible as applied to commer- cial as opposed to political speech derives from the very different constitutional values underlying their protection in the first place. The Court has recog- nized that the government has greater authority to “distinguish between the relative value of different categories of commercial speech” than of noncommer- cial speech. Metromedia, 453 U.S. at 514, 101 S. Ct. 2882. Specifically, the government has a distinct and substantial interest in “proscribing intrusive and un- pleasant formats” for commercial expression. Mem- bers of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 806, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984); see also Lehman v. City of Shaker Heights, 418 U.S. 298, 304, 94 S. Ct. 2714, 41 L. Ed. 2d 770 (1974); 89a Metromedia, 453 U.S. at 514, 101 S. Ct. 2882. Indeed, “it may not be the content of the speech, as much as the deliberate ‘verbal or visual assault,’ that justifies proscription.” Hill, 530 U.S. at 716, 120 S. Ct. 2480 (quoting Erznoznik v. Jacksonville, 422 U.S. 205, 210-11, n.6, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975)). Unlike core political speech, where offensiveness or disparagement has recognized value in its tendency to provoke debate, disparagement in commercial adver- tising furthers no First Amendment value. Indeed, neither counsel at oral argument nor the majority in its opinion has identified any First Amendment value served by disparaging speech in the commercial con- text. Thus even blanket bans on commercial speech may be the kind of consumer protective regulations that are consistent with the “informational function” of commercial advertising. See Central Hudson, 447 U.S. at 563, 100 S. Ct. 2343. The majority, apparently recognizing that purely commercial speech is entitled to lesser protection, urges that all disparaging trademarks deserve height- ened First Amendment protection because they have an expressive component. See Maj. Op. at 1337-38. While I agree that some marks, including Mr. Tam’s, have an expressive component, it would seem beyond debate that many do not, as is the case with respect to routine product identifiers. Indeed, the Supreme Court confirmed the lack of an expressive component in most trade names in Friedman v. Rogers, where it explicitly distinguished between advertisements that “editorialize on any subject, cultural, philosophical, or political,” which might be entitled to greater First 90a Amendment protection, and the “mere solicitation of patronage implicit in a trade name,” which “is a form of commercial speech and nothing more.” 440 U.S. 1, 11, n.10, 99 S. Ct. 887, 59 L. Ed. 2d 100 (1979). The Court again recognized this distinction in S.F. Arts & Athletics Inc. v. U.S. Olympic Comm’n, 483 U.S. 522, 535, 107 S. Ct. 2971, 97 L. Ed. 2d 427 (1987). “To the extent that [the statute] applies to uses for the purpose of trade [or] to induce the sale of any goods or ser- vices, its application is to commercial speech.” Id. (alterations omitted). In short, many trademarks lack the kind of “ex- pressive character” that would merit First Amend- ment protection for offensive content, and a regulation of the use of those marks could satisfy the Central Hudson test for commercial speech—a substantial government interest reflected in a narrowly tailored regulation. The majority’s contrary conclusion seems to me to be unsupported. II Even if disparaging commercial speech were pro- tected from government ban or regulation, this case does not turn on the legitimacy of a regulation or a “blanket ban” on disparaging commercial speech. The refusal to register disparaging marks is not a reg- ulation or “blanket ban” on anything. Rather, it in- volves the denial of a subsidy, and because it is a sub- sidy, it may be content based. It is “well established that the government can make content-based distinc- tions when it subsidizes speech.” Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 188-89, 127 S. Ct. 2372, 168 L. Ed. 2d 71 (2007). The First Amendment “does not 91a confer an affirmative right to use government [] mechanisms for the purpose of ” expression, nor is the government “required to assist others in funding the expression of particular ideas, including political ones.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355, 358, 129 S. Ct. 1093, 172 L. Ed. 2d 770 (2009) (in- ternal quotations and citations omitted). Significant- ly, every single Supreme Court decision upholding the protection of commercial speech has involved a prohi- bition or restriction of speech—not a subsidy.4 That trademark registration is a subsidy is not open to doubt. Contrary to the majority’s characterization, federal trademark registration is not a “regulatory regime.” Maj. Op. at 1353. Section 2(a) does not regulate any speech, much less impose a blanket ban. It merely deprives a benefit. The majority claims that federal trademark registration is not a subsidy because “the subsidy cases have all involved govern- ment funding or government property.” Maj. Op. at 1351. But this assertion is belied by the Court’s re- cent decisions in Davenport and Ysursa—neither in- 4 See, e.g., Linmark Assocs., Inc. v. Twp. of Willingboro, 431 U.S. 85, 97, 97 S. Ct. 1614, 52 L. Ed. 2d 155 (1977) (striking down a ban on placing “For Sale” and “Sold” signs on residential property); Carey, 431 U.S. at 701-02, 97 S. Ct. 2010 (invalidating a ban on all advertising and display of contraceptives); Bolger, 463 U.S. at 71, 103 S. Ct. 2875 (invalidating a ban on unsolicited mailing of contra- ceptive advertisements); Va. State Bd. of Pharmacy, 425 U.S. at 773, 96 S. Ct. 1817 (invalidating a ban on advertising prescription drug prices); Sorrell v. IMS Health Inc., — U.S. —, 131 S. Ct. 2653, 2659, 180 L. Ed. 2d 544 (2011) (invalidating a state law that prohib- ited the sale, disclosure, and use of pharmacy records without the prescriber’s consent and subject to limited exceptions). 92a volving government funding or property. Each made clear that the government can make content-based dis- tinctions when it provides a benefit. In Davenport, the Court considered a government benefit that gave unions “the power, in essence, to tax government employees,” by having the state collect fees from its employees on behalf of the unions. Davenport, 551 U.S. at 184, 127 S. Ct. 2372. The state limited this collection mechanism by refusing to collect nonmember fees for election-related purposes unless the nonmember affirmatively consented. Id. at 180, 127 S. Ct. 2372. The unions argued that this restric- tion was an unconstitutional content-based discrimina- tion. Id. at 188, 127 S. Ct. 2372. The Court disa- greed. The First Amendment’s usual aversion to content-based speech regulation is inapposite when “the government is acting in a capacity other than as regulator,” such as “when it subsidizes speech.” Id. at 188, 127 S. Ct. 2372. Because the collection of non- member fees was a “state-bestowed entitlement,” “a matter of grace [that] [it] can, of course, disallow . . . as it chooses,” Regan v. Taxation With Rep- resentation of Wash., 461 U.S. 540, 549, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) (internal quotations and citations omitted), the content-based condition on that benefit did not raise a “realistic possibility that official suppression of ideas is afoot.” Davenport, 551 U.S. at 189-90, 127 S. Ct. 2372 (citations and quotation marks omitted). The unions remained “as free as any other entity to participate in the electoral process with all available funds other than the state-coerced agency fees.” Id. at 190, 127 S. Ct. 2372. Thus the Court declined to apply heightened scrutiny and upheld the 93a restriction in light of the state’s “narrow” and legiti- mate interest in “protect[ing] the integrity of the elec- tion process.” See id. at 189-90, 127 S. Ct. 2372. In Ysursa, the Court considered a similar benefit where the state collected dues on behalf of unions by providing payroll deductions. Ysursa, 555 U.S. at 355, 129 S. Ct. 1093. The state restricted that collec- tion mechanism by preventing unions from using pay- roll deductions for any political purposes. Id. Again the unions argued that this restriction was an imper- missible content-based speech restriction, and again the Court disagreed. The First Amendment “pro- tects the right to be free from government abridge- ment of speech,” not the right to be “assist[ed] [] in funding the expression of particular ideas.” Id. at 358, 129 S. Ct. 1093. “While publicly administered payroll deductions for political purposes can enhance the unions’ exercise of First Amendment rights, Idaho is under no obligation to aid the unions in their politi- cal activities.” Id. at 359, 129 S. Ct. 1093. Because collecting payroll deductions was a government bene- fit, the State’s decision not to extend that benefit was “not an abridgement of the unions’ speech.” Id. As in Davenport, the unions remained “free to engage in such speech as they see fit. They simply are barred from enlisting the State in support of that endeavor.” Id. Thus the Court again declined to apply height- ened scrutiny and upheld the regulation in light of the “government’s interest” in “avoiding the reality or ap- pearance of government favoritism.” Id. The same is true here. Federal trademark regis- tration, like the state-bestowed collection mechanisms 94a for unions in Davenport and Ysursa, is a government- bestowed collection mechanism for enforcing trade- marks. It opens the federal courts to enforce trade- mark rights by providing, inter alia, original jurisdic- tion in federal courts for infringement claims, eligibil- ity for treble damages for willful infringement, the ability to petition Customs to prevent the importation of infringing articles, and various enhanced protections for marks. See 15 U.S.C. §§ 1057(c), 1141, 1117, 1124. These benefits all “enlist” the government in support of the mark holder’s commercial identification, much like the collection of nonmember fees in Davenport and the payroll deductions in Ysursa enlisted the states in support of the unions’ political speech. See Ysursa, 555 U.S. at 359, 129 S. Ct. 1093. Just as the states were not obligated to enable labor unions to collect nonmember fees or take payroll deductions in the first place, the federal government is not obligated to pro- vide these benefits of a trademark enforcement mech- anism. And just as the unions remained free to speak for election-related purposes using all other funds, trademark holders remain free to use their marks— however disparaging—as far as the federal govern- ment is concerned.5 That states may deny state-law protection to these marks cannot make the denial of the federal subsidy any less constitutional. Finally, the majority argues that § 2(a) should be treated as a regulatory provision because the denial of registration benefits will have a chilling effect on the 5 That alternative federal enforcement under 15 U.S.C. § 1125(a) is potentially available to denied applicants only bolsters this point. See Maj. Op. at 1344-45 n.11. 95a use of disparaging marks and cause mark holders to abandon such marks. See Maj. Op. at 1342-43. But that is commonly the effect of the denial of subsidies, as the Supreme Court has recognized. See Regan, 461 U.S. at 550, 103 S. Ct. 1997 (“Although TWR does not have as much money as it wants, and thus cannot exercise its freedom of speech as much as it would like,” the decision not to subsidize its speech does not violate the First Amendment). A chilling effect does not turn a subsidy provision into a regulatory provi- sion, so long as the subsidy is not designed to limit speech outside of the subsidized program. That is not the case here. “[T]he relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program—those that spe- cify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., — U.S. —, 133 S. Ct. 2321, 2328, 186 L. Ed. 2d 398 (2013) (“AID”). An example of such impermissi- ble leverage was found in FCC v. League of Women Voters, where federal funds were denied to public broadcasters if they engaged in editorializing. 468 U.S. 364, 399-401, 104 S. Ct. 3106, 82 L. Ed. 2d 278 (1984). The restriction was invalidated because it af- fected editorializing engaged in without federal funds. Id. Section 2(a) is not designed to limit speech out- side of the federal trademark program. Accordingly, 96a it does not run afoul of the unconstitutional conditions doctrine.6 See id. The majority’s contrary arguments are the very arguments rejected in the Supreme Court’s recent decision in AID. See 133 S. Ct. at 2328. AID explic- itly disclaimed the majority’s assertion that the condi- tion must be limited to “advancing the goals underly- ing the program the government seeks to fund.” Maj. Op. at 1354. The question is not whether “the condi- tion is [] relevant to the objectives of the program,” but rather whether the condition “seek[s] to leverage funding to regulate speech outside the contours of the program itself,” which the restriction here does not. AID, 133 S. Ct. at 2328. Similarly, in Regan the Court upheld a requirement that nonprofit organiza- tions seeking tax-exempt status under 26 U.S.C. § 501(c)(3) not engage in lobbying. 461 U.S. at 544, 103 S. Ct. 1997. The Court upheld that condition not because it was related in some way to the “goals” of 501(c)(3) tax exemption, but rather because “the con- dition did not prohibit that organization from lobbying Congress” with separate funds, i.e., it did not leverage funds outside of the nonprofit structure. Id. at 2329. 6 Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 503 (9th Cir. 1988), Dep’t of Tex., Veterans of Foreign Wars v. Tex. Lottery Comm’n, 760 F.3d 427, 430 (5th Cir. 2014) (en banc), and Autor v. Pritzker, 740 F.3d 176, 177 (D.C. Cir. 2014), relied on by the majority, Maj. Op. at 1351-53, are all inapposite. In all three cases, the govern- ment was attempting to leverage speech outside of the “contours” of its defined program, thus running afoul of the unconstitutional conditions doctrine. Here, on the other hand, no expression be- yond the trademark is suppressed, and therefore no unconstitution- al condition obtains. 97a The majority’s arguments fail to show a colorable vio- lation of the unconstitutional conditions doctrine here. III The majority urges, however, that subsidies require viewpoint neutrality, and argues that the subsidy pro- vided by § 2(a) discriminates based on viewpoint be- cause favorable racial and other marks are allowed while disparaging ones are not. See Maj. Op. at 1336-38. Contrary to the majority, the Supreme Court has never held that this kind of subsidy must be viewpoint neutral. The question was raised, but not answered, in Davenport and Ysursa. See Davenport, 551 U.S. at 189, 127 S. Ct. 2372 (“Even if it be thought necessary that the content limitation be reasonable and viewpoint neutral . . . ”); Ysursa, 555 U.S. at 361, n.3, 129 S. Ct. 1093. And the Court has upheld subsidies that were facially viewpoint discriminatory. See, e.g., Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991) (upholding a condition limiting Title X funding to clinics that do not advocate abortion as a method of family planning). The Court made an exception in a subsidy case involving the unique context of legal services, where “the traditional role of the [subsidized] attorneys” is to “speak[] on the behalf of his or her private, indigent client” and view- point discrimination undermined the very purpose of the subsidy. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 542, 544, 121 S. Ct. 1043, 149 L. Ed. 2d 63 (2001). There is no tradition of unfettered advocacy in commercial advertising. Thus even if the regula- tion here could be deemed viewpoint discriminatory, it 98a would not fail under the First Amendment. See Dav- enport, 551 U.S. at 189, 127 S. Ct. 2372. But § 2(a) is in any event viewpoint neutral. In Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988), the Court addressed a nearly identical standard as applied to core political speech. The law there prohibited the display of any sign within 500 feet of a foreign embassy if the sign would tend to bring that foreign government into “public odium” or “dis- repute.” Id. at 315, 108 S. Ct. 1157. Justice O’Con- nor’s plurality opinion confirmed that the restriction is “content-based,” but it specifically found that “the provision is not viewpoint based.” Id. at 319, 108 S. Ct. 1157 (emphasis added). “The display clause determines which viewpoint is acceptable in a neutral fashion by looking to the policies of foreign govern- ments.” Id. (emphasis added). This “prevents the display clause from being directly viewpoint based, a label with potential First Amendment ramifications of its own.” Id. This aspect of the plurality opinion has since been cited with approval by a majority of the Court in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 645, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994). The same reasoning applies here. Just as the restriction in Boos operated in a “neutral fashion” by looking only to foreign governments, the bar on registration of disparaging marks operates in a “neu- tral fashion” by looking only to the views of the refer- enced group. Accordingly, just as the restriction in Boos was viewpoint neutral, so too is § 2(a). In Rid- ley v. Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st Cir. 2004), the First Circuit arrived at the same conclusion, holding that a regulation “pro- 99a hibit[ing] demeaning or disparaging ads” was view- point neutral because “the state is not attempting to give one group an advantage over another in the mar- ketplace of ideas.” Id. at 90-91. Finding § 2(a) to be viewpoint neutral is consistent with the Court’s treatment of viewpoint discrimination in other areas. The Court has defined viewpoint dis- crimination as the government’s disagreement with the underlying “ideology,” “opinion” or “perspective of the speaker.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995). Here, as in Boos, the standard is not based on the government’s disagreement with anything. Rather, it is based on an objective, “neu- tral” assessment of a non-government perspective—in this case, a “substantial composite of the referenced group.” As in Davenport and Ysursa, there is no “realistic possibility that official suppression of ideas is afoot,” Davenport, 551 U.S. at 190, 127 S. Ct. 2372 and the content-based regulation here is not subject to heightened First Amendment scrutiny. IV Even in subsidy cases, however, the government needs some interest sufficient to justify its regulation defined in terms of “reasonableness.” See Ysursa, 555 U.S. at 359, 129 S. Ct. 1093; Regan, 461 U.S. at 550, 103 S. Ct. 1997. In my view, the protection of disparaged groups is sufficient. As demonstrated on college campuses across the nation, members of some groups, whether or not justified, are particularly sen- 100a sitive to disparaging material.7 There is significant social science evidence demonstrating the harmful psychological effects of holding a minority group up for ridicule on a national stage, particularly on chil- dren and young adults.8 In the case of core protected speech, as discussed above, the government has no legitimate interest in protecting disparaged groups. The groups must tolerate the disparagement in pursuit of the greater goal of a free marketplace of ideas. But, as discussed above, commercial speech is differ- ent. Disparagement as defined by the Board “is es- sentially a violation of one’s right of privacy—the right to be let alone from contempt or ridicule.” TMEP § 1203.03(c). The government has an interest in “proscribing in- trusive and unpleasant formats” for commercial ex- pression. Taxpayers for Vincent, 466 U.S. at 806, 104 S. Ct. 2118; see also Lehman, 418 U.S. at 304, 94 S. Ct. 2714; Metromedia, 453 U.S. at 514, 101 S. Ct. 2882. The Supreme Court’s “precedents [] leave no room for doubt that the protection of potential clients’ privacy is 7 See, e.g., Chuck Culpepper, How Missouri foot-ball’s boy- cott helped bridge a familiar campus divide, Wash. Post (Nov. 13, 2015), https://www.washingtonpost.com/sports/colleges/how missouri-footballs-boycott-helped-unite-a-troubled-campus/2015/11 /13/64fe68ea-8a0f-11e5-be8b-1ae2e4f50f 76-story.html. 8 See, e.g., American Psychological Ass’n, APA Resolution Rec- ommending the Immediate Retirement of American Indian Mas- cots, Symbols, Images, and Personalities by Schools, Colleges, Universities, Athletic Teams, and Organizations (2011), available at http://www.apa.org/about/policy/mascots.pdf (citing many stud- ies finding psychological harm of exposure to negative stereo- types). 101a a substantial state interest.” Florida Bar, 515 U.S. at 625, 115 S. Ct. 2371 (internal quotations marks omit- ted). We need not decide whether this interest is suf- ficiently compelling to justify a ban of disparaging commercial speech. It is more than sufficient to jus- tify the government’s “decision not to assist” dispar- aging commercial expression. Ysursa, 555 U.S. at 360 n.2, 129 S. Ct. 1093; Taxpayers for Vincent, 466 U.S. at 806, 104 S. Ct. 2118. At the same time, there is no countervailing First Amendment interest. It is certainly difficult to imagine, for example, how the disparaging elements of an advertisement such as “CHLORINOL SODA BLEACHING—we are going to use Chlorinol and be like de white nigger,”9 or “The Plucky Little Jap Shredded Wheat Biscuit,”10 or “Dr. Scott’s Electric Hair Brush—will not save an Indian’s scalp from his enemies but it will preserve yours from dandruff,”11 further any legitimate “informational function” associated with the relevant product. V Finally, contrary to the majority’s implication, it is quite feasible to distinguish between core and com- mercial speech. Congress has already determined 9 Julian Casablancas, 15 Shockingly Racist Vintage Ads, Busi- ness Pundit (Dec. 17, 2012), http://www.businesspundit.com/15- shockingly-racist-vintage-ads/?img=42884. 10 Dan Beard, 24 Recreation 1 (1905) available at https://books. google.com/books?id=LPQXAAAAYAAJ&pg=PA474-IA18#v= onepage&g&f=false. 11 Brian D. Behnken & Gregory D. Smithers, Racism in Ameri- can Popular Media: From Aunt Jemima to the Frito Bandito 39 (2015). 102a that trademark law should distinguish between pure commercial speech and fully protected speech. Sec- tion 1125(c)(3) of title 15 excludes from liability for dilution parody, criticism, and any noncommercial use of a mark. And the noncommercial use of a mark, for parody, as an example, weighs against likelihood of confusion. See, e.g., Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989); Davis v. Walt Disney Co., 430 F.3d 901 (8th Cir. 2005); see also Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Group, Inc., 886 F.2d 490, 494-95 (2d Cir. 1989) (“the expressive elements of titles require[] more protection than the labeling of ordinary commercial products . . . so here the expressive element of parodies requires more protection than the labeling of ordinary products.”). Congress has made a similar judgment in the copyright context. See 17 U.S.C. § 107 (one of four fair use factors includes as- sessing whether the use is commercial). I see no reason why the Board would be unable to make such distinctions here. VI Turning from the application of § 2(a) to commercial speech to the facts of this case, I agree with the ma- jority that the bar on registration of disparaging marks is unconstitutional as applied to Mr. Tam. Here there can be no doubt that Mr. Tam’s speech is both political and commercial. Unlike Friedman, where the trade name proponent did “not wish to edi- torialize on any subject, cultural, philosophical, or political,” 440 U.S. at 11, 99 S. Ct. 887, Mr. Tam’s choice of mark reflects a clear desire to editorialize on cultural and political subjects. Mr. Tam chose THE 103a SLANTS at least in part to reclaim the negative racial stereotype it embodies: “We want to take on these stereotypes that people have about us, like the slanted eyes, and own them. We’re very proud of being Asian —we’re not going to hide that fact.” In re Simon Shiao Tam, 108 U.S.P.Q. 2d 1305, 2013 WL 5498164 at *2 (T.T.A.B. 2013). See Maj. Op. at 1332 (Mr. Tam “selected the mark in order to ‘own’ the stereotype it represents.”). Given the indisputably expressive character of Mr. Tam’s trademark in this case, the government’s recog- nized interests in protecting citizens from targeted, demeaning advertising and proscribing intrusive for- mats of commercial expression—interests that are suf- ficient to justify the provision as applied to commercial speech—are insufficient to justify application of the provision to Mr. Tam. As discussed, because of the fundamental values underlying the First Amendment’s robust protection of offensive speech that are unique to core political expression, the government cannot justify restricting disparaging trademarks when those marks, like Mr. Tam’s, actually consist of core expres- sion. See, e.g., Snyder, 562 U.S. at 459-61, 131 S. Ct. 1207. Accordingly, because no government interest can justify restricting Mr. Tam’s core speech on the basis of its capacity to injure others, § 2(a) is invalid as applied. This also explains why the majority’s con- cern regarding copyright is misplaced. See, e.g., Maj. Op. at 1354-55. Copyrights, unlike trademarks, prin- cipally cover core protected expression. Thus, as for Mr. Tam, any government interest related to sup- pressing offensive speech would be insufficient to jus- 104a tify a comparable restriction as applied to copyright registration except for commercial advertising. No case before the majority’s opinion today has im- posed an obligation on the government to subsidize of- fensive, commercial speech. As Judge Lourie points out, the bar on registration of disparaging marks is longstanding, and we have previously upheld it in a number of decisions. I see no basis for invalidating it now as applied to commercial speech. I would adhere to those decisions in this respect, and I respectfully dissent. LOURIE, Circuit Judge, dissenting. I join Parts I-IV of Judge Dyk’s concurrence-in- part, dissent-in-part, but I respectfully dissent with respect to the result reached by the majority holding the disparagement provision of § 2(a) unconstitutional as violating the First Amendment. For the following additional reasons, I would affirm the USPTO’s deci- sion refusing to register Mr. Tam’s trademark. First, one wonders why a statute that dates back nearly seventy years—one that has been continuously applied—is suddenly unconstitutional as violating the First Amendment. Is there no such thing as settled law, normally referred to as stare decisis? Since the inception of the federal trademark registration pro- gram in 1905, the federal government has declined to issue registrations of disparaging marks. The Trade- mark Act of 1905 provided specific authority to refuse to register immoral or scandalous marks, see Act of Feb. 20, 1905, ch. 592, 33 Stat. 724; the USPTO refused to register disparaging marks on those grounds before 105a the Lanham Act of 1946 was enacted, which explicitly incorporated a disparagement proscription, see Appel- lee’s En Banc Br. 6. The USPTO’s authority to re- fuse to issue trademark registrations with certain offensive content has thus existed in U.S. law for over one hundred years. As the majority notes, these are not prohibitions that have lain unused and latent for all of those years. The USPTO has been rejecting ap- plications for trademark registrations on this basis throughout this period of time. By finding § 2(a) un- constitutional, we interfere with the long-standing Congressional policy of delegating authority to the USPTO to filter out certain undesirable marks from the federal trademark registration system. We should not further the degradation of civil discourse by overturning our precedent that holds that the First Amendment is not implicated by § 2(a)’s prohibition against disparaging trademarks. In addition, the refusal of the USPTO to register a trademark is not a denial of an applicant’s right of free speech. The markholder may still generally use the mark as it wishes; without federal registration, it simply lacks access to certain federal statutory en- forcement mechanisms for excluding others from con- fusingly similar uses of the mark. Mr. Tam may use his trademark as he likes, whether it be encouraging discussion on or taking ownership of racial slurs, or identifying goods and services with his band. In fact, it seems quite likely that Mr. Tam will continue to use his band name to make a statement regardless of fed- eral registration—the expressive purpose of his mark undoubtedly overshadows the commercial considera- tions. The argument, therefore, that a trademark ap- 106a plicant’s right of free speech has been impaired by the failure of the USPTO to grant a federal registration is unconvincing. Furthermore, it is not entirely clear that a trade- mark, speech. The lack of a federal registration does not alter the informational function of a trademark: disparaging marks may still be used to identify the source of goods or services. The government’s deci- sion to support certain choices and not others will invariably have some discouraging effect, but the gov- ernment does not necessarily violate an individual’s constitutional rights merely by refusing to grant regis- tration and thereby provide additional assistance in the enforcement of trademark rights. Moreover, trademark rights, as amicus Interna- tional Trademark Association informs us, are not lim- ited to those marks deemed registrable by the USPTO. “Section 43(a) of the Lanham Act is available to pro- tect all designations of origin, even—indeed, especially —those that cannot be registered under Section 2(a).” Br. of amicus curiae Int’l. Trademark Ass’n 4. The fear that mark-holders would be left with absolutely no recourse for trademark protection, once an application for federal registration is denied, appears unfounded. Rather, all that is at issue here is the government’s de- cision not to facilitate enforcement with the additional mechanisms attendant to federal registration. The denial of federal trademark registration thus does not deprive the mark-holder of trademark protection be- cause of the content of its mark; the markholder still has trademark rights under the Act in addition to its common law rights. 107a Finally, it has been questioned whether federal reg- istration imparts the “imprimatur” of the federal gov- ernment on a mark, such that registration could be permissibly restricted as government speech. I be- lieve that such action is justified. The USPTO does in fact “publish” trademarks, in the Trademark Official Gazette. Despite being in electronic form, it is still a form of government speech that is partially controlled or affected by government action. The USPTO may also require that a disclaimer of unregistrable compo- nents be included for publication. Moreover, a feder- ally registered mark is usually “stamped” with some indication of government oversight, viz., the use of the ® symbol or a phrase that the mark is registered in the USPTO, giving proof to the public that the gov- ernment has in some sense approved the mark. Without that designation, the markholder cannot take advantage of some of the benefits of federal registra- tion, e.g., constructive notice for damages. Similarly to specialty license plate designs, feder- ally registered trademarks can be identified with two message contexts: one from the provider of goods or services, who has chosen to use a certain mark to link its product or services to itself, and one from the gov- ernment, which has deemed the mark qualified for the federal registration program. The evaluation of dis- paragement is not based on the government’s moral judgment, despite any distaste expressed in its brief- ing for cancelled or applied-for marks; a mark is dis- qualified based only on evidence of its perception by the affected persons. The government action does not include a judgment on the worthiness or the effec- tiveness of the mark; if it did, it might—but not nec- 108a essarily—venture into viewpoint-discrimination terri- tory. And while a trademark alone, as a word placed on private property, is not government speech, once it claims that federally registered status, it becomes more than the private owner’s speech. It is not simp- ly private speech as is the holding of a placard in a parade. In my view, holding the disparagement provision of § 2(a) unconstitutional would be unsound, and the USPTO’s refusal to register Mr. Tam’s disparaging mark should therefore be affirmed. Accordingly, I respectfully dissent. REYNA, Circuit Judge, dissenting. The Majority holds today that Mr. Tam’s speech, which disparages those of Asian descent, is valuable political speech that the government may not regulate except to ban its use in commerce by everyone but Mr. Tam. I believe the refusal to register disparaging marks under § 2(a) of the Lanham Act is an appropri- ate regulation that directly advances the government’s substantial interest in the orderly flow of commerce. Because I would uphold the constitutionality of § 2(a), I respectfully dissent. Trademarks are commercial speech. And precise- ly because trademarks are commercial speech, the government’s decision to grant or deny registration must be reviewed under an intermediate standard of scrutiny. Intermediate scrutiny is satisfied whenever the decision is narrowly tailored to directly advance a substantial government interest. When the commer- cial or political content of a trademark threatens the 109a government’s substantial interest in the orderly flow of commerce, appropriate regulation may be justified. DISCUSSION A. Intermediate Scrutiny Applies Because Trade- marks Are Commercial Speech The Supreme Court has held that trademarks are “a form of commercial speech and nothing more.” Friedman v. Rogers, 440 U.S. 1, 11, 99 S. Ct. 887, 59 L. Ed. 2d 100 (1979); accord San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 563, 107 S. Ct. 2971, 97 L. Ed. 2d 427 (1987). The purpose of a trademark is merely to “propos[e] a commercial transaction” by identifying the source of goods or services. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 562, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). Because “the Constitution accords less protection to commercial speech than to other constitutionally safe- guarded forms of expression,” Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 64-65, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983), the government may regulate the use of trademarks to ensure the orderly flow of com- merce. For example, the government may disallow trade names that create “[t]he possibilities for decep- tion,” even if the names are not untruthful. Fried- man, 440 U.S. at 13, 99 S. Ct. 887. The government may similarly implement a trademark registration program, as it did through the Lanham Act, which pro- vides certain speakers exclusive rights to their chosen marks in commerce. Such regulation is permissible under the First Amendment only because the speech being regulated is commercial and because the gov- 110a ernment has a substantial interest in facilitating com- merce by “insuring that the stream of commercial information flows cleanly as well as freely.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-72, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976). The courts have long recognized that some trade- marks can include expressive elements concerning matters of public interest, and that such trademarks nevertheless remain commercial speech. Historical- ly, commercial speech received no First Amendment protection, see Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S. Ct. 920, 86 L. Ed. 1262 (1942), and the seminal cases bringing commercial speech within the First Amendment’s purview did so, at least in part, because commercial speech often communicates on matters of public interest. Virginia State Bd., 425 U.S. at 764-65, 96 S. Ct. 1817. As the Supreme Court recog- nized in Virginia State Board, “not all commercial messages contain the same or even a very great public interest element,” but “[t]here are few to which such an element, however, could not be added.” Id. The protections of commercial speech are therefore based, at least in part, on the recognition that com- mercial speech is not always entirely commercial, but that it may contain political messages that make the speech “ ‘commercial’ in widely varying degrees.” Bigelow v. Virginia, 421 U.S. 809, 826, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975). For this reason, the Su- preme Court has routinely held that various examples of speech “constitute commercial speech notwith- standing the fact that they contain discussions of im- 111a portant public issues.” Bolger, 463 U.S. at 67, 103 S. Ct. 2875; see also Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989). Put simply, commercial speech does not transform into core political speech with full First Amendment protections simply because it “links a product to a current public debate.” Cent. Hudson, 447 U.S. at 563, 100 S. Ct. 2343. To determine whether speech is commercial, we consider “the nature of the speech taken as a whole.” Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 796, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988). For example, in Bolger, the Supreme Court found that certain pam- phlets were commercial speech, despite containing “discussions of important public issues,” because (1) the speaker conceded that the pamphlets were advertisements, (2) the pamphlets referenced a specif- ic product, and (3) the speaker had an economic moti- vation for mailing the pamphlets. Bolger, 463 U.S. at 66-68, 103 S. Ct. 2875. The Court concluded that “[t]he combination of all these characteristics” sup- ported the conclusion that “the informational pam- phlets are properly characterized as commercial speech.” Id. All three factors from Bolger are necessarily also present in trademarks. Trademarks are used to iden- tify specific products and to advertise the sources of those products. Trademarks, and in particular those federally registered for exclusive use in interstate commerce, are necessarily tools of commerce used 112a with an “economic motive.”1 A trademark is there- fore commercial speech, and as such, it lacks full First Amendment protections, regardless of whether it also includes a political element. The Majority reasons that because the commercial and political elements of trademarks are “inextricably intertwined,” the combined whole must be treated as expressive speech. Maj. Op. at 1339 (citing Riley, 487 U.S. at 796, 108 S. Ct. 2667). But as explained above, commercial speech is frequently intertwined with political elements, and this intertwining does not necessarily alter the essentially commercial character of the speech. Riley, on which the Majority relies, is not to the contrary. Riley only reiterates that “in de- ciding what level of scrutiny to apply” we must con- sider “the nature of the speech taken as a whole.” Riley, 487 U.S. at 796, 108 S. Ct. 2667. The nature of trademarks seeking federal registration for use in in- terstate commerce, when considered as a whole, is in- disputably commercial, not political. Judge Dyk concurs in the result today only because he believes the content of Mr. Tam’s mark is so “in- disputably expressive” that it cannot be regulated un- der the lesser standards applied to commercial speech. Dyk, J., concurring at 1373-74. But if the expressive content of the mark precludes regulation, on what au- 1 The registration of a trademark confers a competitive advan- tage in the marketplace to the owner of the mark. Typically, in trademark disputes, opposition to the registration or use of a cer- tain mark involves the commercial activities of a competitor. In such cases, the interests of both the owner and competitor are fun- damentally commercial in nature. 113a thority may the government grant Mr. Tam the exclu- sive right to use this mark in commerce? Whatever standard of scrutiny protects the content of Mr. Tam’s trademark from government regulation, that same standard must necessarily be overcome by the govern- ment’s substantial interest in the orderly flow of com- merce, or no trademark could issue. B. Intermediate Scrutiny Applies Because Section 2(a) is Content-Neutral The Majority applies strict scrutiny not necessarily because of the expressive content of Mr. Tam’s mark, but because of the government’s supposed purpose of suppressing the political elements of the mark. Maj. Op. at 1337-39. The Majority thus invokes the mod- ern test for content-neutrality, under which the “prin- cipal inquiry” is “whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Rac- ism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989). Under Ward, “[t]he government’s pur- pose is the controlling consideration.” Id. The Supreme Court has endorsed the applicability of this test to commercial speech. Sorrell v. IMS Health Inc., — U.S. —, 131 S. Ct. 2653, 2664, 180 L. Ed. 2d 544 (2011). If this appeal turns on a content-neutrality analysis, we should be clear that the government has never stated that the purpose of § 2(a) is to suppress speech. Only the Majority has advanced this rationale, and it has done so only by default after eliminating all other interests of which it could conceive. I do not think we need to search so hard and so far. The purpose of 114a § 2(a) is the same as the purpose of the Lanham Act as a whole—to promote the orderly flow of commerce. The Lanham Act declares unequivocally that “[t]he intent of this chapter is to regulate commerce.” 15 U.S.C.A. § 1127. In analyzing content-neutrality, an apparently content-based law is nevertheless consid- ered content-neutral if the government’s purpose is not to suppress speech, but to address the harmful secondary effects of that speech. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986); Young v. Am. Mini Theatres, 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976). The Supreme Court has repeatedly applied this “Sec- ondary Effects” doctrine to uphold not only time, place, and manner restrictions on particular types of speech, id. (upholding regulations on the locations of adult businesses), but also regulations on the content of expression itself, see, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000) (upholding ban on fully nude dancing); Barnes v. Glen Theatre, 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991) (same). For example, applying Ward, the Supreme Court upheld a city’s ban on fully nude dancing because the ban was only a minimal burden on speech and was narrowly tailored to ad- vance the “substantial government interest in pro- tecting order and morality.” Barnes, 501 U.S. at 569, 111 S. Ct. 2456. In City of Erie, the Court upheld a nearly identical statute as content-neutral because it did “not attempt to regulate the primary effects of the expression” but rather, “the secondary effects, such as impacts on public health, safety, and welfare.” City of Erie, 529 U.S. at 291, 120 S. Ct. 1382. 115a The Supreme Court has also permitted regulation of speech based on the speech’s effect on commerce. For instance, it was under Ward that the Supreme Court upheld the FCC’s must-carry provisions as content-neutral, despite the provisions’ mandate that cable providers transmit particular types of content. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 647, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994). The Court upheld the must-carry regulations because they fur- thered the substantial government interest in “pro- tecting non-cable households from loss of regular tele- vision broadcasting service.” Id. The Court has also upheld regulations on highly-protected private speech where the government sought to eliminate the sec- ondary effects of that speech on the market for illegal goods. See Osborne v. Ohio, 495 U.S. 103, 110 S. Ct. 1691, 109 L. Ed. 2d 98 (1990). Thus, when a regula- tion’s purpose is to address the secondary effects of certain speech, intermediate scrutiny is appropriate, even if the regulation implicates content. Section 2(a) serves the same substantial govern- ment interest as the Lanham Act as a whole—the orderly flow of commerce. Commercial speech that insults groups of people, particularly based on their race, gender, religion, or other demographic identity, tends to disrupt commercial activity and to undermine the stability of the marketplace in much the same manner as discriminatory conduct. The government’s refusal to promote such speech in commerce is not an effort to suppress free expression, but to mitigate the disruptive secondary effects that a particular type of low-value speech may have when used in a commercial context. Because the government’s purpose is to 116a mitigate these secondary effects on commerce rather than to suppress speech, the regulation is content- neutral and intermediate scrutiny applies. C. Section 2(a) Advances the Substantial Gov- ernment Interest in the Orderly Flow of Com- merce The government’s interest in the orderly flow of commerce is substantial. If it were not, the govern- ment would be powerless to implement a trademark registry because doing so necessarily requires a ban on infringing commercial speech. The government has a substantial interest in regulating “deceptive or misleading” commercial speech, even if that speech is not wholly false, because of the government’s substan- tial interest in “insuring that the stream of commercial information flow cleanly as well as freely.” Virginia State Bd. of Pharmacy, 425 U.S. at 771, 96 S. Ct. 1817. The Supreme Court has never held, however, that deceptive and misleading speech is the only type of commercial speech subject to regulation for its disrup- tive effect. See Cent. Hudson, 447 U.S. at 566, 100 S. Ct. 2343 (“For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.”) (emphasis added). Instead, any speech that substantially undermines the orderly flow of commerce may potentially be subject to at least some regulation. The marketplace of ideas differs dramatically from the marketplace of goods and services. While the marketplace of ideas may tolerate or even benefit from the volatility that accompanies disparaging and in- sulting speech, the marketplace of goods and services 117a is a wholly different animal. Commerce does not ben- efit from political volatility, nor from insults, discrimi- nation, or bigotry. Commerce is a communal institu- tion regulated for the mutual economic benefit of all. Commercial speech that discredits or brings reproach upon groups of Americans, particularly based on their race, has a discriminatory impact that undermines commercial activity and the stability of the market- place in much the same manner as discriminatory conduct. That discriminatory conduct disrupts commerce is long established. In upholding Title II of the Civil Rights Act, for example, the Supreme Court noted a record “replete with testimony of the burdens placed on interstate commerce by racial discrimination.” Katzenbach v. McClung, 379 U.S. 294, 299, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964). The Court cited an “im- pressive array of testimony that discrimination in res- taurants had a direct and highly restrictive effect upon interstate travel,” and that such discrimination there- fore “obstructs interstate commerce.” Id. at 300, 85 S. Ct. 377. It cited “many references” to discrimina- tion causing “a depressant effect on general business conditions in the respective communities” and it noted evidence that discrimination “deterred professional, as well as skilled, people from moving into areas where such practices occurred and thereby caused industry to be reluctant to establish there.” Id. The Court thus found “ample basis for the conclusion that estab- lished restaurants in such areas sold less interstate goods because of the discrimination, that interstate travel was obstructed directly by it, that business in 118a general suffered and that many new businesses re- frained from establishing there as a result of it.” Id. Although these findings were specific to public accommodations, they are applicable to commerce generally. Commercial goods and services pervade all economic channels, including all public accommoda- tions, such as stores, restaurants, hotels, theaters, and the like. Discriminatory messages within such com- mercial channels threaten the same disruptive effects as the discrimination itself. Although the Majority distinguishes between conduct and speech, Maj. Op. at 1356-57, the distinction is without a difference in this context. Whether a restaurant named “SPICS NOT WELCOME” would actually serve a Hispanic patron is hardly the point. The mere use of the demeaning mark in commerce communicates a discriminatory intent as harmful as the fruit produced by the dis- criminatory conduct. Because even speech without accompanying conduct can have a discriminatory impact, other parts of the Civil Rights Act expressly regulate pure speech in commerce. For instance, Title VIII specifically bans advertising that indicates a discriminatory preference, even where discriminatory conduct is legal. See 42 U.S.C. § 3604(c); see also § 3603(b) (listing exemp- tions). Title VII places similar restrictions on job ad- vertisements. See 42 U.S.C. § 2000e-3(b). Title VII also bans pure speech in the workplace when the speech is harassing, even when unaccompanied by any adverse employment action, because such speech cre- ates a discriminatory impact. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 119a (1993); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). Nearly every disparaging mark identified in the voluminous briefing and opinions in this case has in- volved disparagement of race, gender, ethnicity, na- tional origin, religion, sexual orientation, and similar demographic classification. The impact of advancing these bigoted messages through the ubiquitous chan- nels of commerce may be discriminatory, and even if not discriminatory, at least disruptive to commerce. The only question is whether the government’s inter- est in avoiding this commercial disruption outweighs the modest “burden” that its refusal to register the of- fending marks places on the freedom of speech. I be- lieve it does. D. Section 2(a) Survives Intermediate Scrutiny To be clear, I do not believe that the government may ban any speech it finds commercially undesirable, but only that when we are presented with a regulation, we must engage meaningfully in “the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation.” Bigelow, 421 U.S. at 826, 95 S. Ct. 2222. Here, the government’s substantial interest in the orderly flow of commerce is counterbalanced only by a minimal “burden” on a small subset of low-value com- mercial speech. Section 2(a) should survive interme- diate scrutiny because it is only an “incidental re- striction on First Amendment freedom [that] is no greater than is essential to the furtherance of the governmental interest” in the orderly flow of com- merce. See Barnes, 501 U.S. at 561, 111 S. Ct. 2456. 120a Section 2(a) imposes only a modest “burden” on speech. First, the statute applies only in the com- mercial context, meaning that it does nothing to impact private speech. Mr. Tam remains free to spread his chosen message to all who would listen without fear of government intervention or reprisal. Second, § 2(a) does not strictly “burden” Mr. Tam’s speech, but only denies him a government-created benefit—the exclu- sive right to use that speech in commerce in connection with the sale of particular goods or services. At bot- tom, the only burden the application of § 2(a) imposes in this case is that Mr. Tam is free to communicate his chosen message within or without commerce, so long as he is willing to permit others to do the same. Section 2(a) also implicates only a modest sliver of particularly low-value speech. Speech that disparag- es is a narrow subset of speech that offends, and it is a particularly low-value subset at that. See Am. Free- dom Def. Initiative v. Mass. Bay Transp. Auth., 989 F. Supp. 2d 182, 192 (D. Mass. 2013), aff ’d, 781 F.3d 571 (1st Cir. 2015) (distinguishing speech that “crosses the line from being offensive or hurtful to being de- meaning or disparaging”). To borrow a phrase from Justice Stevens, few of us would march our sons and daughters off to war to preserve the citizen’s right to be the exclusive purveyor of “OLD COON SMOKING TOBACCO.” See Young, 427 U.S. at 70, 96 S. Ct. 2440; McCann v. Anthony, 21 Mo. App. 83, 91-92 (1886). The Supreme Court has routinely considered the relative value of burdened speech in its First Amend- ment analysis. See, e.g., Bethel Sch. Dist. No. 403 v. 121a Fraser, 478 U.S. 675, 683, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986); Young, 427 U.S. at 70-71, 96 S. Ct. 2440; Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 510-11, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). For instance, the Court has held that a student’s in- terest in high-value political speech outweighed his school’s interest in avoiding a “substantial disruption,” Tinker, 393 U.S. at 510-11, 89 S. Ct. 733, but that a student’s interest in low-value “insulting” speech did not, Fraser, 478 U.S. at 683, 106 S. Ct. 3159. When low-value materials are concerned, “the State may legitimately use the content of these materials as the basis for placing them in a different classification” of First Amendment protection. Young, 427 U.S. at 71, 96 S. Ct. 2440. At the extremes, disparaging speech enjoys no First Amendment protection. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). “Insulting” words, which “by their very utter- ance inflict injury” are part of the “limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional prob- lem.” Id. at 571-72, 62 S. Ct. 766. To whatever ex- tent “disparaging” speech differs from “insulting” speech, its value is not much greater. Additionally, any minimal value disparaging speech might offer in the marketplace of ideas is far dimin- ished in the marketplace of goods and services, which is the only context at issue in this appeal. One can hardly imagine what legitimate interest a vendor of goods or services may have in insulting potential cus- tomers. Whatever value disparaging speech might 122a possess when used in private life, it loses when used in commerce. When we balance the government’s substantial interest in the orderly flow of commerce against the modest imposition of § 2(a) on a narrowly tailored portion of particularly low-value speech, the standards of intermediate scrutiny are satisfied. Whatever modest imposition the statute makes on the free flow of public discourse, it is nothing more than an “inci- dental restriction on First Amendment freedom [that] is no greater than is essential to the furtherance of the governmental interest” in the orderly flow of com- merce. See Barnes, 501 U.S. at 561, 111 S. Ct. 2456. For the foregoing reasons, I believe that § 2(a) is con- stitutional. I respectfully dissent. 123a APPENDIX B UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 2014-1203 IN RE SIMON SHIAO TAM, APPELLANT Apr. 20, 2015 OPINION Before: LOURIE, MOORE, and O’MALLEY, Circuit Judges MOORE, Circuit Judge. Simon Shiao Tam appeals from the decision of the Trademark Trial and Appeal Board (the Board) af- firming the examining attorney’s refusal to register the mark THE SLANTS because it is disparaging. We affirm. BACKGROUND Mr. Tam is the “front man” for Asian-American dance rock band The Slants. In 2010, Mr. Tam filed Application No. 77/952,263 (’263 application) seeking to register the mark THE SLANTS for “Entertainment, namely, live performances by a musical band.” Mr. Tam attached specimens featuring the band name set against Asian motifs to the ’263 application. The 124a examining attorney found the mark disparaging to people of Asian descent under 15 U.S.C. § 1052(a) (“§ 2(a)”) and therefore refused to register it. Mr. Tam appealed that refusal to the Board, but the case was dismissed for failure to file a brief and the appli- cation was deemed abandoned. On November 14, 2011, six days after the abandonment of the ’263 ap- plication, Mr. Tam filed a second application (Applica- tion No. 85/472,044, or the ’044 application) seeking to register the mark THE SLANTS for essentially iden- tical services as in the ’263 application. In the ’044 application, Mr. Tam claims use of the mark since 2006. Unlike the specimens attached to the ’263 ap- plication, the specimens attached to the ’044 applica- tion do not contain Asian motifs. The examining at- torney again found the mark THE SLANTS dispar- aging and declined to register it. In making this de- termination, the examining attorney cited to materials that he had gathered in response to Mr. Tam’s earlier application. Mr. Tam responded and a final office ac- tion issued. The Board affirmed the examining attorney’s re- fusal to register the mark. The Board found that “it is abundantly clear from the record not only that THE SLANTS . . . would have the ‘likely meaning’ of people of Asian descent but also that such meaning has been so perceived and has prompted significant re- sponses by prospective attendees or hosts of the band’s performances.” In re Tam, No. 85472044, 2013 WL 5498164, at *5 (TTAB Sept. 26, 2013). To support this conclusion, the Board pointed to the band’s website, which displayed the mark next to “a depiction of an Asian woman, utilizing rising sun im- 125a agery and using a stylized dragon image,” and to a statement by Mr. Tam that he selected the mark in order to “own” the stereotype it represents. Tam, 2013 WL 5498164, at *5. The Board also found that the mark is disparaging to a substantial component of people of Asian descent because “[t]he dictionary defi- nitions, reference works, and all other evidence unan- imously categorize the word ‘slant,’ when meaning a person of Asian descent, as disparaging,” and because there was record evidence of individuals and groups in the Asian community objecting to Mr. Tam’s use of the word “slant.” Tam, 2013 WL 5498164, at *7. The Board therefore disqualified the mark for registration under § 2(a). Mr. Tam appeals. We have jurisdic- tion under 28 U.S.C. § 1295(a)(4). DISCUSSION Mr. Tam argues that the Board erred in finding the mark THE SLANTS disparaging under § 2(a) of the Lanham Act and therefore unregistrable. Mr. Tam also challenges the constitutionality of § 2(a). I. Disparagement Analysis Section 2(a) of the Lanham Act provides that the Patent and Trademark Office (PTO) may refuse to register a trademark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or na- tional symbols, or bring them into contempt, or disre- pute.” 15 U.S.C. § 1052(a). A disparaging mark “ ‘dishonors by comparison with what is inferior, slights, deprecates, degrades, or affects or injures by unjust comparison.’ ” In re Geller, 751 F.3d 1355, 126a 1358 (Fed. Cir. 2014) (quoting Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96, 124 (D.D.C. 2003)) (altera- tions omitted). In Geller, we applied a two-part test to determine if a mark may be disparaging: (1) what is 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; and (2) if that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a sub- stantial composite of the referenced group. Id. This determination is “a conclusion of law based upon underlying factual inquiries.” Id. We review the Board’s factual findings for substantial evidence, and its ultimate conclusion de novo. Id. A. Use of Prior Applications As a threshold matter, Mr. Tam argues that the examining attorney and the Board should not have considered evidence gathered by the examining attor- ney while evaluating the earlier ’263 application. We disagree. The examining attorney may look to evi- dence outside the application, such as dictionary defi- nitions and newspaper articles, when determining the “manner of use” of the mark. See In re Bayer Ak- tiengesellschaft, 488 F.3d 960, 966-69 (Fed. Cir. 2007). Mr. Tam claims use of the mark THE SLANTS back to 2006, before he filed the ’263 application. Evidence 127a gathered in response to the ’263 application is relevant to determining the mark’s manner of use for the time period during which Mr. Tam asserts the mark was in use. While the evidence gathered during the evalua- tion of the ’263 application derives from an abandoned application dated before the ’044 application’s filing date, its use was not improper. B. Likely Meaning To determine if a mark is disparaging, we first consider “the likely meaning of the matter in ques- tion.” Geller, 751 F.3d at 1358. The Board found that the mark THE SLANTS refers to people of Asian descent. Substantial evidence supports this finding. Mr. Tam argues that the mark does not refer to people of Asian descent. His argument seems to rely on 1) the fact that the term “slant” has a number of alterna- tive, more common meanings; 2) that none of the speci- mens attached to the ’044 application include Asian imagery or otherwise reference people of Asian des- cent; and 3) that the PTO has granted a number of unrelated trademark applications containing the term “slant.” We are not persuaded by Mr. Tam’s argu- ment. There is no dispute that the term “slants” has a number of meanings, one of which refers to people of Asian descent. The Board cited a number of tradi- tional and slang dictionaries defining the word with reference to people of Asian descent, ranging from Oxford Reference Online to www.urbandictionary.com. Tam, 2013 WL 5498164, at *1-2 & n.3. Even the dic- tionary entries supplied by Mr. Tam include as possi- ble definitions for the term “slant” “a disparaging term 128a for a person of East Asian birth or ancestry,” J.A. 219 (The American Heritage Dictionary of the English Language), and “[a] person with slanting eyes, spec. one of Oriental descent,” J.A. 234-36 (Oxford English Dictionary). The fact that the term “slants” has some innocuous meanings—and that some trademarks have issued with those innocuous meanings—does not foreclose the possibility that the term may also be used in an offen- sive manner, even when the non-disparaging meanings are more common. See Tam, 2013 WL 5498164, at *5. Rather, the existence of these other meanings makes it necessary to examine how the applicant uses the mark in the marketplace to determine its likely meaning—as the Board did. The evidence here supports the Board’s finding that the mark THE SLANTS likely refers to people of Asian descent. For example, an article in the record includes a quote attributed to Mr. Tam where he de- scribes the genesis of the band’s name by explaining: “I was trying to think of things that people associate with Asians. Obviously, one of the first things people say is that we have slanted eyes. . . . ” J.A. 130. The record also contains the band’s entry in Wikipedia, which states that the band’s name is “de- rived from an ethnic slur for Asians.” J.A. 57. The Wikipedia entry quotes Mr. Tam: “We want to take on these stereotypes that people have about us, like the slanted eyes, and own them. We’re very proud of being Asian—we’re not going to hide that fact. The reaction from the Asian community has been positive.” Id. Furthermore, the record includes an image from 129a the band’s website in which the mark THE SLANTS is set against “a depiction of an Asian woman, utilizing rising sun imagery and using a stylized dragon image,” as described by the Board. Tam, 2013 WL 5498164, at *2, *5 (citing J.A. 59). Finally, the record includes evidence that both individuals and Asian groups have perceived the term as referring to people of Asian des- cent. Tam, 2013 WL 5498164, at *2-3 (citing, e.g., J.A. 95 (“[Mr. Tam] was initially slated to give the keynote address at the 2009 Asian American Youth Leadership Conference in Portland. But some con- ference supporters and attendees felt the name of the band was offensive and racist, and out of respect for these opinions the conference organizers decided to choose someone less controversial.”)). On this record, we find that substantial evidence supports the Board’s determination that the mark THE SLANTS likely re- fers to people of Asian descent. Mr. Tam also argues that we should not consider this evidence because it is unauthenticated hearsay and does not satisfy the requirements of 37 C.F.R. § 2.122(a), which applies the Federal Rules of Evi- dence to inter partes proceedings. However, § 2.122(a) does not apply to ex parte proceedings. For ex parte proceedings, the Board has adopted a “somewhat more permissive stance with respect to the admissibility and probative value of evidence.” TRADEMARK TRIAL & APPEAL BOARD MANUAL OF PROCEDURE § 1208. In ex parte proceedings, the Board permits the examining attorney to consider Internet material. Id. § 1208.03. We see no error in the Board’s procedures. 130a C. Whether the Meaning May Be Disparaging to a Substantial Composite of the Referenced Group If the likely meaning of the mark “is found to refer to identifiable persons, institutions, beliefs or national symbols,” we next consider “whether that meaning may be disparaging to a substantial composite of the referenced group.” Geller, 751 F.3d at 1360. Sub- stantial evidence supports the Board’s finding that the mark THE SLANTS is likely offensive to a substantial composite of people of Asian descent. First, the definitions in evidence universally char- acterize the word “slant” as disparaging, offensive, or an ethnic slur when used to refer to a person of Asian descent. Tam, 2013 WL 5498164, at *1-2, *7 & n.3. This includes the dictionaries provided by Mr. Tam in his response to office action. J.A. 219, 234-36. Ad- ditionally, the record includes a brochure published by the Japanese American Citizens League describing the term “slant,” when used to refer to people of Asian descent, as a “derogatory term” that is “demeaning” and “cripple[s] the spirit.” J.A. 48-49. The record also includes news articles and blog posts discussing the offensive nature of the band’s name, which led to the cancellation of the band’s scheduled performance at a conference for Asian youth. Tam, 2013 WL 5498164, at *2-3 (citing J.A. 45, 51, 94-98, 100). We find there is substantial evidence—even without a marketing survey or some other quantitative measure of the term’s offensiveness—supporting the Board’s finding that the mark is disparaging to a substantial composite of people of Asian descent. The Board 131a does not have the resources, nor is it required, to con- duct a marketing survey each time it evaluates wheth- er a term is disparaging. See In re Loew’s Theatres, Inc., 769 F.2d 764, 768 (Fed. Cir. 1985). II. Constitutionality of § 2(a) Having affirmed the Board’s holding that the mark is disparaging, we next turn to Mr. Tam’s constitu- tional challenges. A. First Amendment Mr. Tam argues that the Lanham Act’s restrictions on disparaging trademarks are unconstitutional under the First Amendment both facially and as applied to his case because § 2(a) conditions a benefit— trademark registration—on the relinquishment of speech. This argument is foreclosed by our prece- dent. In In re McGinley, our predecessor court wrote: With respect to appellant’s First Amendment rights, it is clear that the PTO’s refusal to register appellant’s mark does not affect his right to use it. No conduct is proscribed, and no tangible form of expression is suppressed. Consequently, appel- lant’s First Amendment rights would not be abridged by the refusal to register his mark. 660 F.2d 481, 484 (C.C.P.A. 1981). In subsequent cases, we have accepted this reasoning. In re Boule- vard Entm’t, Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003) (“[T]he refusal to register a mark does not proscribe any conduct or suppress any form of expression be- cause it does not affect the applicant’s right to use the mark in question.”); In re Mavety Media Grp., 33 F.3d 132a 1367, 1374 (Fed. Cir. 1994); see also In re Fox, 702 F.3d 633, 635 (Fed. Cir. 2012) (“Because a refusal to register a mark has no bearing on the applicant’s abil- ity to use the mark, we have held that § 1052(a) does not implicate the First Amendment rights of trade- mark applicants.”). We here follow our precedent. B. Vagueness Mr. Tam also argues that the disparagement stan- dard of § 2(a) is unconstitutionally vague. He claims that key terms of § 2(a), such as “scandalous” and “dis- parage,” are not “clearly defined” and are necessarily subjective. He argues that § 2(a) therefore does not give “the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). We have noted with respect to § 2(a)’s bar on scan- dalous subject matter the “inherent difficulty in fash- ioning a single objective measure like a substantial composite of the general public from the myriad of subjective viewpoints.” Mavety, 33 F.3d at 1371. Nonetheless, we found the standard “sufficiently pre- cise to enable the PTO and the courts to apply the law fairly and to notify a would-be registrant that the mark he adopts will not be granted a federal registration.” McGinley, 660 F.2d at 485. The same is true for the bar on disparaging marks. The Board follows a well- established two-part test to determine if a mark is dis- paraging. See Geller, 751 F.3d at 1358. This stand- ard is not unconstitutionally vague. 133a C. Due Process Mr. Tam argues that the PTO applies the dispar- agement provisions arbitrarily and without clear guidelines. He points to registered trademarks con- taining slurs against homosexuals such as DYKES ON BIKES, U.S. Registration No. 3323803, as evidence of the arbitrary nature of trademark adjudication. We have rejected similar due process challenges to § 2(a). In both Boulevard Entertainment, 334 F.3d at 1343, and In re Shinnecock Smoke Shop, 571 F.3d 1171, 1174 (Fed. Cir. 2009), the applicant argued that by refusing to register his mark while granting similar marks, the PTO had violated the Due Process clause. In these cases, we found no due process violation be- cause the applicant “was provided a full opportunity to prosecute his applications and to appeal the examining attorney’s final rejections to the Board.” 571 F.3d at 1174. The same is true here. We also noted that “allegations regarding similar marks are irrelevant be- cause each application must be considered on its own merits.” Id. (citing Boulevard Entm’t, 334 F.3d at 1343). Furthermore, “[e]ven if all of the third-party registrations should have been refused registration under [§ 2(a)], such errors do not bind the USPTO to improperly register [the a]pplicant’s marks.” Id. (cit- ing Boulevard Entm’t, 334 F.3d at 1343). This rea- soning compels us to reject Mr. Tam’s due process ar- gument. D. Equal Protection Lastly, Mr. Tam argues that because the examining attorney’s disparagement analysis hinged on his and 134a his bandmates’ ethnic identities, the rejection of the mark violated the equal protection clause. To sup- port this argument, Mr. Tam points to the Final Office Action, which states: Here, the evidence is uncontested that applicant is a founding member of a band (The Slants) that is self described as being composed of members of Asian descent. . . . Thus, the association of the term SLANTS with those of Asian descent is evidenced by how the applicant uses the Mark—as the name of an all Asian-American band. J.A. 244. Mr. Tam argues the examining attorney’s race-based determination is neither justified by a com- pelling government interest nor narrowly tailored to- wards achieving that goal. We reject Mr. Tam’s equal protection argument. The record shows that the Board denied Mr. Tam the registration because he used the mark THE SLANTS in a disparaging manner, not on account of his race. The Board wrote that “[a]n application by a band comprised of non-Asian-Americans called THE SLANTS that displayed the mark next to the imagery used by applicant . . . would also be subject to a refusal under Section 2(a).” Tam, 2013 WL 5498164, at *6. Furthermore, we have held that a trademark refusal does not violate equal protection so long as there are nondiscriminatory reasons for denying reg- istration. Shinnecock Smoke Shop, 571 F.3d at 1175. Here there are nondiscriminatory reasons for denying Mr. Tam’s application. 135a CONCLUSION We affirm the Board’s decision affirming the examin- ing attorney’s refusal to register the mark THE SLANTS because it is disparaging. AFFIRMED. MOORE, Circuit Judge, additional views. It is time for this Court to revisit McGinley’s hold- ing on the constitutionality of § 2(a) of the Lanham Act. Under § 2(a), the PTO may refuse to register immoral, scandalous, or disparaging marks. 15 U.S.C. § 1052(a). In In re McGinley, our predecessor court held without citation to any legal authority in just a few sentences that § 2(a) does not implicate the First Amendment: With respect to appellant’s First Amendment rights, it is clear that the PTO’s refusal to register appellant’s mark does not affect his right to use it. No conduct is proscribed, and no tangible form of expression is suppressed. Consequently, appel- lant’s First Amendment rights would not be abridged by the refusal to register his mark. 660 F.2d 481, 484 (C.C.P.A. 1981). More than thirty years have passed since McGinley, and in that time both the McGinley decision and our reliance on it have been widely criticized.1 Furthermore, First Amend- 1 See, e.g., Ritchie v. Simpson, 170 F.3d 1092, 1103 & n.1 (Fed. Cir. 1999) (Newman, J., dissenting); Pro-Football Inc. v. Harjo, No. 99-1385(CKK), 2000 WL 1923326, at *4 (D.D.C. Dec. 11, 2000); Stephen Baird, Moral Intervention in the Trademark Arena: Banning the Registration of Scandalous and Immoral Trade- 136a ment jurisprudence on the “unconstitutional condi- tions” doctrine and the protection accorded to com- mercial speech has evolved significantly since the McGinley decision. In 1991, the source of the PTO’s funding shifted from the taxpayers to application fees. The constitutionality of § 2(a) is an important and timely issue that raises a number of constitutional questions. The time has come to give this issue the consideration it is due. marks, 83 TRADEMARK REPORTER 661, 685-86 (1993); Justin G. Blankenship, The Cancellation of Redskins as a Disparaging Trademark: Is Federal Trademark Law an Appropriate Solu- tion for Words That Offend?, 72 U. COLO. L. REV. 415, 443-44 (2001); Terence Dougherty, Group Rights to Cultural Survival: Intellectual Property Rights in Native American Cultural Sym- bols, 29 COLUM. HUM. RTS. L. REV. 355, 383 (1998); Bruce C. Kelber, ‘‘Scalping the Redskins:” Can Trademark Law Start Athletic Teams Bearing Native American Nicknames and Images on the Road to Racial Reform?, 17 HAMLINE L. REV. 533, 556 (1994); Paul Kuruk, Goading a Reluctant Dinosaur: Mutual Recognition Agreements as a Policy Response to the Misappro- priation of Foreign Traditional Knowledge in the United States, 34 PEPP. L. REV. 629, 662 n.209 (2007); Michelle B. Lee, Section 2(a) of the Lanham Act as a Restriction on Sports Team Names: Has Political Correctness Gone Too Far?, 4 SPORTS LAW J. 65, 66-67 (1997); Jeffrey Lefstin, Does the First Amendment Bar Cancellation of Redskins?, 52 STAN. L. REV. 665, 676-77 (2000); Nell Jessup Newton, Memory and Misrepresentation: Repre- senting Crazy Horse, 27 CONN. L. REV. 1003, 1030 n.109 (1995); Ron Phillips, A Case for Scandal and Immorality: Proposing Thin Protection of Controversial Trademarks, 17 U. BALT. IN- TELL. PROP. L.J. 55, 67-68 (2008); Jendi Reiter, Redskins and Scarlet Letters: Why “Immoral” and “Scandalous” Trademarks Should Be Federally Registrable, 6 FED. CIR. BAR. J. 191, 197 (1996); Lilit Voskanyan, The Trademark Principal Register as a Nonpublic Forum, 75 U. CHI. L. REV. 1295, 1302 (2008). 137a There are three requirements for finding a violation of the First Amendment. The speech at issue must be protected speech. See, e.g., Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) (obscenity is not protected by the First Amendment); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974) (defamation under cer- tain circumstances is not protected by the First Amendment); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942) (“fighting words” are not protected by the First Amendment); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (“ ‘[T]he freedom of speech’ referred to by the First Amendment does not include a freedom to disregard these traditional limitations.”); United States v. Alva- rez, — U.S. —, 132 S. Ct. 2537, 2543-44, 183 L. Ed. 2d 574 (2012) (plurality opinion). There must be govern- ment action that abridges that speech in a manner that implicates the First Amendment, as, for example, when the government bans flag-burning, Texas v. Johnson, 491 U.S. 397, 405, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), or imposes taxes on certain publications, Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229-30, 107 S. Ct. 1722, 95 L. Ed. 2d 209 (1987). And the abridgement must be unconstitutional when ana- lyzed under the appropriate framework—for example, the Central Hudson four-part test for determining the constitutionality of restrictions on commercial speech. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). 138a I. Are Trade Names Protected Speech? For many years, commercial speech lay outside the ambit of the First Amendment. In 1975, the Supreme Court ruled that the First Amendment protects com- mercial speech, Bigelow v. Virginia, 421 U.S. 809, 818, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975), and five years later the Supreme Court laid out the four-part test for determining the constitutionality of restrictions on commercial speech, Central Hudson, 447 U.S. at 566, 100 S. Ct. 2343. Today, however, it is unquestionably true that trademarks are protected speech under Supreme Court commercial speech jurisprudence. Commercial speech is the “dissemination of information as to who is producing and selling what product, for what reason, and at what price.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 765, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976). Protecting the flow of this type of information is “indispensable.” Id. Four years after Bigelow, the Supreme Court held that the trade name of an optometrist is commer- cial speech. Friedman v. Rogers, 440 U.S. 1, 11, 99 S. Ct. 887, 59 L. Ed. 2d 100 (1979) (“The use of trade names in connection with optometrical practice, then, is a form of commercial speech and nothing more.”). Trade names identify the source of a product or ser- vice for users, and thus provide some of the infor- mation labeled indispensable by the Supreme Court in Virginia State Board. Indeed, the government has conceded that “[t]rademarks are a form of commercial speech.” Appellee’s Br. 34 n.5. Because a trade- 139a mark identifies the source of a product or service for users, it is protected commercial speech. While it may be true that many marks are used solely as a source identifier, that is not the case here. Mr. Tam’s mark THE SLANTS does more than mere- ly identify the band in the commercial arena. In Friedman, the Court reasoned that the optician seek- ing the trade name “does not wish to editorialize on any subject, cultural, philosophical, or political. He does not wish to report any particularly newsworthy fact, or to make generalized observations even about commercial matters.” 440 U.S. at 11, 99 S. Ct. 887. Here, by contrast, Mr. Tam seeks to trademark the name of a musical group, selecting the name “The Slants” to “reclaim” and “take ownership” of Asian stereotypes. J.A. 129-30. The band draws inspira- tion for its lyrics from childhood slurs and mocking nursery rhymes, J.A. 130, and its albums include “The Yellow Album” and “Slanted Eyes, Slanted Hearts.” The band “feel[s] strongly that Asians should be proud of their cultural heritage, and not be offended by ste- reotypical descriptions.” J.A. 52. With their lyrics, performances, and band name, Mr. Tam and The Slants weigh in on cultural and political discussions about race and society that are within the heartland of speech protected by the First Amendment. II. Is § 2(a) an Abridgement of Speech? A. Benefits of Trademark Registration The McGinley court held that the refusal to regis- ter a mark under § 2(a) does not bar the applicant from using the mark, and therefore does not implicate the 140a First Amendment. It is true that § 2(a) does not bar the applicant from using the mark. Here, for exam- ple, Mr. Tam’s band can continue to perform and ad- vertise using the name “The Slants.” However, as the McGinley court wrote, § 2(a) denies the applicant access to “benefits provided by the Lanham Act which enhance the value of a mark.” 660 F.2d at 486 n.12. “Registration is significant. The Lanham Act confers important legal rights and benefits on trademark owners who register their marks.” B & B Hardware, Inc. v. Hargis Ind., Inc., — U.S. —, 135 S. Ct. 1293, 1300, 191 L. Ed. 2d 222 (2015). These benefits—unavailable in the absence of fed- eral registration—are numerous, and include both sub- stantive and procedural rights. First, the holder of a federal trademark has a right to exclusive nationwide use of that mark where there was no prior use by a party other than the markholder. See 15 U.S.C. §§ 1072, 1115. Because under the common law, a markholder only has the right to exclusive use where he has used his mark before, see 5 J. Thomas McCar- thy, McCarthy on Trademarks and Unfair Competi- tion § 26:32 (4th ed.), holders of a federal trademark have an important substantive right they could not otherwise obtain. Also, a registered mark is pre- sumed to be valid, 15 U.S.C. § 1057(b), and the mark becomes incontestable (with certain exceptions) after five years of consecutive post-registration use, id. § 1065; see also B & B Hardware, 135 S. Ct. at 1310 (“Incontestability is a powerful protection”). A mar- kholder may sue in federal courts to enforce his trademark, 15 U.S.C. § 1121, and he may recover tre- ble damages if he can show infringement was willful, 141a id. § 1117. He may also obtain the assistance of U.S. Customs and Border Protection in restricting impor- tation of infringing or counterfeit goods, id. § 1124; 19 U.S.C. § 1526, or prevent “cybersquatters” from mis- appropriating his domain name, 15 U.S.C. § 1125(d). In effect, § 2(a) of the Lanham Act conditions trade- mark registration and all of its attendant benefits on the applicant’s selection of a suitable mark. Section 2(a)’s registerability conditions are not tethered to the trade-mark’s functioning as a source identifier or to any concern over the mark creating confusion or being misleading. Instead, § 2(a) allows the PTO to deter- mine whether the trademark is suitable for registra- tion, in this case whether it is disparaging, which is a moral judgment based solely and indisputably on the mark’s expressive content. Not only is a disparaging trademark denied federal registration, but it cannot be protected by its owner by virtue of a § 43(a) unfair competition claim. Id. § 1125(a). Section 43(a) allows for a federal suit, much like state common law, to protect an unregis- tered trademark. As many courts have noted, it is the use of a trademark in commerce, not its registra- tion, which gives rise to a protectable right. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 979 (9th Cir. 2006) (“Registration does not create a mark or confer ownership; only use in the marketplace can establish a mark.”); In re Int’l Flavors & Fragrances, Inc., 183 F.3d 1361, 1366 (Fed. Cir. 1999) (“The federal regis- tration of a trademark does not create an exclusive property right in the mark. The owner of the mark already has the property right established by prior use. . . . However, those trademark owners who 142a register their marks with the PTO are afforded addi- tional protection not provided by the common law.”). Equally clear, however, is that § 43(a) protection is only available for unregistered trademarks that could have qualified for federal registration. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S. Ct. 2753, 120 L. Ed. 2d 615 (1992) (section 43(a) “protects qualifying unregistered trademarks and . . . 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)”); Donchez v. Coors Brewing Co., 392 F.3d 1211, 1215 (10th Cir. 2004) (plaintiff must establish that its mark is pro- tectable to prevail in a claim under § 43(a)); Yarmuth- Dion, Inc. v. D’ion Furs, Inc., 835 F.2d 990, 992 (2d Cir. 1987) (requiring a plaintiff to “demonstrate that his [unregistered] mark merits protection under the Lanham Act”). Thus, no federal cause of action is available to protect a trademark deemed disparaging, regardless of its use in commerce. Section 2(a)’s bar on disparaging marks was a crea- tion of the federal government, first developed when Congress enacted the Lanham Act. See infra at 583-84. Three years later, the United States Trade- mark Association prepared the Model State Trade- mark Bill—a bill patterned on the Lanham Act in many respects. McCarthy at § 22:5. The Model Bill contained language barring a mark from registration if it “consists of or comprises matter which may dispar- age . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into con- tempt, or disrepute.” 1964 Model State Trademark 143a Act, § 2. Following the lead of the federal government, virtually all states have adopted the Model Bill and its disparagement provision. McCarthy at § 22:5. Thus, not only are the benefits of federal registration unavailable to Mr. Tam, so too are the benefits of trademark registration in nearly all states. And as commentators have noted, state statutory and common law schemes mirror Lanham Act protections, making it likely that an unregisterable trademark will have no state protection. McCarthy at § 22:1.50; see also 1964 Model State Trademark Act, § 1.C (“The term ‘mark’ as used herein includes any trademark or service mark entitled to registration under this Act whether regis- tered or not.”) (emphasis added). While denial of registerability and the attendant rights of protection both federal and state do not pre- vent a trademark owner from using its mark, such denial severely burdens use of such marks. Section 2(a)’s content-based restrictions on registerability were adopted to reduce use of trademarks the gov- ernment deemed unsuitable (such as those that dis- parage)—no doubt a chilling effect on speech. B. The “Unconstitutional Conditions” Doctrine The Supreme Court has repeatedly held that the government cannot deny access to a benefit because of the recipient’s exercise of constitutionally protected speech. Under the “unconstitutional conditions” doc- trine, [E]ven though a person has no ‘right’ to a valuable governmental benefit and even though the govern- ment may deny him the benefit for any number of 144a reasons, there are some reasons upon which the government may not rely. It may not deny a ben- efit to a person on a basis that infringes his consti- tutionally protected interests—especially, his inter- est in freedom of speech. For if the government could deny a benefit to a person because of his con- stitutionally protected speech or associations, his exercise of those freedoms would in effect be penal- ized and inhibited. Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). Under this doctrine, the Supreme Court held that a state college could not re- fuse to retain a professor because of his public criti- cism of that college’s policy, even though the professor had no right to reemployment and even though the government had not directly prohibited the professor from speaking. Id. at 597-98, 92 S. Ct. 2694. This is because “[t]o deny [a benefit] to claimants who engage in certain forms of speech is in effect to penalize them for such speech.” Speiser v. Randall, 357 U.S. 513, 518, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958). Since Perry, the Supreme Court has wrestled with the inherent tension between applying the “unconsti- tutional conditions” doctrine and protecting Congress’ ability to direct government spending. As the Su- preme Court has noted, the Spending Clause of the U.S. Constitution, which grants Congress the power “[t]o lay and collect Taxes, Duties, Imposts and Excis- es, to pay the Debts and provide for the common De- fence and general Welfare of the United States,” U.S. Const. Art. I, § 8, cl. 1, “provides Congress broad dis- cretion to tax and spend for the ‘general Welfare,’ 145a including by funding particular state or private pro- grams or activities.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., — U.S. —, 133 S. Ct. 2321, 2327-28, 186 L. Ed. 2d 398 (2013). This includes “the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends,” even when these limits are conditioned on the recipi- ents’ constitutional rights. Id. at 2328 (citing Rust v. Sullivan, 500 U.S. 173, 195 n.4, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991)). The Court reasoned that “if a party objects to a condition on the receipt of federal funding,” it can always decline the funds. Id. Thus, “when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.” United States v. Am. Li- brary Ass’n, Inc., 539 U.S. 194, 211, 123 S. Ct. 2297, 156 L. Ed. 2d 221 (2003) (quoting Rust, 500 U.S. at 194, 111 S. Ct. 1759). Under this reasoning, the Supreme Court upheld regulations prohibiting the use of federal family planning funds for abortion counseling and referral services. Rust, 500 U.S. at 192, 111 S. Ct. 1759. Similarly, the Court held that conditioning public libraries’ receipt of federal subsidies on their use of Internet filtering software was a valid exercise of Congress’ spending power, because Congress was entitled to insist that “public funds be spent for the purposes for which they were authorized.” Am. Li- brary Ass’n, 539 U.S. at 211-12, 123 S. Ct. 2297 (quota- tion marks omitted). This spending limitation applies to indirect forms of public funding such as tax exemp- tions as well as direct subsidies. Regan v. Taxation with Representation of Wash., 461 U.S. 540, 544, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) (“Both tax exemp- 146a tions and tax-deductibility are a form of subsidy that is administered through the tax system.”). The government’s discretion under the Spending Clause, while broad, is not unbounded. If a program arises from the Spending Clause, Congress is free to attach “conditions that define the limits of the gov- ernment spending program—those that specify the activities Congress wants to subsidize.” Agency for Int’l Dev., 133 S. Ct. at 2328. However, Congress does not have the authority to attach “conditions that seek to leverage funding to regulate speech outside the contours of the program itself.” Id. For example, the Court held that Congress could not restrict ap- propriations aimed at combating the spread of AIDS to only organizations having policies explicitly opposing prostitution and sex trafficking. Id. at 2230-31. Thus, the analysis of whether Congress has im- posed an unconstitutional condition on a federal bene- fit is affected by the nature of the Congressional benefit—namely, was the benefit authorized pursuant to Congress’ Spending power. Courts have examined whether the conditioned benefit was pursuant to the Spending Clause. For example, the Ninth Circuit considered whether the “unconstitutional conditions” doctrine prevented the government from implement- ing a treaty under which certain “educational, scien- tific, and cultural” audio-visual materials were subject to benefits, including exemption from import duties. Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 503 (9th Cir. 1988). Film makers, producers, and distributors argued that the treaty violated the First Amendment. Id. at 504. The government responded by arguing, as 147a it does here, that the regulations stemming from the treaty did not “punish or directly obstruct plaintiffs’ ability to produce or disseminate their films,” and that any benefits flowing from the regulations were “a case of the government simply declining to pay a subsidy.” Id. at 509. The Ninth Circuit disagreed with the gov- ernment’s “benign characterization” of the effect of the regulations and reasoned that the trade benefits were not a subsidy because “no Treasury Department funds [were] involved,” and therefore the spending exception did not apply. Id. at 509. The Ninth Circuit held that “by conditioning a valuable governmental benefit on the basis of speech content, the [government] forces film makers to choose between exercising their right to free speech and foregoing benefits under the [treaty], or curtailing their speech and obtaining the benefits.” Id. at 511. It reasoned that “this sort of dilemma patently transgresses the well-established principle that government may not condition the conferral of a benefit on the relinquishment of a constitutional right.” Id. The Fifth Circuit recently considered, en banc, the constitutionality of a Texas law allowing charitable or- ganizations to hold bingo games so long as the result- ing funds were not used for lobbying. Dep’t of Tex., Veterans of Foreign Wars v. Tex. Lottery Comm’n, 760 F.3d 427, 430 (5th Cir. 2014) (en banc). The Texas Lottery Commission argued that the law’s restrictions were not unconstitutional because they fell within the state government’s spending power, which is analo- gous to the federal government’s spending power. Id. at 434. The Fifth Circuit agreed that “the govern- ment may attach certain speech restrictions to funds 148a linked to the public treasury—when either granting cash subsidies directly from the public coffers . . . or approving the withholding of funds that otherwise would go to the public treasury.” Id. at 435. How- ever, the Fifth Circuit found the Texas bingo program “wholly distinguishable . . . because no public monies or ‘spending’ by the state are involved.” Id. at 436. The Fifth Circuit reasoned that the bingo pro- gram’s primary function is regulatory, further “un- derscor[ing] the incongruity of [applying] the ‘subsidy’ paradigm to the bingo program.” Id. at 437. The Fifth Circuit therefore applied the “unconstitutional conditions” doctrine to the bingo program, and found its lobbying provision unconstitutional. Id. at 437-41. The D.C. Circuit similarly held that a presidential directive barring lobbyists from serving on interna- tional trade advisory committees implicated the First Amendment. Autor v. Pritzker, 740 F.3d 176, 177 (D.C. Cir. 2014). The government argued that “when [it] appropriates public funds to establish a program, its decision not to use program funds to subsidize the exercise of a fundamental right does not infringe.” Id. at 182 (quotations and alterations omitted). The D.C. Circuit rejected the government’s argument be- cause membership in the advisory committees was a non-financial—albeit valuable—benefit. Id. at 182-83. It noted that advisory committee members are not paid for their service, “absorbing even their out of pocket expenses.” Id. at 183. Because “[t]he Su- preme Court has never extended the [spending excep- tion] to situations not involving financial benefits,” the D.C. Circuit found the directive could be an unconsti- tutional condition, and remanded so the district court 149a could consider the lobbyists’ claims further. Id. at 183-84. In another case, satellite carriers objected to the “must carry” provision in a federal law that granted satellite carriers a copyright license to retransmit local television stations in a given market so long as they also retransmitted all local television stations in that market upon request. Satellite Broad. & Commc’ns Ass’n v. FCC, 146 F. Supp. 2d 803, 808-09 (E.D. Va. 2001), aff ’d, 275 F.3d 337 (4th Cir. 2001). The district court reasoned that Congress’ grant of a copyright license to satellite carriers did not arise from the Spending Clause (and therefore qualify as a “subsidy”) because “it [did] not entail the grant of government funds, or other benefits obtained through the use of government funds (i.e., property, government-created jobs, etc.), to confer a benefit.” Id. at 829. The court then considered the constitutionality of the “must carry” condition attached to the copyright li- cense, and held the law constitutional both because it satisfied intermediate scrutiny and because, if a carri- er opted not to accept the copyright license granted by the statute, it could still negotiate for the right to transmit the local stations. Id. at 830-31. C. Applying the “Unconstitutional Conditions” Doctrine to Trademark Registration McGinley is the only case of ours to consider, if only briefly, the First Amendment implications of § 2(a). Since McGinley, a number of cases raised a First Amendment challenge to § 2(a), but in each case, the panel held itself bound by McGinley. See In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1343 (Fed. Cir. 150a 2003); In re Mavety Media Grp., 33 F.3d 1367, 1374 (Fed. Cir. 1994); In re Fox, 702 F.3d 633, 635 (Fed. Cir. 2012). Neither the court in McGinley nor any other court has analyzed § 2(a) under the “unconstitu- tional conditions” doctrine. This is error. Federal trademark registration confers valuable benefits, and under § 2(a), the government conditions those benefits on the applicants’ choice of a mark. Because the gov- ernment denies benefits to applicants on the basis of their constitutionally protected speech, the “unconsti- tutional conditions” doctrine applies. However, we are faced with a fundamental predi- cate question: does the “unconstitutional conditions” doctrine apply with full force in the context of trade- mark registration, or is it tempered by virtue of Con- gress’ spending power? The benefits of trademark registration, while valuable, are not monetary. Un- like tangible property, a subsidy, or a tax exemption, bestowal of a trademark registration does not result in a direct loss of any property or money from the public fisc. Rather, a trademark redefines the nature of the markholder’s rights as against the rights of other citi- zens, depriving others of their rights to use the mark. Like the programs in Bullfrog and Texas Lottery Commission, the system of trademark registration is a regulatory regime, not a government subsidy program. Furthermore, the act of registering a trademark does not involve the federal treasury. In 1981, as noted by the McGinley court, trademark registration was “underwritten by public funds.” 660 F.2d at 486. That is no longer true today. Since 1991, PTO opera- tions have been funded entirely by registration fees, 151a not the taxpayer. Figueroa v. United States, 466 F.3d 1023, 1028 (Fed. Cir. 2006); see also 56 Fed. Reg. 65147 (1991); Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, S. 10101, 1990 U.S.C.C.A.N. (104 Stat.) 1388. While PTO operations are fully funded by registra- tion fees, some federal funds are nonetheless spent to facilitate the registration and enforcement of trade- marks. For example, PTO employee benefits, which include pensions, health insurance, and life insurance, are administered by the Office of Personnel Manage- ment and funded from the general treasury. Figue- roa, 466 F.3d at 1028. And registering a trademark may lead to additional government spending, such as when the trademark owner seeks to enforce the trade- mark through the federal courts and U.S. Customs and Border Patrol. This spending, however, is attenuated from the benefits bestowed by trademark registration. Trademark registration does not implicate the Spend- ing Clause merely because of this attenuated spending, else every benefit or program provided by the gov- ernment would implicate the Spending Clause. The programs in Bullfrog and Texas Lottery Commission were likely funded in some part by the government— perhaps also by government benefits paid to employ- ees administering the programs—but the Ninth Cir- cuit and the Fifth Circuit considered only whether the conditioned benefits were paid for by government spending, and not whether the government subsidized the program in more indirect manners. And while the government argued in Autor that the government had appropriated public funds to establish the interna- tional trade advisory committees, 740 F.3d at 182, the 152a D.C. Circuit nonetheless found that membership on these advisory committees was not a financial benefit, id. at 183. The purpose and nature of trademark registration support the conclusion that trademark registration is not a government-funded benefit. The Lanham Act derives from the Commerce Clause, not the Spending Clause, and its purpose is to regulate marks used in interstate commerce—not to subsidize the markhold- ers. 15 U.S.C. § 1127. Furthermore, it is the mar- kholder, and not the government, that must spend money (on advertising using its mark) to obtain the benefits of trademark registration. Registration of a trademark is not a federally funded financial benefit to the applicant. McGinley was written only one year after Central Hudson and was decided against a background of law where the First Amendment had only recently begun to apply to commercial speech. Given the drastic changes since McGinley in constitutional jurispru- dence and the PTO’s shift from a taxpayer-funded organization to a user-funded program, the McGinley court’s analysis of the constitutionality of § 2(a) of the Lanham Act no longer suffices. This analysis did not discuss the “unconstitutional conditions” doctrine, despite the doctrine’s clear relevance. And because trademark registration is no longer funded by the federal treasury, there is no longer any argument that trademark registration implicates Congress’ power to spend. To the contrary, the trademark registration scheme is a prototypical example of a regulatory re- gime. As a result, the “unconstitutional conditions” 153a doctrine applies. The government cannot hinge the benefits of federal trademark registration on constitu- tionally protected speech—here, the applicant’s selec- tion of a suitable mark—unless the government’s ac- tions pass constitutional scrutiny. III. Is § 2(a) Unconstitutional? A. Viewpoint Discriminatory Regulations “Content-based regulations are presumptively in- valid.” R.A.V., 505 U.S. at 382, 112 S. Ct. 2538; Ash- croft v. ACLU, 542 U.S. 656, 660, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004). Viewpoint-based regulations are even more suspect, as they “raise[] the specter that the government may effectively drive certain ideas or viewpoints from the marketplace.” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991); see Sorrell v. IMS Health Inc., — U.S. —, 131 S. Ct. 2653, 2667, 180 L. Ed. 2d 544 (2011); Rosen- berger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995). As a result, these regulations receive the strictest of scru- tiny. “In the ordinary case it is all but dispositive to conclude that a law is content-based and, in practice, viewpoint-discriminatory.” Sorrell, 131 S. Ct. at 2667. Section 2(a) of the Lanham Act bars the registra- tion of disparaging speech. Under this law, it is pos- sible to register trademarks that refer to a certain group in a positive, or non-disparaging manner, but not trademarks that refer negatively to the same group. See R.A.V., 505 U.S. at 391, 112 S. Ct. 2538 154a (finding that an ordinance forbidding the use of “fighting words” that insulted “on the basis of race, color, creed, religion or gender” was viewpoint dis- criminatory because certain fighting words could be used only by those arguing in favor of tolerance, not their opponents). Section 2(a) discriminates against disparaging or offensive viewpoints. 2 Under this analysis, § 2(a) is presumptively invalid, and must satisfy strict scrutiny to be found constitutional. Although the Supreme Court has yet to decide whether strict scrutiny attaches to restrictions on commercial speech that are viewpoint discriminatory, there is reason to believe it is an issue worth consid- ering. Sorrell, 131 S. Ct. at 2664. This uncertainty is likely of no consequence, however, because it seems likely that section 2(a) cannot survive even the inter- mediate scrutiny that any restriction on commercial speech receives under Central Hudson. B. Central Hudson Test for Commercial Speech In Central Hudson, the Supreme Court laid out the framework for determining the constitutionality of restrictions on commercial speech. 447 U.S. at 566, 100 S. Ct. 2343. First, commercial speech “must con- 2 It is incorrect to imply that the Lanham Act treats “laudatory” and disparaging trademarks the same. The Lanham Act always prohibits registration of disparaging marks. In contrast, the Lan- ham Acts prohibits the registration of “merely descriptive” marks unless or until they acquire distinctiveness or secondary meaning. 15 U.S.C. § 1052(f). Once a laudatory or descriptive mark attains secondary meaning as a source identifier, such marks are eligible for registration; disparaging trademarks are never eligible for reg- istration. 155a cern lawful activity and not be misleading.” Id. If this is the case, we ask whether (1) “the asserted gov- ernmental interest is substantial,” (2) “the regulation directly advances the governmental interest asserted,” and (3) the regulation “is not more extensive than is necessary to serve that interest.” Id. First, we ask whether the regulated activity is law- ful and not misleading. Id. at 563-64, 100 S. Ct. 2343. There is nothing illegal about a disparaging trademark such as THE SLANTS, and Mr. Tam does not chal- lenge the Lanham Act’s proscription on the registra- tion of misleading marks. Disparaging trademarks satisfy the first prong of the Central Hudson frame- work. Next, for speech that is lawful and not misleading, a substantial government interest independent of dis- approving the speech’s message must justify the reg- ulation. Id. at 566, 100 S. Ct. 2343; Sorrell, 131 S. Ct. at 2668 (2011) (law must not “seek to suppress a disfa- vored message”); Sorrell, 131 S. Ct. at 2670 (rejecting message-based interest as “contrary to basic First Amendment principles”). The government has not put forth any substantial interests that would justify § 2(a)’s bar against disparaging marks. One purpose of the disparagement provision of § 2(a) is evident on its face, and it is message-based: to discourage the use of trademarks that are disparaging to persons, institutions, beliefs, or national symbols. The legisla- tive history reinforces the conclusion that Congress enacted § 2(a) because it disapproved of the message conveyed by disparaging marks. See Hearings on H.R. 4744 Before the Subcomm. on Trademarks of the 156a House Comm. on Patents, 76th Cong., 1st Sess. 18-21 (1939) (statement of Rep. Thomas E. Robertson) (Rep. Maroney) (“[W]e would not want to have Abraham Lincoln gin.”). This is plainly true of the reason for denying registration here, as in other disparagement cases. See, e.g., In re Geller, 751 F.3d 1355 (Fed. Cir. 2014) (affirming rejection of STOP THE ISLAMISA- TION OF AMERICA); Blackhorse v. Pro-Football, Inc., 111 U.S.P.Q. 2d 1080 (TTAB June 18, 2014) (can- celling registration of REDSKINS); In re Lebanese Arak Corp., 94 U.S.P.Q. 2d 1215 (TTAB Mar. 4, 2010) (refusing to register KHORAN for wine); In re Heeb Media, LLC, 89 U.S.P.Q. 2d 1071 (TTAB Nov. 26, 2008) (refusing to register HEEB); In re Squaw Val- ley Dev. Co., 80 U.S.P.Q. 2d 1264 (TTAB May 23, 2006) (refusing to register SQUAW VALLEY for one class of goods, but registering it for another). And there is no doubt that these marks are protected speech, not categorically excluded from First Amendment protec- tion.3 3 Disapproval of the message is also the apparent basis for deny- ing under § 2(a) the registration of many “scandalous” marks that are not obscene. See, e.g., In re Fox, 702 F.3d 633 (Fed. Cir. 2012) (affirming rejection of COCK SUCKER for chocolate rooster lollipops); In re Boulevard Entm’t, Inc., 334 F.3d 1336 (Fed. Cir. 2003) (affirming rejection of 1-800-JACK-OFF and JACK-OFF for adult entertainment services over telephone); In re Betty Bangs, LLC, 2013 WL 5407261 (TTAB July 9, 2013) (refusing to register I BANGED BETTY); In re Kirby, 2008 WL 4674566 (TTAB Sept. 22, 2008) (refusing to register COCAINE for energy drinks); In re Love Bottling Co., 2005 WL 1787238 (TTAB June 22, 2005) (refus- ing to register W.B. WIFE BEATER); In re Zaharoni, 2005 WL 363392 (TTAB Jan. 4, 2005) (refusing to register THE COM- 157a While the government may argue that it has an interest in discouraging the use of disparaging marks that may be offensive to persons, institutions, beliefs, or national symbols, this is not a legitimate govern- ment interest. See Sorrell, 131 S. Ct. at 2670. The Supreme Court has “consistently held that the fact that protected speech may be offensive to some does not justify its suppression.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983). It is a “bedrock principle underlying the First Amendment . . . that the Government may not prohibit the expression of an idea simply be- cause society finds the idea itself offensive or disagree- able.” United States v. Eichman, 496 U.S. 310, 319, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990). Courts have attributed an additional government interest to § 2(a), reasoning that it acts as “a judgment by the Congress that such marks not occupy the time, services, and use of funds of the federal government.” See, e.g., McGinley, 660 F.2d at 486. This cannot warrant the government’s regulation of these marks. Trademark registration is entirely user-funded, not taxpayer-funded, so registering these marks costs the government little money. Furthermore, the govern- ment must expend significant funds defending its refusal decisions under the statute as it currently stands, so it is not clear that the statute succeeds in saving the government money. See McGinley, 660 F.2d at 487 (Rich, J., dissenting) (“More ‘public funds’ PLETE A**HOLE’S GUIDE TO . . . ); In re Runsdorf, 171 U.S.P.Q. 443 (TTAB 1971) (refusing to register BUBBY TRAP for brassieres). 158a are being expended in the prosecution of this appeal than would ever result from the registration of the mark.”). Finally, labeling this sort of interest as substantial would create an end-run around the “unconstitutional conditions” doctrine, as virtually all government bene- fits involve the time, services, or funds of the federal government. Nearly every benefit could be justified under this ground, no matter how minimal. Another interest that has been proposed to justify § 2(a)’s ban on disparaging marks is the government’s interest in maintaining a well-functioning trademark system that harmonizes state and federal trademark law. In enacting the Lanham Act, Congress codified a number of long-standing common law trademark principles; the argument posits that striking down § 2(a)’s bar on disparaging marks would disrupt these principles. However, this argument relies on the no- tion that § 2(a)’s bar on disparaging marks is merely a codification of a common law bar on disparaging marks. That is not the case. While states have long refused to enforce vulgar or misleading trademarks, there is no similar history of a bar on disparaging marks. In drafting § 2(a)’s bar on disparaging marks, Congress was creating new law, not codifying clear and established principles. See Univ. of Notre Dame Du Lac v. J.C. Gourmet Food Imports Co., 703 F.2d 1372, 1376 (Fed. Cir. 1983) (“Although not articulated as such, it appears that the drafters sought by § 2(a) to embrace concepts of the right to privacy, an area of the law then in an embryonic state.”); see also Act of Feb. 20, 1905, ch. 592, § 5, 33 Stat. 724 (1905) (barring reg- 159a istration of scandalous and immoral marks, but not disparaging marks). Section 2(a)’s bar on disparag- ing marks was employed only rarely until recently, and its application was inconsistent. See, e.g., Doughboy Indus., Inc. v. The Reese Chemical Company, 88 U.S.P.Q. (BNA) ¶ 227 (P.T.O. Jan. 25, 1951) (refusing to register mark “Dough-boy” in connection with “a prophylactic preparation for the prevention of venere- al diseases”); In re Anti-Communist World Freedom Cong., Inc., 161 U.S.P.Q. (BNA) ¶ 304 (TTAB Feb. 24, 1969) (refusing to register mark consisting of hammer and sickle with an “X” over it); In re Condas S.A., 188 U.S.P.Q. (BNA) ¶ 544 (P.T.O. July 31, 1975) (finding mark JAP not disparaging to Americans of Japanese ancestry); Greyhound Corp. v. Both Worlds, Inc., 6 U.S.P.Q. 2d 1635 (TTAB Mar. 30, 1988) (finding that mark depicting a defecating dog disparaged Greyhound’s trademarked running dog logo). And in the early disparagement cases, courts did not base the contours of what it means to be disparaging on the common law. See generally id. Striking down § 2(a)’s bar on disparaging marks would not disrupt long-standing, well-balanced common law traditions. Trademarks—which are applied to private goods to identify the source of the goods for consumers—are private speech, not “government speech.” Cf. Pleas- ant Grove City v. Summum, 555 U.S. 460, 467, 129 S. Ct. 1125, 172 L. Ed. 2d 853 (2009) (“The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”). Although the government publishes regis- tered trademarks in the Trademark Principal Regis- ter, it does so not to communicate a particular message 160a or select a particular viewpoint; rather, it publishes trademarks to provide notice that a mark has been registered. Despite this, supporters of § 2(a) have claimed that the government has an interest in not being seen to give a stamp of approval, imprimatur, to scandalous and disparaging terms. For this interest to be substantial, the public must believe that trade- marks carry the stamp of government approval. The U.S. government recently explained that “ ‘issuance of a trademark registration’ does not ‘amount[] to the awarding of the U.S. Government’s ‘imprimatur.’ ” Brief of United States at 21, Pro-Football, Inc. v. Blackhorse, No. 14-cv-1043 (GBL/IDD) (E.D. Va. Mar. 23, 2015), ECF No. 109 (quoting In re Old Glory Con- dom Corp., 26 U.S.P.Q. 2d 1216, 1219-20 n.3 (TTAB Mar. 3, 1993) (alterations in original)). As the Trade- mark Trial and Appeal Board wrote: The duty of this Office . . . in reviewing ap- plications for registration is nothing more and nothing less than to register those marks that are functioning to identify and distinguish goods and services in the marketplace. . . . Just as the issuance of a trademark registration by this Office does not amount to a government endorsement of the quality of the goods to which the mark is ap- plied, the act of registration is not a government imprimatur or pronouncement that the mark is a “good” one in an aesthetic, or any analogous, sense. Old Glory Condom Corp., 26 U.S.P.Q. 2d at 1219-20 n.3 (emphasis added). The public is not likely to believe that a registered trademark conveys the imprimatur of 161a the government. The trademark is printed on private property, in fact commercial goods, not on any govern- ment property. The purpose served by trademarks, to identify the source of the goods, is antithetical to the notion that the trademark is tied to the government. We have yet to be presented with any substantial government interests that would justify the PTO’s refusal to register disparaging marks. Without this, § 2(a) cannot satisfy the Central Hudson test. It is time to revisit the holding in McGinley in light of sub- sequent developments in the law and the trademark registration funding regime. 162a APPENDIX C UNITED STATES PATENT AND TRADEMARK OFFICE TRADEMARK TRIAL AND APPEAL BOARD Serial No. 85472044 IN RE SIMON SHIAO TAM Sept. 26, 2013 OPINION Before: ROGERS, Chief Administrative Trademark Judge, and KUHLKE and TAYLOR, Administrative Trademark Judges. Opinion by KUHLKE, Administrative Trademark Judge: Applicant, Simon Shiao Tam, seeks registration on the Principal Register of the mark THE SLANTS in standard characters for services identified as “enter- tainment in the nature of live performances by a mu- sical band,” in International Class 41.1 1 Application Serial No. 85472044 was filed on November 14, 2011, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on an allegation of first use and use in commerce on Novem- ber 15, 2006. 163a Registration has been refused under Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a), on the ground that applicant’s mark “consists of or includes matter which may disparage or bring into contempt or disre- pute persons, institutions, beliefs or national symbols under Trademark Act Section 2(a).”2 E.A. Br. p. 3. When the refusal was made final, applicant ap- pealed and requested reconsideration. On December 20, 2012, the examining attorney denied the request for reconsideration. Subsequently, the appeal was resumed and has been fully briefed. We affirm the refusal. Arguments and Evidence The examining attorney contends that THE SLANTS is a highly disparaging reference to people of Asian descent, that it retains this meaning when used in connection with applicant’s services, and that a sub- stantial composite of the referenced group finds it to be disparaging. In support of this contention the ex- amining attorney has submitted several definitions from various dictionaries and reference works that label “slant” as a derogatory word, including the fol- lowing definitions: Slant/Slant-eye n. a derog. Term for an Oriental person The Cassell Dictionary of Slang (1999); 2 This is applicant’s second application for the mark THE SLANTS for nearly identical services. Application Serial No. 77952263 was also refused under Section 2(a) as disparaging. Ap- plicant appealed that refusal to the Board, but the case was dis- missed for failure to file a brief. E.A. Br. n.1; Office Action n.1 (June 20, 2012). 164a Slant 1. A derogatory term used to refer to those of Asian descent. More accurately, it tends to refer to anybody with slanted eyes. Urban Dictionary (www.urbandictionary.com); Slant noun US, derog. and offensive = slant-eye noun. Oxford Reference Online www.oxford reference.com; Slant noun a. South Asian person US 1942 Offensive The New Partridge Dictionary of Slang and Uncon- ventional English Vol. II (2006) (http://books. google.com); and [S]lant a derogatory nickname for any Oriental. From the shape of the Oriental eyes. Slang and Euphemism (2d abridged ed. 1991).3 3 Other definitions from reference works and websites include: “Slant-eye, Slant pejorative term for a person of Far East- ern origin (Chinese, Japanese, Korean, Vietnamese etc.) Derived from the term for those who have epicanthic folds.” List of ethnic slurs (www.wikipedia.org); “Slant . . . The noun is from 1655. Derogatory slang sense of ‘Oriental, slant-eyed person’ is recorded from 1943, from earlier slant-eyes (1929).” Online Etymology Dic- tionary (www.etymonline.com); “Slant - Asians - Facial Description—referring to the eyes.” Ethnic Slurs www.asianjoke.com; “Slant, slanteye, slant-eye. A derogatory reference to Asians, based on the epicanthic fold, or flap, over the eyes of some Asian peoples, giving the eyes a slanted look.” The color of words: an encyclopaedic dictionary of ethnic bias in the United States (1997); 165a In one of the submissions other contextual mean- ings are included in the definition: Slant n. 1. a. A line, plane, course, or direction that is other than perpendicular or horizontal, a slope, b. A sloping thing or piece of ground; 2. Printing A virgule; 3. a. A personal point of view or opinion, b. A bias; 4. Offensive Slang Used as a disparaging term for a person of East Asian birth or descent. The American Heritage Dictionary of the English Language retrieved from Credo Reference www.credoreference.com and Wordnik www.wordnik.com (emphasis added). The examining attorney also included printouts from applicant’s web page located at www.myspace. com/theslants, including the one depicted below: “Forbidden Terminology Derogatory Racial Terms Slant refers to the perceived shape of Asian eyelids” 21st Cen- tury American English Compendium (3rd rev. ed. 2006); “slope and slant, slanteye(s) an East Asian [including Japa- nese] or Southeast Asian person having the ‘oriental’ epi- canthic folds. (Intended and perceived as derogatory. User is considered to be racially bigoted. . . . )” Forbidden American English (1995); and “ ‘Jap’ is a derogatory term! . . . And, so are terms like ‘chink’ . . . and “slant.’ ” Japanese American Citizens League Anti-Hate Program www.lacl.org. “The Japanese American Citizens League is a national organiza- tion whose ongoing mission is to secure and maintain the civil rights of Japanese Americans and all others who are victimized by injustice and bigotry.” www.jacl.org. 166a Further, the band’s entry in Wikipedia is of record and references that “The band name, The Slants, is derived from an ethnic slur for Asians.” www. wikipedia.org.4 This entry also includes the following quote attributed to applicant: “We want to take on these stereotypes that people have about us, like the slanted eyes, and own them. We’re very proud of be- ing Asian—we’re not going to hide that fact. The re- action from the Asian community has been positive.” 4 This Wikipedia entry was attached to the First Office Action (January 6, 2012); therefore, applicant had an opportunity to rebut it. In re Cook Medical Technologies LLC, 105 USPQ2d 1377, 1382 n.2 (TTAB 2012); In re Carrier Consulting Group, 84 USPQ2d 1028, 1032-33 (TTAB 2007). Applicant did not do so. As will be discussed infra, applicant does not dispute the historical pejorative use of the term but, rather, can be characterized as intending to embrace and redefine the term. 167a Finally, the examining attorney submitted printouts of online articles which report that individuals repre- senting Asian groups or in their individual capacity consider the term “slant,” its plural “slants” and even specifically applicant’s mark THE SLANTS to be disparaging terms. A few examples are set forth be- low: A few years back, the Oregon Commission on Asian Affairs AND the Asian American Youth Leadership Conference, both LOCAL Oregon organizations, pulled support from the Slants, citing their offen- sive name. I’ve got nothing against the Slants other than their name, which is racially offensive . . . “bigWOWO” at www.bigwowo.com (2010) (emphasis in original); Earlier this year, the band experienced first-hand the complex and diverse political perspectives of Asian Americans. Young5 was initially slated to give the keynote address at the 2009 Asian Ameri- can Youth Leadership Conference in Portland. But some conference supporters and attendees felt the name of the band was offensive and racist, and out of respect for these opinions the conference or- ganizers decided to choose someone less controver- sial. “The Asian Reporter” (August 4, 2009); “Young [applicant] called the new band The Slants —a name that has been controversial from the 5 Applicant, Simon Shiao Tam, is also known as Simon Young. See Office Action (January 6, 2012) p. 57 (www.bigwowo.com/ 2011/04/the-slants-and-bigwowos-support-of-the-u-s-patent-and- trademark-office). 168a start. . . . It wasn’t until he posted adver- tisements for Asian bandmates and people re- sponded by calling him racist that Young realized the name pushed some hot buttons.” The Orego- nian (December 4, 2010); and Oregon Governor Cancels Asian Band the Slants’ Performance at Asian Youth Conference . . . However, the OCAA withdrew support of the event because they found The Slants’ name to be offensive towards the Asian community. Fearing that the action would trigger similar responses with other supporters, the AAYLC had no choice but to select an alternate speaker and cancel the band’s appear- ance. “The Daily Swarm” http://64.34.174.165/ headlines (2010); In response to the refusal, applicant submitted the following dictionary definition:6 Slant n. 1. a. A line, plane, course, or direction that is other than perpendicular or horizontal; a slope. b. A sloping thing or piece of ground. 2. Printing A virgule. 3. a. A personal point of view or opinion b. a bias 4. Offensive Slang Used as a disparaging term for a person of East Asian birth or ancestry.7 6 We only include the noun definitions inasmuch as the verb defi- nitions have less relevance to the mark THE SLANTS wherein “slants” is used as a noun, as determined by use of the definite article “the” immediately preceding the word “slants.” 7 American Heritage Dictionary of the English Language (http:// ahdictionary.com May 2, 2012). Applicant also submitted the full excerpt of definitions for “slant” from the Oxford English Diction- 169a In addition, applicant submitted four third-party registrations and an application for marks that contain the word “slant.” See Reg. No. 4123704 for the mark SLANT for, inter alia, skateboards, water skis, surf skis, skis, snow boards; Reg. No. 3894536 for the mark SLANT for, inter alia, motion picture film productions, production of radio or television programs; and two marks for serving ware for serving food, the standard character mark SLANT (Reg. No. 3437230) and the design mark (Reg. No. 3437238).8 Applicant’s primary contention is that his trade- mark has been “refused registration on the basis of Applicant’s race . . . [and given the] failure of proof and misapplication of law, the evidentiary record does not support the PTO’s conclusions that the Ap- plication for registration of THE SLANTS should be ary which includes ten different meanings with the offensive slang meaning as the last entry. 8 The fifth example is an application (Serial No. 85269787) and, as such, is of limited probative value. Glamorene Products Corp. v. Earl Grissmer Co., Inc., 203 USPQ 1090, 1092 n.5 (TTAB 1979) (an application is evidence only of its filing). 170a denied.” App. Br. pp. 3-4. Applicant asserts that the examining attorney failed to provide evidence that the mark is “inherently offensive” and takes issue with the examining attorney’s reliance on one possible meaning of the word “slant,” which resulted in the examining attorney’s search parameters using the words “slant” and “derogatory” to “confirm” his re- fusal. App. Br. pp. 12-14. As to the Office’s evidence pertaining to applicant’s services and manner of use, applicant argues that “the grounds for refusal constituted error [for] at least two reasons . . . (1) They improperly condition reg- istration on the ethnic background of an applicant, and (2) they amount to an unprecedented prohibition against registration by a particular individual or group of people because of their past use of a mark.” App. Br. p. 17. Specifically, applicant contends that, based on the examining attorney’s logic, non-Asians would be entitled to registration of the word “slants” but Asians are not. Id. Applicant goes on to suggest that the only rebuttal to the examining attorney’s refusal “would have been a submission proving that the band was not entirely Asian and hence entitled to registra- tion, a patently offensive proposition.” App. Br. p. 18. With regard to applicant’s second point concerning its past use, applicant asserts that the refusal is “de- pendent on the identity of the person, rather than the content of the application.”9 Id. 9 The “past use” is in reference to the examining attorney’s evi- dence of applicant’s use and public perception of that use that is prior to applicant’s November 14, 2011 filing date. 171a Applicant concludes that: The refusal, rather, is based on who the Applicant is. It follows that if anyone else on earth—Asian or otherwise—submitted an application to register THE SLANTS that was identical to the Application here, registration would have been allowed. Con- comitantly, Applicant could never register THE SLANTS no matter the content of the application. This result would be a surprising and troubling reading of 15 U.S.C. § 1052(a), and one that is not supported by law, policy or common sense. Nei- ther the ethnic identity of Applicant, the extent to which he associates in his use of the mark with oth- er Asians, the degree to which he makes use of his own cultural heritage, or his identity in any sense at all should be of relevance concerning registration of THE SLANTS as a trademark for “entertainment in the nature of live performances by a musical band.” App. Br. p. 19. Law Registration of a mark which consists of matter which may disparage, inter alia, “persons,” is prohib- ited under Section 2(a) of the Trademark Act. To determine whether a proposed mark is disparaging the Board applies the following two-part test: 1) what is 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 172a mark is used in the marketplace in connection with the goods or services; and 2) if that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a sub- stantial composite of the referenced group. In re Lebanese Arak Corp, 94 USPQ2d 1215, 1217 (TTAB 2010);10 In re Heeb Media LLC, 89 USPQ2d 1071, 1074 (TTAB 2008); In re Squaw Valley Devel- opment Co., 80 USPQ2d 1264, 1267 (TTAB 2006). The burden of proving that a mark is disparaging rests with the USPTO. Squaw Valley, 80 USPQ2d at 1271. Whether a proposed mark is disparaging must be determined from the standpoint of a substantial com- posite of the referenced group (although not neces- sarily a majority) in the context of contemporary atti- tudes. Squaw Valley, 80 USPQ2d at 1269; Harjo v. Pro-Football, Inc., 50 USPQ2d 1705, 1758 (TTAB 1999), rev’d on other grounds 284 F. Supp. 2d 96, 68 USPQ2d 1225 (D.D.C. 2003). Depending on the facts of the case, a proposed mark may be: (1) an innocuous term that in the context of the goods or services is disparaging, Lebanese Arak, 94 USPQ2d at 1223 (likely meaning of KHORAN is the Islamic holy text and use for wine disparages religion and beliefs of Muslim-Americans); see also Doughboy Industries, Inc. v. Reese Chemical Co., 88 USPQ 227 (PTO Exmr. In Chief 1951) (Doughboy refers to World 10 See the Lebanese Arak decision for a discussion of the various provisions of Section 2(a) and the differentiation between terms as- serted to be disparaging and those asserted to be scandalous. 173a War I American soldier as reinforced by picture of soldier on packaging and use on “a prophylactic prep- aration for the prevention of venereal diseases” dis- parages the soldiers); (2) a disparaging term that may have a nondisparaging meaning in a specific context, Squaw Valley, 80 USPQ2d 1264 (SQUAW when used with ski-related goods and services means Squaw Valley ski resort under the first part of the test, but disparaging meaning remains as to other non ski- related goods and services); or (3) a disparaging term that has no nondisparaging meanings in any context, and remains disparaging despite the applicant’s goods or services, actual use or intent, In re Heeb Media LLC, 89 USPQ2d 1071 (TTAB 2008) (applicant’s good intentions and inoffensive goods and services do not obviate finding that HEEB is disparaging in context of the goods and services; and mixed opinion among members of the referenced group does not erase the perception of a substantial composite who find it dis- paraging). Findings/Analysis We must first determine, based on the evidence of record, the “likely meaning” of THE SLANTS; and then, if there is a meaning that invokes a group of persons, turn to consider whether that meaning may be disparaging to a substantial composite of the ref- erenced group. What is the likely meaning? The mere fact that the term has several meanings, even when many may be innocuous, does not, as appli- cant seems to argue, foreclose the possibility that the 174a proposed mark is disparaging to a group of persons.11 When we take into account the “nature of the identi- fied services,” in this case, live performances by a musical band, we are faced with a term that necessari- ly identifies people, i.e., the live performers. Thus, those who attend the live performances will necessari- ly understand THE SLANTS to refer to the persons who comprise the musical band. Further, we must consider the “manner in which the mark is used in the marketplace in connection with the services,” Lebanese Arak, 94 USPQ2d at 1217, which the record in this case shows to involve touting the slang meaning of “slants.” Thus, it is abundantly clear from the record not only that THE SLANTS, used for the identified services, would have the “likely meaning” of people of Asian descent but also that such meaning has been so perceived and has prompted significant responses by prospective attendees or hosts of the band’s perfor- mances. The evidence of public perception of the meaning of THE SLANTS, as used in connection with applicant’s services, shows that meaning to be a de- rogatory reference to people of Asian descent. Applicant argues that 1) the proposed mark is not inherently disparaging and there are no additional elements to make it so, and 2) there is nothing about the services that make it disparaging. The problem 11 It appears to be applicant’s position that a term is “inherently disparaging” when there is only one meaning for the word and that meaning is disparaging. However, when there are multiple defini- tions of a word and the manner of use of the word in the market- place only points to the disparaging meaning, the term cannot be saved by the other irrelevant meanings. 175a with applicant’s analysis is that it ignores “the manner in which the mark is used in the marketplace.” Id. The musical group, in its advertising and on its web- site, promotes the “likely meaning” of the mark to be people of Asian descent by, for example, displaying the wording “THE SLANTS” next to a depiction of an Asian woman, utilizing rising sun imagery and using a stylized dragon image. In addition, applicant actively seeks to associate his services with this meaning as a way to embrace this slang meaning and to “own” the stereotype represented by THE SLANTS. That ap- plicant, or even the entire band, may be willing to take on the disparaging term as a band name, in what may be considered an attempt not to disparage, but rather to wrest “ownership” of the term from those who might use it with the intent to disparage, and that some members of the referenced group may support applicant’s use, does not mean that all members of the referenced group of persons share applicant’s view. In Heeb Media, 89 USPQ2d at 1077, we faced and rejected a similar argument, holding that “[t]he fact that applicant has good intentions with its use of the term does not obviate the fact that a substantial com- posite of the referenced group find the term objec- tionable.” Applicant contends that the examining attorney based his conclusion as to “likely meaning” on the fact that “applicant is a founding member of a band (the Slants) that is self-described as being composed of members of Asian descent.” App. Br. p. 4, quoting examining attorney’s brief. Applicant argues further that: 176a The Examining Attorney’s rationale turned the en- tire policy justification for Section 2(a) on its head. It was a refusal to register based on the ethnic background of Applicant and his associates that was offensive. Unless reversed by the Board this for- mulation inevitably will involve the Patent and Trademark Office in inappropriate and constitution- ally suspect inquiries concerning the ethnicity of applicants, their associates and their activities. App. Br. p. 4. Applicant is effectively arguing that because he actively seeks to convey a message that he has taken ownership of the term and its meaning, and intends no disparagement of members of the referenced group, the Office is prohibited from finding that THE SLANTS is disparaging to others, precisely because of applicant’s race. In other words, applicant intention- ally adopted the mark because it is disparaging to some, but we should ignore that because he is Asian and should not be perceived as intending to disparage other Asians but, rather, as redefining the term in a positive way. In essence, applicant does not address the injury that use of THE SLANTS may cause to other members of the referenced group and instead focuses on the asserted injury to himself, which he attributes to the examining attorney’s improper con- sideration of his ethnicity. In the same way the par- ticular ethnicity of the people behind the corporate applicant in Heeb Media did not serve to obviate or remove the disparaging nature of the term for others, here, too, applicant’s ethnicity does not make his use 177a unlikely to be perceived as conveying the disparaging meaning of the term SLANTS for Asian Americans. The focus of the inquiry into whether a mark is disparaging is not on applicant’s race but rather on the referenced group’s perception of the likely meaning of the mark.12 The evidence clearly shows both that members of the referenced group ascribe the deroga- tory meaning based on applicant’s manner of use and that members of the referenced group find it objec- tionable. There are no “other elements” in the mark to affect its meaning, and there is nothing about the way the mark is used in the marketplace from which one would understand the term as meaning anything other than an Asian person. Thus, the refusal is properly based on the perceptions of the referenced group and not on applicant’s or his band-mates’ ethnic background. The interpretation of “slant” as meaning “person of Asian descent” (as opposed to other definitions of this word) arises because applicant’s mark is used in a manner to mean “person of Asian descent.” Appli- cant cannot claim ownership and redefine the term without a use that acknowledges the meaning that must be overcome. However, it is very important to note that a finding that THE SLANTS is disparaging is not dependent on applicant’s ethnicity, but on the circumstances related to his use of the term. An 12 Section 2(a), 15 U.S.C. § 1052(a) focuses on the nature of the mark, not the applicant: “No trademark . . . shall be re- fused registration . . . on account of its nature unless it . . . [c]onsists of or comprises . . . matter which may disparage. . . . ” (emphasis added). 178a application by a band comprised of non-Asian- Americans called THE SLANTS that displayed the mark next to the imagery used by applicant shown supra would also be subject to a refusal under Section 2(a). Finally, applicant’s objection that the evidentiary record includes applicant’s “past use,” (i.e., use prior to the filing date of this application) and that such evi- dence is not within the four corners of the application, ignores the first prong of the test where we look to the “manner of use” which necessarily goes beyond the “four corners” of the application. Moreover, a deter- mination about the view of the referenced group re- quires the USPTO to go outside the four corners of the application even if only to reference a dictionary defi- nition that labels a term as derogatory. As to the date of the evidence, applicant bases his application on his use of the mark since 2006 and all evidence from then until the present is relevant.13 Notably, appli- 13 Regarding the four corners of an application, in its brief, appli- cant acknowledges in general that specimens may demonstrate dis- paraging use. App. Br. p. 10. As noted earlier, applicant aban- doned his prior application by failing to file a brief on ex parte ap- peal. Applicant then filed this application, presumably with dif- ferent specimens of use. As noted by the examining attorney: [T]hat applicant cleverly chose specimens that avoided asso- ciations with Asians or Asian culture is not evidence that the mark is not used in a way to conjure up the derogatory mean- ing and to be disparaging to Asians. . . . It is worth mentioning that applicant appears to have reversed course on its arguments for registrability, arguing in the prior applica- tion that because the applied-for mark was being used by Asian- Americans as a self-descriptor, it could not be dispar- 179a cant has not submitted evidence rebutting the evidence of likely meaning, to support, for example, the propo- sition that due to applicant’s change in its manner of use members of the referenced group no longer per- ceive it as having a disparaging meaning. aging, while in this case arguing that there is no indication in the application that the mark is in any way associated with Asians or Asian-Americans. . . . Applicant’s argument that the Office is limited to the four-corners of the application in determining the disparaging nature of the mark is too clever by half. Were applicant’s theory correct, any smart applicant (or smart attorney) could easily draft an identifica- tion of goods and services that skates around any mention of a group or persons associated with a particular term, while at the same time, using the mark in such a way as to associate the mark with the disparaged group. Office Action (June 20, 2012). In response to the examining attorney, applicant, in its Request for Reconsideration, states that the refusal: . . . is premised entirely on outside evidence of Appli- cant’s aggressively Asian-themed artistic and commercial identity as used in the past with the mark. [and the refusal is based on] his use of the mark in circumstances not reflected in the Application but relied on as grounds for refusal in a previous application [that has] been deemed offensive by third parties. Req. Recon. pp. 6-7. Applicant’s own actions highlight the wisdom of our well-settled test for determining whether a mark is disparaging, which re- quires not only an assessment of information on the “four cor- ners” of the application, such as the mark and the goods or ser- vices, but also looks at the manner in which the applicant uses the mark. Indeed, we also look at an applicant’s manner of use to inform analysis of other types of refusals, such as those based on genericness. See, e.g., In re DNI Holdings Ltd., 77 USPQ2d 1435, 1439-40 (TTAB 2005). 180a Is it disparaging to a substantial composite? Having determined the likely meaning (in the con- text of the goods and services and how applicant uses the mark), we look to the second prong: is the mark disparaging to a substantial composite of the refer- enced group? The record establishes that the slang term “slant” or its plural “slants,” when used to indi- cate ethnicity, is disparaging to a substantial compo- site of the referenced group. While there is some mention in the record of sup- port for applicant’s mark in the Asian community (to be clear, quoted statements from applicant noting such support), “[o]ur consideration of whether the term is disparaging is not restricted to the perception of ap- plicant’s’’ fans who have no objection to the name of applicant’s band. Heeb Media, 89 USPQ2d 1077. Rather, we are charged with taking into account the views of the entire referenced group who may encoun- ter applicant’s music entertainment services in any ordinary course of trade for the identified services. Thus, all members of the Asian-American public may encounter the mark THE SLANTS in advertising in newspapers, billboards or on a website. The dictionary definitions, reference works and all other evidence unanimously categorize the word “slant,” when meaning a person of Asian descent, as disparaging. Moreover, the record includes evidence of individuals and groups in the Asian community ob- jecting to use of the term in the context of applicant’s band. Taken as a whole we find the record contains substantial evidence to support the refusal. Squaw Valley, 80 USPQ2d at 1272. Finally, applicant does 181a not dispute that the band’s name is derived from an ethnic slur and the evidence thereof stands unrebut- ted. The fact that applicant has good intentions under- lying his use of the term does not obviate the fact that a substantial composite of the referenced group find the term objectionable. Heeb Media, 89 USPQ2d at 1077. As the examining attorney states “while appli- cant may not find the term [disparaging], applicant does not speak for the entire community of persons of Asian descent and the evidence indicates that there is still a substantial composite of persons who find the term in the applied-for mark offensive.” Office Ac- tion (January 6, 2012). Thus, despite applicant’s as- sertion that “this is not yet another case of a member of an ethnic group seeking registration of a supposedly offensive slur on the ground that group members, or he in particular, have ‘embraced’ the term” (App. Br. p. 3), in fact it is just such a case. Applicant’s argument that other SLANT marks have been registered merely underscores why, in cases such as these, where a term may have different mean- ings depending on the context, the USPTO looks to the manner of use to ascertain whether potential consum- ers would perceive the term as disparaging. None of the marks in these third-party registrations refer to people. We emphasize that this decision only pertains to applicant’s right to register the term and “it is clear that the PTO’s refusal to register [applicant’s] mark does not affect [his] right to use it. No conduct is proscribed, and no tangible form of expression is sup- 182a pressed. Consequently, [applicant’s] First Amend- ment rights would not be abridged by the refusal to register [his] mark.” In re McGinley, 211 USPQ at 672, citing Holiday Inn v. Holiday Inn, Inc., 534 F.2d 312, 189 USPQ 630, 635 n.6 (CCPA 1976). See also Mavety, 31 USPQ2d at 1928. This case is solely about whether the applicant may “call upon the resources of the federal government” to obtain federal registration of the mark on the Principal Register in order to assist applicant in enforcing the mark. See In re Fox, 702 F.3d 633, 105 USPQ2d 1247, 1252. Because we find it disparaging, however, the mark is disqualified under Section 2(a) for registration. Decision: The refusal to register under Section 2(a) is affirmed. 183a APPENDIX D 15 U.S.C. 1052 provides: Trademarks registrable on principal register; concurrent registration No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical indication which, when used on or in connection with wines or spir- its, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 3501(9) of title 19) enters into force with respect to the United States. (b) Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof. (c) Consists of or comprises a name, portrait, or sig- nature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow. 184a (d) Consists of or comprises a mark which so re- sembles a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive: Provided, That if the Director determines that confusion, mistake, or deception is not likely to result from the continued use by more than one person of the same or similar marks under conditions and limitations as to the mode or place of use of the marks or the goods on or in connection with which such marks are used, concurrent registrations may be issued to such persons when they have become entitled to use such marks as a result of their concurrent lawful use in commerce prior to (1) the earliest of the filing dates of the applications pending or of any registration issued under this chapter; (2) July 5, 1947, in the case of registrations previously issued under the Act of March 3, 1881, or February 20, 1905, and con- tinuing in full force and effect on that date; or (3) July 5, 1947, in the case of applications filed under the Act of February 20, 1905, and registered after July 5, 1947. Use prior to the filing date of any pending application or a registration shall not be required when the owner of such application or registration consents to the grant of a con- current registration to the applicant. Concurrent regis- trations may also be issued by the Director when a court of competent jurisdiction has finally determined that more than one person is entitled to use the same or simi- lar marks in commerce. In issuing concurrent registra- tions, the Director shall prescribe conditions and limita- tions as to the mode or place of use of the mark or the 185a goods on or in connection with which such mark is regis- tered to the respective persons. (e) Consists of a mark which (1) when used on or in connection with the goods of the applicant is merely descriptive or deceptively misdescriptive of them, (2) when used on or in connection with the goods of the ap- plicant is primarily geographically descriptive of them, except as indications of regional origin may be registrable under section 1054 of this title, (3) when used on or in connection with the goods of the applicant is primarily geographically deceptively misdescriptive of them, (4) is primarily merely a surname, or (5) comprises any matter that, as a whole, is functional. (f ) Except as expressly excluded in subsections (a), (b), (c), (d), (e)(3), and (e)(5) of this section, nothing in this chapter shall prevent the registration of a mark used by the applicant which has become distinctive of the appli- cant’s goods in commerce. The Director may accept as prima facie evidence that the mark has become distinc- tive, as used on or in connection with the applicant’s goods in commerce, proof of substantially exclusive and contin- uous use thereof as a mark by the applicant in commerce for the five years before the date on which the claim of distinctiveness is made. Nothing in this section shall prevent the registration of a mark which, when used on or in connection with the goods of the applicant, is primarily geographically deceptively misdescriptive of them, and which became distinctive of the applicant’s goods in com- merce before December 8, 1993. A mark which would be likely to cause dilution by blurring or dilution by tarnishment under section 1125(c) of this title, may be refused registration only pursuant to a pro- 186a ceeding brought under section 1063 of this title. A reg- istration for a mark which would be likely to cause dilu- tion by blurring or dilution by tarnishment under section 1125(c) of this title, may be canceled pursuant to a pro- ceeding brought under either section 1064 of this title or section 1092 of this title. No. 15-1293 In the Supreme Court of the United States MICHELLE K. LEE, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE, Petitioner, v. SIMON SHIAO TAM, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Federal Circuit BRIEF OF AMICUS CURIAE SAN FRANCISCO DYKES ON BIKES WOMEN’S MOTORCYCLE CONTINGENT, INC. Brooke Oliver Mark A. Lemley 50 Balmy Law P.C. Counsel of Record 50 Balmy Alley Michael A. Feldman San Francisco, CA 94110 Durie Tangri LLP (415) 641-1116 217 Leidesdorff Street San Francisco, CA 94111 Tobias Barrington Wolff (415) 362-6666 University of Pennsylvania [email protected] 3501 Sansom Street Philadelphia, PA 19104 (215) 898-7483 Counsel for Amicus Curiae 269878 A (800) 274-3321 • (800) 359-6859 i TABLE OF CONTENTS Page TABLE OF CONTENTS ...... i TABLE OF CITED AUTHORITIES ...... ii INTEREST OF THE AMICUS CURIAE ...... 1 SUMMARY OF ARGUMENT ...... 2 ARGUMENT ...... 7 A. DYKES ON BIKES AND THE TRADEMARK REGISTRATION ODYSSEY ...... 7 B. DYKES ON BIKES’ TRADEMARKS ARE POLITICAL SPEECH, NOT COMMERCIAL SPEECH ...... 10 C. THE STANDARDLESS DISCRETION IN SECTION 1052(A)’S SPEECH LICENSING REQUIREMENT LEADS TO ARBITRARY APPLICATIONS . . . . .13 D. THE IMPORTANCE OF TRADEMARK REGISTRATION ...... 19 CONCLUSION ...... 24 ii TABLE OF CITED AUTHORITIES Page CASES Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989) ...... 12 Carey v. Population Services Int’l, 431 U.S. 678 (1977) ...... 12 City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) ...... 13, 17 City of Ladue v. Gilleo, 512 U.S. 43 (1994) ...... 10 City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) ...... 13 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) ...... 11, 16 Grayned v. City of Rockford, 408 U.S. 104 (1972) ...... 18 In re Tam, 808 F.3d 1321 (Fed. Cir. 2015) ...... 4, 17 Lee v. Tam, 137 S. Ct. 30 (Sept. 29, 2016) ...... 4, 10 iii Cited Authorities Page Nat’l Endowment for the Arts v. Finley, 524 U.S. 569 (1998) ...... 18 Perry v. Sindermann, 408 U.S. 593 (1972) ...... 19, 23 Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ...... 22 Roberts v. United States Jaycees, 468 U.S. 609 (1984) ...... 11 Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) ...... 13, 14 Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ...... 22, 23 Speiser v. Randall, 357 U.S. 513 (1958) ...... 19, 23 Staub v. City of Baxley, 355 U.S. 313 (1958) ...... 13 Texas v. Johnson, 491 U.S. 397 (1989) ...... 11 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ...... 18 iv Cited Authorities Page STATUTES 15 U.S.C. § 1052 ...... passim 15 U.S.C. § 1064 ...... 16 The Lanham Act ...... 20, 22 OTHER AUTHORITIES TMEP § 1203.03 ...... 14, 15 1 INTEREST OF THE AMICUS CURIAE1 Amicus Curiae San Francisco Dykes on Bikes Women’s Motorcycle Contingent, Inc. (“Dykes on Bikes”) is a non-profit organization composed of lesbian motorcycle riders and their allies. The Dykes on Bikes first appeared in the 1976 San Francisco Pride parade and have led the San Francisco Pride parade and many other cities’ Pride parades ever since as representatives of the movement for lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) equality and empowerment. The Patent and Trademark Office (“PTO”) has by turns both accepted and rejected Dykes on Bikes’ trademark applications, depending on the time and the particular examiner assigned to the case. This includes various rejections on the ground that the term “dyke” is a disparaging term for lesbians, and, conversely, an acceptance based on extensive evidence from Dykes on Bikes that the term “dyke” is not a disparaging term, including almost two dozen expert declarations from distinguished linguists, historians, and authors. Dykes on Bikes has no direct interest in the outcome of this case, but does have an interest in being able to register and control the use of its trademarks, which the PTO has interfered with by rejecting Dykes on Bikes’ Design Mark trademark application and by applying 1. No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than the amicus curiae, or its counsel made a monetary contribution to its preparation or submission. The parties have consented to the filing of all brief in this matter. 2 its registration criteria arbitrarily and inconsistently. Dykes on Bikes has a trademark application that has been suspended pending the result of this case. SUMMARY OF ARGUMENT Amicus Dykes on Bikes is a non-profit organization composed of lesbian motorcycle riders and their allies. Dykes on Bikes uses its trademark to cultivate a brand of political activism and awareness, supporting the civil rights of lesbians and working to fight harmful stereotypes about lesbians and the entire LGBTQ community. The purpose of the brand is not to sell commercial goods or services. Rather, Dykes on Bikes requires all its Chapters around the world to use the brand for charitable and political expression in support of its civil rights mission. Amicus purposefully and intentionally adopted the term “dykes” as part of its trademark in order to highlight and confront the controversial history of that term and dispel the notion that it is disparaging. It uses its trademark to prevent the commercial exploitation of its name or logo, which Dykes on Bikes believes would corrupt and dilute its ability to use its mark to advance its political and social message. The process of obtaining trademark registrations from the PTO has been costly, time-consuming, and ultimately only partially successful because each application is subject to the whim of the particular trademark examiner assigned and his or her particular biases in applying 15 U.S.C. § 1052(a). Different PTO examiners have at various times both accepted and rejected Dykes on Bikes’ trademark applications, depending on the particular examiner assigned to the case and their changes in mind. 3 It has at various points found both that the term “dyke” is a disparaging term for lesbians and, conversely, that the term “dyke” is not a disparaging term. This difficulty in registering its trademarks has made it nearly impossible to keep the Dykes on Bikes brand focused on political speech. Dykes on Bikes has struggled to prevent other users from attempting to commercialize the mark. Websites like eBay, Facebook, and Zazzle.com require trademark registration numbers for takedown notices, and some sites refuse to honor takedown notices without proof of a federal trademark registration. This leaves the Dykes on Bikes logo vulnerable and threatens to deprive the Dykes on Bikes name of protection as the PTO contemplates reversing its earlier ruling and invalidating the organization’s existing mark. The reality is that federal trademark registration is often a prerequisite to effective enforcement. Without the power of a registered trademark, the public is left confused and unable to distinguish Dykes on Bikes’ political speech from the speech of unrelated, unaffiliated entities looking to make money off the Dykes on Bikes brand. Dykes on Bikes’ experience with Section 1052(a) offers three lessons that may help the Court in resolving this case: 1. Trademark registration is not useful only for commercial speech. It can also be critical for entities engaged in political speech. Dykes on Bikes is a non- profit organization focused on political speech and social action, not commercialization. Dykes on Bikes uses its trademarks for three reasons: (1) to identify itself when it is engaged in its own political speech; (2) for members to 4 publicly self-identify as proudly out-of-the closet lesbians, publicly appropriating the very words previously used to shame them into silence and submission as well as claiming those words as a source of pride and as a rallying cry for winning equal rights under the law; and (3) to prevent for-profit companies from trying to profit from the well- known Dykes on Bikes trademark by selling products of their own with no benefit, oversight, or approval from the actual Dykes on Bikes organization. Section 1052(a) does not simply burden speech that proposes a commercial transaction. As applied to Dykes on Bikes, it directly affects our ability to engage in core political speech undiluted by misleading commercial messages. 2. The PTO’s application of Section 1052(a)’s prohibition on “disparaging” trademarks is arbitrary and inconsistent, depending on the opinions, biases, and standardless discretion of the particular PTO examiner assigned to the case. The Federal Circuit decision now on appeal lamented the inconsistent application of Section 1052(a), pointing out that the PTO denied trademark registration for HAVE YOU HEARD SATAN IS A REPUBLICAN, but granted the trademark application for THE DEVIL IS A DEMOCRAT. See In re Tam, 808 F.3d 1321, 1342 n.7 (Fed. Cir. 2015), as corrected (Feb. 11, 2016), cert. granted sub nom., Lee v. Tam, 137 S. Ct. 30 (Sept. 29, 2016). But it is worse than that. The PTO has both accepted and rejected marks using exactly the same words. In 2007, the PTO issued a certificate of registration for the word mark “Dykes on Bikes,” albeit only after the examiner’s refusal to register the mark was reversed on appeal. DYKES ON BIKES, Reg. No. 3,323,803 File History (“’803 FH”), Registration Certificate (Oct. 30, 2007). Dykes on Bikes then filed its declaration of use and 5 incontestability in 2013. Id., Decl. of Use & Incontestability (Oct. 30. 2013). But in 2016, when Dykes on Bikes applied to register its logo, which also includes the words “Dykes on Bikes,” the PTO rejected the application on the basis that the word “dyke” was disparaging, despite the 2007 finding to the contrary and despite issuing a certificate of use and incontestability for the same words only two years earlier. DYKES ON BIKES W M C, U.S. Trademark Serial No. 86/609,566 File History (“’566 FH”), Suspension Notice (Oct. 15, 2016). The PTO argues that it is not bound by its prior decision on the same words, insisting upon its right to render inconsistent rulings. The long, costly, and uncertain process of obtaining trademark registration has imposed a substantial burden on Dykes on Bikes. Trademark examiners demanded an extraordinary amount of evidence, far beyond what is required of other trademark applicants, before registering the Dykes on Bikes word mark. And some examiners accept that evidence while others reject it, applying a subjective standard for identifying “disparaging” words. The inconsistency of the PTO in registering other marks that use words with a history of disparaging meaning, like QUEER AS FOLK and BITCH, while refusing to register the Dykes on Bikes design mark, further demonstrates the arbitrariness of the standard. Dykes on Bikes’ experience is a cautionary tale about delegating hundreds or thousands of discretionary free speech decisions to individual civil servants working with no clear or objective standard. It is also a healthy reminder why the First Amendment strongly disfavors this kind of content-based prior licensing restraint on speech. 6 3. Federal trademark registration matters. Without registration, it may be practically and financially impossible for Dykes on Bikes—or any small political activist organization—to effectively ensure that the public understands the difference between Dykes on Bikes’ own political speech, and speech from others, which might be commercial or contain anti-gay political messages falsely claiming to come from Dykes on Bikes. Some courts—and petitioners—suggest that even if the PTO rejects a mark as disparaging, the trademark owner can invoke common-law rights. But common- law rights are not adequate. Trademark registration confers a number of legal advantages that a common- law right to bring a lawsuit does not, including the statutory presumption of validity, nationwide priority, incontestability, proof that the mark has secondary meaning, and constructive notice to would-be infringers. Registration also confers significant practical advantages not mentioned in the statute, particularly for small companies or non-profit organizations such as Dykes on Bikes. Effective enforcement is practically impossible without a trademark registration or the money to file countless common-law trademark lawsuits. Trademark registration, then, is not simply a benefit conferred by the government that can be replaced by the consolation prize of common-law rights for those whose speech the government disfavors. Registration is an integral part of the federal trademark scheme and an integral part of an organization’s ability to effectively name and brand itself. 7 ARGUMENT A. DYKES ON BIKES AND THE TRADEMARK REGISTRATION ODYSSEY 1. Dykes on Bikes is a non-profit organization dedicated to helping LGBTQ people have pride and dignity in their sexual orientation and to engage in philanthropic efforts in the LGBTQ and women’s communities. It is based in San Francisco, and has about 15 official chapters throughout the U.S. and the world. The San Francisco chapter oversees the official chapters and ensures that the organization as a whole maintains a united vision for advancing LGBTQ and women’s rights. The organization first formed in 1976, when a small contingent of women motorcyclists gathered at the head of the San Francisco Pride parade. That first year, they coined the informal name “Dykes on Bikes.” Consistent with the “pride” theme, they chose to use the name “dykes” precisely because of its history as a slur. The message it conveyed was, in part, that being a dyke was not something to be ashamed of. Rather than remaining hidden in private homes and clubs, lesbians could be out and proud, riding powerful machines at the front of parades celebrating the civil rights of LGBTQ people. The societal and personal impact of the Dykes on Bikes trademark has helped transform “dyke” from an epithet to a word commonly used by lesbians to refer to themselves with pride. 2. In 2003, the organization officially changed its name to the San Francisco Dykes on Bikes Women’s Motorcycle Contingent. Dykes on Bikes filed its application to register 8 the phrase DYKES ON BIKES as a trademark on July 31, 2003, beginning a saga that continues to this day without a final resolution. Trademark examiners initially refused to register the mark. ’803 FH, Office Action (Feb. 20, 2004). Overcoming that resistance required Dykes on Bikes to submit evidence far beyond what is required of other trademark applicants and to win an appeal. Throughout the process, Dykes on Bikes met with hostility and resistance from the PTO. Dykes on Bikes first provided evidence to the PTO that the term “dyke” is not disparaging, but the PTO rejected the application. Id., Request for Reconsideration (April 26, 2005). Dykes on Bikes appealed. TTAB Appeal of Appliction Serial No. 78/281,746 (“Appeal”) (April 28, 2005). We offered declarations from 23 expert witnesses, including LGBTQ scholars, historians, and lexicologists to show that the term is not derogatory. Id. Rather than cite similarly competent evidence during the appeal, the PTO attempted to support its position with a printout of an unidentified individual’s webpage purporting to provide personal translations of “vulgar” words from English into Spanish. Id., Reconsideration Denial (May 26, 2005). It was not a list of “disparaging” words, but a list of “vulgar” words including “dyke,” “breasts,” “testicles,” “clitoris,” “condom,” and many other words which could not be considered “disparaging” under Section 2(a). The PTO also offered a print out of an online dictionary combining references from an out-of-print 1913 Webster’s dictionary and personal notations by the individual who hosted the website, where the only reference to “dyke” as “vulgar, deprecatory” appears in a personal notation. 9 On November 2, 2005, the Trademark Trial and Appeals Board remanded the case to the PTO, which published the DYKES ON BIKES mark for opposition on January 4, 2006. Id., Remand (Nov. 2, 2005); ’803 FH, Notice of Publication (Jan. 4, 2006). The PTO finally registered the Dykes on Bikes mark in October 2007, and in 2013 accepted the certificate of use and incontestability. ’803 FH, Registration Certificate (Oct. 30, 2007); id., Notice of Acceptance (Nov. 15, 2013). However, only two years after accepting the incontestability certificate for the trademark on the words Dykes on Bikes, the PTO rejected Dykes on Bikes’ new application to register a trademark in its logo on the basis of those same words. ’566 FH, Office Action (Aug. 11, 2015). That should not have been a controversial or difficult request, since a mark limited to words plus a design is narrower than the already-registered word mark. Yet despite the PTO’s determination after remand from the TTAB in the prior case that the words “Dykes on Bikes” are not disparaging and are eligible for trademark registration, a new trademark examiner decided to reverse course and reject the design mark application, setting Dykes on Bikes’ work back twelve years. The PTO examiner has stood by this rejection even after Dykes on Bikes incorporated all the evidence from the prior word mark application into the record along with new evidence that the mark is not disparaging. The examiner has stood by this rejection despite the fact that not one lesbian has ever raised any objection to registration of “Dykes on Bikes” during this entire thirteen year trademark registration effort. The examiner has suspended Dykes on Bikes’ design mark application pending the outcome 10 of this case, Lee v. Tam. It is a particularly frustrating result for Dykes on Bikes, which continues to struggle to control its brand without federal trademark registration. B. DYKES ON BIKES’ TRADEMARKS ARE POLITICAL SPEECH, NOT COMMERCIAL SPEECH 1. Dykes on Bikes adopted its trademarked name as a form of political speech. Dykes on Bikes does not exist to sell products. It is a non-profit organization that exists to communicate a political and social message. Indeed, the value of its trademark registration is precisely that it enables Dykes on Bikes to keep the use of its mark political rather than allowing it to be diluted with commercial messages. Dykes on Bikes uses its trademarks to prevent others from commercializing the term “Dykes on Bikes” and to prevent others from attributing others’ speech to the Dykes on Bikes organization. This use of a trademark for self-identification furthers a core purpose of the First Amendment. The First Amendment does not merely protect the availability of messages from various viewpoints. It also protects the right of individuals to associate their identities with the messages they seek to convey. As this Court explained in City of Ladue v. Gilleo, 512 U.S. 43 (1994), in the course of striking down an ordinance that prohibited signs on residential property, “[p]recisely because of their location, such signs provide information about the identity of the ‘speaker.’ [And] . . . the identity of the speaker is an important component of many attempts to persuade.” Id. at 56. A trademark allows Dykes on Bikes to identify as a group by using language that invokes the members’ own 11 identities. That ability to associate individual identity with group identity and communicate a message unique to that group is central to the First Amendment. See Roberts v. United States Jaycees, 468 U.S. 609 (1984) (“[T]he Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.”). Section 1052(a) restricts Dykes on Bikes’ ability to self-identify in their own political speech while preventing commercial exploitation of their branded name by others. It does so by penalizing their mark based on its content and limiting the organization’s expressive activity based on the offense that examiners imagine an audience might experience from their choice of words. This is an impermissible content- and viewpoint-based restriction on speech. The First Amendment does not permit government to regulate or punish speech solely because it may give “serious offense.” To the contrary, “a principal function of free speech under our system of government is to invite dispute.” Texas v. Johnson, 491 U.S. 397, 408–409 (1989). In Forsyth County v. Nationalist Movement, 505 U.S. 123, 134–35 (1992), this Court reiterated that “[l]isteners’ reaction to speech is not a content-neutral basis for regulation” and explained that “[s]peech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” Section 1052(a) places financially burdensome limitations on the ability of Dykes on Bikes to control the use of its mark and preserve its brand and its name for political 12 and social purposes without the dilution that comes from unauthorized commercial exploitation. Dykes on Bikes seeks to use its mark to engage in a vital public debate over the very meaning of the word “dyke” to lesbians today. 2. The Court should not allow the government to justify such viewpoint- and content-based restrictions on the false premise that all trademark use is exclusively commercial in nature. We recognize that other trademark owners, such as the Washington Redskins, may use controversial trademarks that are not self-referential for the more traditional goal of branding and selling goods and services for profit rather than engaging in political speech and social activism. We express no opinion on the constitutionality of regulating purely commercial speech, compare Carey v. Population Services Int’l, 431 U.S. 678, 701 (1977) (“At least where obscenity is not involved, we have consistently held that the fact that protected [commercial] speech may be offensive to some does not justify its suppression.”) with Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 475 (1989) (upholding rule at state university that prohibits “Tupperware parties” in order to promote “an educational rather than commercial, atmosphere on SUNY’s campuses”), or whether the manner in which the Redskins use their mark constitutes commercial speech.2 But 2. Nor do we endorse the use of the term “redskins” for a football team. Unlike The Slants and Dykes on Bikes, both of whom have chosen to reclaim self-referential terms as trademarks for the benefit of the groups those terms refer to, the Washington Redskins have chosen a term that is unrelated to the people who identify as members of the football team and is commonly understood to be a slur which members of the identified group have not reclaimed. Whatever the constitutionality of the PTO’s treatment of the Redskins mark, the team’s use of that name is immoral and Dykes on Bikes encourages the Washington Redskins to give up their trademarked name as a matter of respect and decency. 13 Section 1052(a) restrains more than commercial speech. As applied to Dykes on Bikes and similar organizations, the law burdens political speech and cannot be justified under the lesser scrutiny this Court has sometimes applied in a commercial setting. Any rule governing what the PTO can or cannot register as a trademark must account for those who use their trademarks for political speech. The fact that some trademark owners may use their marks for exclusively commercial purposes cannot change the fact that Section 1052(a) restricts and burdens those engaged in political speech as well. C. THE STANDARDLESS DISCRETION IN SECTION 1052(A)’S SPEECH LICENSING REQUIREMENT LEADS TO ARBITRARY APPLICATIONS When one PTO examiner approves a trademark application for a phrase and another examiner rejects an application for using the exact same phrase, it is clear that “the peaceful enjoyment of freedoms which the Constitution guarantees [is] contingent upon the uncontrolled will of a [government] official,” as this Court has prohibited on numerous occasions. Shuttlesworth v. Birmingham, 394 U.S. 147, 150 (1969) (quoting Staub v. City of Baxley, 355 U.S. 313, 322 (1958)); see e.g., City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 764 (1988) (“[The government] may not condition that speech on obtaining a license or permit from a government official in that official’s boundless discretion.”); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423 n.19 (1993). 14 On its face, Section 1052(a) does not provide the “narrow, objective, and definite standards to guide the licensing” that the Constitution requires for a speech licensing scheme. Shuttlesworth, 394 U.S. at 151. It prohibits “disparaging” trademarks, but whether a word is disparaging depends heavily on the speaker, the listener, and the context. The difference could even be as subtle as a difference in tone of voice. “Disparagement,” by its very nature, is based on the speaker’s subjective intent. Depending on the context and the speaker, the use of the term “dyke” can be either an act of self- identification and a claim of pride in group membership or a slur intended to hurt or silence a minority. To tell the difference, a government bureaucrat must engage in viewpoint discrimination, deciding what the term means to the person doing the speaking and their expressive purpose. This is precisely the kind of uncertain standard this Court has rejected in the past. For instance, in Shuttlesworth, this Court struck down an ordinance giving the City Commission the power to license parades or demonstrations guided by, among other factors, “decency, good order, [and] morals.” Id. at 150. The situation is no different here. The government cannot give individual civil servants (a City Commission or the PTO) nearly unfettered discretion to withhold a government benefit (a parade license or trademark registration) based on vague moral standards (“decency, good order, [and] morals” or “immoral . . . , scandalous matter; or matter which may disparage”). Compare id. with 35 U.S.C. § 1052(a) and TMEP § 1203.03 (b)(i) (Oct. 2015). The application of Section 1052(a) in practice confirms that delegating hundreds or thousands of discretionary free speech decisions to individual civil servants working 15 with no clear or objective standard inevitably leads to arbitrary application and irreconcilably inconsistent results. The PTO analyzed two applications from Dykes on Bikes using the exact same phrase and found that phrase disparaging in one application and not in another, even after the same evidence was put before it in both applications. In 2007, after four years of explanations, evidence, appeals, and motion practice, the PTO finally agreed that the phrase “Dykes on Bikes” is not disparaging and issued a federal trademark registration certificate for the Dykes on Bikes’ name. In 2013, it accepted a certificate of continuing use and incontestability. ’803 FH, Notice of Acceptance (Nov. 15, 2013). Yet just two years later, Dykes on Bikes applied for a trademark in its logo and the PTO rejected it, finding that the phrase “Dykes on Bikes,” which appears in the logo, is disparaging. That finding directly contradicts the PTO’s previous finding. ’566 FH, Office Action (Aug. 11, 2015). This was a not a difference in evidence, nor of changing attitudes over time. Rather, the difference is attributable merely to the caprice of the different examiners considering the applications. This, alone, should be sufficient evidence that Section 1052(a) confers unconstitutionally standardless discretion on PTO examiners. But it gets worse in light of the Trademark Manual of Examining Procedure, which defines a disparaging mark as one that “may” be considered disparaging to “a substantial composite” of a “referenced group.” TMEP § 1203.03 (b)(i) (Oct. 2015). While this shift from the perspective of the speaker to 16 the perspective of the audience purports to offer a more neutral perspective, in fact it does no such thing. To begin, judging speech by the reaction of the audience is itself a content-based activity. Forsyth County, 505 U.S. at 134–35. Further, the law’s decision to choose only a subset of the audience—the group members the term describes—adds additional ambiguity. It is ambiguous as to what group is to be considered—all women, all lesbians, or all lesbian motorcycle enthusiasts? What constitutes “a substantial composite” of a group is also ambiguous. More importantly, how is an individual trademark examiner to determine whether most lesbian motorcycle enthusiasts would take pride in the phrase “Dykes on Bikes,” or be offended by it? How is an individual trademark examiner to determine whether any offended lesbian motorcycle enthusiasts constitute a “substantial” or “insubstantial” composite? Dykes on Bikes submitted dozens of declarations on this point, but the resolution of its applications still depended on the personal reaction of an examiner who audibly gasped in shock when Dykes on Bikes’ lawyer told her that counsel is herself “a dyke.” That examiner’s supervisor justified the examiner’s decision by stating that a search for “vulgar” and “dyke” on Google yields many results. The same is true for a search of “vulgar” and practically any other word such as “shoe,” yet that does not transmute “shoe” into something generally vulgar (or disparaging). The open-ended discretion of Section 1052(a) and the TMEP guidelines does not stop with the PTO’s registration decision. The uncertainty extends indefinitely because any person can attempt to cancel a trademark— even an incontestable mark—at any time by claiming it is disparaging or scandalous. See 15 U.S.C. § 1064(3). 17 Section 1052(a) is an exception to the normal rule that a trademark cannot be challenged after five years of registration and continuous use. Id. Dykes on Bikes thus operates under the constant specter of some person asking to cancel its marks because he or she believes them to be disparaging. And indeed it has already faced such challenges. Although Dykes on Bikes has invested in and cultivated its trademarked name for more than 40 years, it has no idea how the PTO will rule if someone decides to challenge its mark in the PTO, particularly in light of the inconsistent rulings that the PTO has already issued on the mark. The survival of Dykes on Bikes’ trademark depends entirely on the personal whim on whichever PTO examiner is assigned to the case if someone decides to challenge the trademark. The Federal Circuit decision now on appeal held that the PTO’s inconsistent application of Section 1052(a) chills speech because people are less likely to choose a trademark if it is uncertain whether the government will be willing to protect it. See In re Tam, 808 F.3d at 1342 n.7. In particular, it points out that the PTO denied trademark registration for HAVE YOU HEARD SATAN IS A REPUBLICAN, but granted the trademark application for THE DEVIL IS A DEMOCRAT, stating “all we need say about the uncertainty here, however, is that it contributes significantly to the chilling effect on speech.” Id. at 1342. That particular example also underscores the danger of the “potential for invidious discrimination of disfavored subjects” where an individual bureaucrat makes decisions about whose speech the government favors and whose speech it does not. City of Cincinnati, 507 U.S. at 423 n.19. 18 Judge O’Malley and Judge Wallach’s concurrence in In re Tam echoes the majority’s concern, but explicitly states that Section 1052(a) should be held unconstitutionally vague. In re Tam, 808 F.3d at 1359–60. This Court’s admonishments regarding vaguely drafted speech restrictions underscore the dangers of allowing individual PTO examiners standardless discretion. The PTO’s arbitrary application of Section 1052(a) does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Vagueness in government regulation can, standing alone, be a constitutional problem. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998) (“Under the First and Fifth Amendments, speakers are protected from arbitrary and discriminatory enforcement of vague standards.”). The Constitution tolerates even less vagueness where, as here, “the law interferes with the right of free speech.” See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). No reasonable person can determine or predict what speech Section 1052(a) will allow and what speech it will prohibit. Grayned, 408 U.S. at 108. As a result, it is likely that speakers will self-censor and avoid trademarks they worry the PTO might cancel even if they invest time and goodwill for many years. See In re Tam, 808 F.3d 1341–43. This Court has held that the First and Fifth Amendments protect people from this kind of vague and inconsistent law when it restricts speech. See Finley, 524 U.S. at 588 (“Under the First and Fifth Amendments, speakers are protected from arbitrary and discriminatory enforcement of vague standards.”). As discussed further below, the same protections should 19 apply when such a vague and inconsistent law withholds a government benefit on the basis of the content of speech. See Speiser v. Randall, 357 U.S. 513, 518 (1958) (“To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.”); Perry v. Sindermann, 408 U.S. 593, 597 (1972) (“[E]ven though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which (it) could not command directly.’”). The experience of Dykes on Bikes with Section 1052(a) starkly illustrates the reasons for this Court’s longstanding skepticism over poorly drafted government licensing schemes for speech, particularly those that target disfavored or unpopular messages. When a licensing scheme uses terms so vague that applicants will be unable to predict what content will or will not pass muster, the threat to First Amendment values is acute. D. THE IMPORTANCE OF TRADEMARK REGISTRATION Federal trademark registration provides substantial benefits that are particularly important to a small, politically-focused, non-profit organization such as Dykes 20 on Bikes whose resources are limited and therefore must pick and choose the legal battles it can afford to fight. Some of these benefits of registration are defined in the statute. For instance, the Lanham Act expressly provides that trademark registration comes with a presumption of validity, nationwide priority, incontestability, proof that the mark has secondary meaning, and constructive notice to would-be infringers. The statute also allows a trademark holder to seek additional remedies against infringers. Other benefits are more practical than legal. Potential users will often check the Principal Register at the PTO and will avoid using a trademarked term when they see it’s registered, but they are much less likely to search for or discover who has common-law trademark rights, in part because it is impossible to know from a search what parties might have or claim to have common-law rights in a particular trademark. Our experience in seeking to enforce our mark bears this out. It has often proved sufficient for Dykes on Bikes to point to its federal registration for its word mark to persuade obvious infringers to cease their unlawful activity. But merely asserting the right to common-law protection often does not have the same effect, as Dykes on Bikes learned when the PTO refused to register its logo trademark. In fact, many online companies like Zazzle.com, which sells user-designed t-shirts and other products online, refuse to honor takedown notices at all without proof of a federal trademark registration. Virtually all websites such as Zazzle.com, eBay, Etsy, CafePress, and Facebook request that a trademark 21 owner include a trademark registration number when requesting takedown of infringing items, and without one, the takedown may require more time, and may not be successful at all. Other online sites, such as ReverbNation.com require a trademark registration in order to accept a takedown notice. Trademark registration is also required to combat cyber squatting and to protect the mark from registration under newly issued domain extensions. For example, GoDaddy, one of the main domain name registrars in the U.S., requires that a trademark owner have a valid federal registration on the principal register in order to prevent another domain name registrant from using the owner’s trademark in a domain name. When ICM Registry, working with ICANN (which oversees the system of domain name extensions such as .com, .net, and .gov) offered a controversial new internet domain extension, .xxx, the only way Dykes on Bikes was able to prevent having its trademark offered to the public with a .xxx domain extension was because they held a federal registration and could opt out during the “Sunrise B” period. Without the federal registration, their application to opt out would have been rejected. Registration by others of Dykes on Bikes using a .xxx domain name would have substantially harmed the political speech and public impression of Dykes on Bikes, and common law remedies would have been too little too late to prevent such harm. Thus, lack of trademark registration actually impedes a trademark owner’s ability to enforce its mark in the digital market place and limits its ability to take advantage of the simple, inexpensive takedown notice methods most internet service providers have made available Dykes on Bikes relies on trademark registration to 22 ensure that the public associates Dykes on Bikes only with its own speech and not with others’ speech or unlicensed attempts to commercialize the mark. Without them, Dykes on Bikes cannot control its own public presence or dignity. The inability to finally resolve its (so-far) thirteen-year effort to register its marks has imposed real costs and burdens on Dykes on Bikes that the possible existence of a common law trademark cause of action does not redress. The difference between having a federal trademark registration and not having one has had a striking difference on Dykes on Bikes’ ability to control what speech the public associates with the official Dykes on Bikes organization. Trademark registration, then, is not merely a government subsidy, largesse that the government can grant or withhold on a whim. Registration is, as a practical matter, an integral part of the Lanham Act scheme for protecting trademarks. Denying registration imposes a substantial burden on small organizations like Dykes on Bikes. Congress cannot impose that burden because it disagrees with Dykes on Bikes’ choice of name. Sorrell v. IMS Health Inc., 564 U.S. 552, 566 (2011) (“The First Amendment requires heightened scrutiny whenever the government creates ‘a regulation of speech because of disagreement with the message it conveys.’” (citation omitted)); Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”). It is no answer that the Lanham Act withholds benefits rather than imposes restrictions. That would elevate form over substance. It would make the constitutionality 23 of the statute turn on Congress’ chosen phrasing rather than the statute’s effect on speech. There is no difference between “deny[ing] a benefit to a person because of his constitutionally protected speech or associations” and “penaliz[ing] and inhibit[ing]” the exercise of free speech. Perry, 408 U.S. at 597. This Court has rejected this argument, holding that “even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” Id. at 597 (1972); see also Speiser, 357 U.S. at 518 (“To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.”); Sorrell, 564 U.S. at 566 (“Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content.”); id. at 580 (holding impermissible a state law that “burdened a form of protected expression,” while leaving “unburdened those speakers whose messages are in accord with its own views”). Congress having provided important rights to all trademark applicants through the registration process, this Court should not allow Congress and the PTO to deny those benefits to selected individual applicants because of viewpoint-based disagreements with their particular choice of trademark. 24 CONCLUSION This Court should find that 15 U.S.C. § 1052(a) is unconstitutionally vague, an impermissible viewpoint- and content-based restriction on speech, and confers unconstitutionally standardless discretion on individual PTO examiners Respectfully submitted, Brooke Oliver Mark A. Lemley 50 Balmy Law P.C. Counsel of Record 50 Balmy Alley Michael A. Feldman San Francisco, CA 94110 Durie Tangri LLP (415) 641-1116 217 Leidesdorff Street San Francisco, CA 94111 Tobias Barrington Wolff (415) 362-6666 University of Pennsylvania [email protected] 3501 Sansom Street Philadelphia, PA 19104 (215) 898-7483 Counsel for Amicus Curiae (Slip Opinion) OCTOBER TERM, 2016 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MATAL, INTERIM DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE v. TAM CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 15–1293. Argued January 18, 2017—Decided June 19, 2017 Simon Tam, lead singer of the rock group “The Slants,” chose this mon- iker in order to “reclaim” the term and drain its denigrating force as a derogatory term for Asian persons. Tam sought federal registration of the mark “THE SLANTS.” The Patent and Trademark Office (PTO) denied the application under a Lanham Act provision prohibit- ing the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). Tam contested the denial of registration through the administrative appeals process, to no avail. He then took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause. Held: The judgment is affirmed. 808 F. 3d 1321, affirmed. JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II, and III–A, concluding: 1. The disparagement clause applies to marks that disparage the members of a racial or ethnic group. Tam’s view, that the clause ap- plies only to natural or juristic persons, is refuted by the plain terms of the clause, which uses the word “persons.” A mark that disparages a “substantial” percentage of the members of a racial or ethnic group necessarily disparages many “persons,” namely, members of that group. Tam’s narrow reading also clashes with the breadth of the disparagement clause, which by its terms applies not just to “per- sons,” but also to “institutions” and “beliefs.” §1052(a). Had Con- gress wanted to confine the reach of the clause, it could have used the 2 MATAL v. TAM Syllabus phrase “particular living individual,” which it used in neighboring §1052(c). Tam contends that his interpretation is supported by legis- lative history and by the PTO’s practice for many years of registering marks that plainly denigrated certain groups. But an inquiry into the meaning of the statute’s text ceases when, as here, “the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (inter- nal quotation marks omitted). Even if resort to legislative history and early enforcement practice were appropriate, Tam has presented nothing showing a congressional intent to adopt his interpretation, and the PTO’s practice in the years following the disparagement clause’s enactment is unenlightening. Pp. 8–12. 2. The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’s contention, trade- marks are private, not government speech. Because the “Free Speech Clause . . . does not regulate government speech,” Pleasant Grove City v. Summum, 555 U. S. 460, 467, the government is not required to maintain viewpoint neutrality on its own speech. This Court exer- cises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could si- lence or muffle the expression of disfavored viewpoints. The Federal Government does not dream up the trademarks regis- tered by the PTO. Except as required by §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. If the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory. And once a mark is registered, the PTO is not authorized to remove it from the register unless a party moves for cancellation, the registration expires, or the Federal Trade Commis- sion initiates proceedings based on certain grounds. It is thus far- fetched to suggest that the content of a registered mark is govern- ment speech, especially given the fact that if trademarks become gov- ernment speech when they are registered, the Federal Government is babbling prodigiously and incoherently. And none of this Court’s government-speech cases supports the idea that registered trade- marks are government speech. Johanns v. Livestock Marketing Assn., 544 U. S. 550; Pleasant Grove City v. Summum, 555 U. S. 460; and Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ___, distinguished. Holding that the registration of a trade- mark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way. Pp. 12–18. JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and Cite as: 582 U. S. ____ (2017) 3 Syllabus JUSTICE BREYER, concluded in Parts III–B, III–C, and IV: (a) The Government’s argument that this case is governed by the Court’s subsidized-speech cases is unpersuasive. Those cases all in- volved cash subsidies or their equivalent, e.g., funds to private par- ties for family planning services in Rust v. Sullivan, 500 U. S. 173, and cash grants to artists in National Endowment for Arts v. Finley, 524 U. S. 569. The federal registration of a trademark is nothing like these programs. The PTO does not pay money to parties seeking reg- istration of a mark; it requires the payment of fees to file an applica- tion and to maintain the registration once it is granted. The Gov- ernment responds that registration provides valuable non-monetary benefits traceable to the Government’s resources devoted to register- ing the marks, but nearly every government service requires the ex- penditure of government funds. This is true of services that benefit everyone, like police and fire protection, as well as services that are utilized by only some, e.g., the adjudication of private lawsuits and the use of public parks and highways. Pp. 18–20. (b) Also unpersuasive is the Government’s claim that the dispar- agement clause is constitutional under a “government-program” doc- trine, an argument which is based on a merger of this Court’s gov- ernment-speech cases and subsidy cases. It points to two cases involving a public employer’s collection of union dues from its em- ployees, Davenport v. Washington Ed. Assn., 551 U. S. 177, and Ys- ursa v. Pocatello Ed. Assn., 555 U. S. 353, but these cases occupy a special area of First Amendment case law that is far removed from the registration of trademarks. Cases in which government creates a limited public forum for private speech, thus allowing for some con- tent- and speaker-based restrictions, see, e.g., Good News Club v. Milford Central School, 533 U. S. 98, 106–107; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 831, are potentially more analogous. But even in those cases, viewpoint discrimination is for- bidden. The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group. That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint. The “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592. Pp. 20–23. (c) The dispute between the parties over whether trademarks are commercial speech subject to the relaxed scrutiny outlined in Central Hudson Gas & Elect. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, need not be resolved here because the disparagement clause cannot withstand even Central Hudson review. Under Central Hudson, a restriction of speech must serve “a substantial interest” and be “nar- 4 MATAL v. TAM Syllabus rowly drawn.” Id., at 564–565 (internal quotation marks omitted). One purported interest is in preventing speech expressing ideas that offend, but that idea strikes at the heart of the First Amendment. The second interest asserted is protecting the orderly flow of com- merce from disruption caused by trademarks that support invidious discrimination; but the clause, which reaches any trademark that disparages any person, group, or institution, is not narrowly drawn. Pp. 23–26. JUSTICE KENNEDY, joined by JUSTICE GINSBURG, JUSTICE SO- TOMAYOR, and JUSTICE KAGAN, agreed that 15 U. S. C. §1052(a) con- stitutes viewpoint discrimination, concluding: (a) With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828–829. The test for viewpoint discrimination is wheth- er—within the relevant subject category—the government has sin- gled out a subset of messages for disfavor based on the views ex- pressed. Here, the disparagement clause identifies the relevant subject as “persons, living or dead, institutions, beliefs, or national symbols,” §1052(a); and within that category, an applicant may regis- ter a positive or benign mark but not a derogatory one. The law thus reflects the Government’s disapproval of a subset of messages it finds offensive, the essence of viewpoint discrimination. The Government’s arguments in defense of the statute are unpersuasive. Pp. 2–5. (b) Regardless of whether trademarks are commercial speech, the viewpoint based discrimination here necessarily invokes heightened scrutiny. See Sorrell v. IMS Health Inc., 564 U. S. 552, 566. To the extent trademarks qualify as commercial speech, they are an exam- ple of why that category does not serve as a blanket exemption from the First Amendment’s requirement of viewpoint neutrality. In the realm of trademarks, the metaphorical marketplace of ideas becomes a tangible, powerful reality. To permit viewpoint discrimination in this context is to permit Government censorship. Pp. 5–7. ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–A, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and in which THOMAS, J., joined except for Part II, and an opinion with respect to Parts III–B, III–C, and IV, in which ROBERTS, C. J., and THOMAS and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., took no part in the consideration or decision of the case. Cite as: 582 U. S. ____ (2017) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES ______No. 15–1293 ______JOSEPH MATAL, INTERIM DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE, PETITIONER v. SIMON SHIAO TAM ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 19, 2017] JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–A, and an opinion with respect to Parts III–B, III–C, and IV, in which THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE BREYER join. This case concerns a dance-rock band’s application for federal trademark registration of the band’s name, “The Slants.” “Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force. The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment prin- ciple: Speech may not be banned on the ground that it 2 MATAL v. TAM Opinion of the Court expresses ideas that offend. I A “The principle underlying trademark protection is that distinctive marks—words, names, symbols, and the like— can help distinguish a particular artisan’s goods from those of others.” B&B Hardware, Inc. v. Hargis Indus- tries, Inc., 575 U. S. ___, ___ (2015) (slip op., at 3); see also Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U. S. 205, 212 (2000). A trademark “designate[s] the goods as the product of a particular trader” and “protect[s] his good will against the sale of another’s product as his.” United Drug Co. v. Theodore Rectanus Co., 248 U. S. 90, 97 (1918); see also Hanover Star Milling Co. v. Metcalf, 240 U. S. 403, 412–413 (1916). It helps consumers identify goods and services that they wish to purchase, as well as those they want to avoid. See Wal-Mart Stores, supra, at 212–213; Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 198 (1985). “[F]ederal law does not create trademarks.” B&B Hardware, supra, at ___ (slip op., at 3). Trademarks and their precursors have ancient origins, and trademarks were protected at common law and in equity at the time of the founding of our country. 3 J. McCarthy, Trademarks and Unfair Competition §19:8 (4th ed. 2017) (hereinafter McCarthy); 1 id., §§5:1, 5:2, 5:3; Pattishal, The Constitu- tional Foundations of American Trademark Law, 78 Trademark Rep. 456, 457–458 (1988); Pattishall, Two Hundred Years of American Trademark Law, 68 Trade- mark Rep. 121, 121–123 (1978); see Trade-Mark Cases, 100 U. S. 82, 92 (1879). For most of the 19th century, trademark protection was the province of the States. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763, 780– 782 (1992) (Stevens, J., concurring in judgment); id., at 785 (THOMAS, J., concurring in judgment). Eventually, Cite as: 582 U. S. ____ (2017) 3 Opinion of the Court Congress stepped in to provide a degree of national uni- formity, passing the first federal legislation protecting trademarks in 1870. See Act of July 8, 1870, §§77–84, 16 Stat. 210–212. The foundation of current federal trade- mark law is the Lanham Act, enacted in 1946. See Act of July 5, 1946, ch. 540, 60 Stat. 427. By that time, trade- mark 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 com- merce 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 regis- tration helps to ensure that trademarks are fully protected and supports the free flow of commerce. “[N]ational pro- tection of trademarks is desirable,” we have explained, “because trademarks foster competition and the mainte- nance of quality by securing to the producer the benefits of good reputation.” San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 531 (1987) (internal quotation marks omitted); see also Park ’N Fly, Inc., supra, at 198 (“The Lanham Act provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers”). 4 MATAL v. TAM Opinion of the Court B Without federal registration, a valid trademark may still be used in commerce. See 3 McCarthy §19:8. And an unregistered trademark can be enforced against would-be infringers in several ways. Most important, even if a trademark is not federally registered, it may still be en- forceable 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 regis- tered 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 Pro- tection 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 regis- tered: unregistered common law marks are protected by the Act”). And an unregistered trademark can be enforced under state common law, or if it has been registered in a State, under that State’s registration system. See 3 id., §19:3, at 19–23 (explaining that “[t]he federal system of registration and protection does not preempt parallel state —————— 1 In the opinion below, the Federal Circuit opined that although “Sec- tion 43(a) allows for a federal suit to protect an unregistered trade- mark,” “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 registra- tion under §2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under §43(a).” 505 U. S., at 768. We need not decide today whether respondent could bring suit under §43(a) if his application for federal registration had been lawfully denied under the disparagement clause. Cite as: 582 U. S. ____ (2017) 5 Opinion of the Court law protection, either by state common law or state regis- tration” 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 . . . per- sons, living or dead, institutions, beliefs, or national symbols, 6 MATAL v. TAM Opinion of the Court or bring them into contempt, or disrepute.” §1052(a).2 This clause appeared in the original Lanham Act and has re- mained the same to this day. See §2(a), 60 Stat. 428. When deciding whether a trademark is disparaging, an examiner at the PTO generally applies a “two-part test.” The examiner first considers “the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services.” Trademark Manual of Examining Procedure §1203.03(b)(i) (Apr. 2017), p. 1200–150, http://tmep.uspto.gov. “If that meaning is found to refer to identifiable persons, institu- tions, beliefs or national symbols,” the examiner moves to the second step, asking “whether that meaning may be disparaging to a substantial composite3 of the referenced group.” Ibid. If the examiner finds that a “substantial composite, although not necessarily a majority, of the referenced group would find the proposed mark . . . to be disparaging in the context of contemporary attitudes,” a prima facie case of disparagement is made out, and the burden shifts to the applicant to prove that the trademark is not disparaging. Ibid. What is more, the PTO has specified that “[t]he fact that an applicant may be a mem- ber 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 —————— 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. Cite as: 582 U. S. ____ (2017) 7 Opinion of the Court corrected (Feb. 11, 2016). He chose this moniker in order to “reclaim” and “take ownership” of stereotypes about people of Asian ethnicity. Ibid. (internal quotation marks omitted). The group “draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes” and has given its albums names such as “The Yellow Album” and “Slanted Eyes, Slanted Hearts.” Ibid. Tam sought federal registration of “THE SLANTS,” on the principal register, App. 17, but an examining attorney at the PTO rejected the request, applying the PTO’s two- part framework and finding that “there is . . . a substan- tial 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 scru- tiny. See 808 F. 3d, at 1334–1339. The majority also rejected the Government’s argument that registered trademarks constitute government speech, as well as the 8 MATAL v. TAM Opinion of the Court Government’s contention that federal registration is a form of government subsidy. See id., at 1339–1355. And the majority opined that even if the disparagement clause were analyzed under this Court’s commercial speech cases, the clause would fail the “intermediate scrutiny” that those cases prescribe. See id., at 1355–1357. Several judges wrote separately, advancing an assort- ment of theories. Concurring, Judge O’Malley agreed with the majority’s reasoning but added that the disparage- ment 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 disparage- ment clause violates the First Amendment, we consider Tam’s argument that the clause does not reach marks that Cite as: 582 U. S. ____ (2017) 9 Opinion of the Court disparage racial or ethnic groups. The clause prohibits the registration of marks that disparage “persons,” and Tam claims that the term “persons” “includes only natural and juristic persons,” not “non-juristic entities such as racial and ethnic groups.” Brief for Respondent 46. Tam never raised this argument before the PTO or the Federal Circuit, and we declined to grant certiorari on this question when Tam asked us to do so, see Brief Respond- ing to Petition for Certiorari, pp. i, 17–21. Normally, that would be the end of the matter in this Court. See, e.g., Yee v. Escondido, 503 U. S. 519, 534–538 (1992); Freytag v. Commissioner, 501 U. S. 868, 894–895 (1991) (Scalia, J., concurring in part and concurring in judgment). But as the Government pointed out in connection with its petition for certiorari, accepting Tam’s statutory inter- pretation 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 ex- plaining why Tam’s argument about the definition of “persons” in the Lanham Act is meritless. As noted, the disparagement clause prohibits the regis- tration 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 desig- nate the applicant or other entitled to a benefit or privi- 10 MATAL v. TAM Opinion of the Court lege or rendered liable under the provisions of this chapter includes a juristic person as well as a natural person.” §1127. Because racial and ethnic groups are neither natural nor “juristic” persons, Tam asserts, these groups fall outside this definition. Brief for Respondent 46–48. Tam’s argument is refuted by the plain terms of the disparagement clause. The clause applies to marks that disparage “persons.” A mark that disparages a “substan- tial” 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 politi- cal, 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 partic- ular natural person. If Congress had wanted to confine —————— 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. This argument leads to the absurd result that no person is a “person” within the meaning of the disparagement clause. This is so because every person is a member of a “non-juristic” group, e.g., right-handers, left-handers, women, men, people born on odd-numbered days, people born on even-numbered days. Cite as: 582 U. S. ____ (2017) 11 Opinion of the Court the reach of the disparagement clause in the way that Tam suggests, it would have been easy to do so. A neigh- boring 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 indi- vidual except by his written consent.” §1052(c) (emphasis added). Tam contends that his interpretation of the disparage- ment 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 al- ways, 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.” Barn- hart v. Sigmon Coal Co., 534 U. S. 438, 450 (2002) (inter- nal 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 enforce- ment 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 ad- mitted vagueness of the disparagement test5 and the huge —————— 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 12 MATAL v. TAM Opinion of the Court volume of applications have produced a haphazard record of enforcement. (Even today, the principal register is replete with marks that many would regard as disparag- ing 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 elimi- nate any First Amendment protection or result in highly permissive rational-basis review. Specifically, the Gov- ernment 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 free- dom 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 gov- ernment speech.” Pleasant Grove City v. Summum, 555 —————— to postulate.” Harjo v. Pro-Football Inc., 50 USPQ 2d 1705, 1737 (TTAB 1999), rev’d, 284 F. Supp. 2d 96 (DC 2003), rev’d and remanded in part, 415 F. 3d 44 (CADC 2005) (per curiam). 6 See, e.g., App. to Brief for Pro-Football, Inc., as Amicus Curiae. Cite as: 582 U. S. ____ (2017) 13 Opinion of the Court U. S. 460, 467 (2009); see Johanns v. Livestock Marketing Assn., 544 U.S. 550, 553 (2005) (“[T]he Government’s own speech . . . is exempt from First Amendment scrutiny”); Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235 (2000). As we have said, “it is not easy to imagine how govern- ment could function” if it were subject to the restrictions that the First Amendment imposes on private speech. Summum, supra, at 468; see Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ___, ___–___ (2015) (slip op., at 5–7). “ ‘[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others,’ ” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 394 (1993), but imposing a requirement of viewpoint-neutrality on government speech would be para- lyzing. When a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others. The Free Speech Clause does not 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 ex- pressed a viewpoint, but the First Amendment did not demand that the Government balance the message of these posters by producing and distributing posters en- couraging Americans to refrain from engaging in these activities. But while the government-speech doctrine is im- portant—indeed, essential—it is a doctrine that is suscep- —————— 7 See, e.g., D. Nelson, The Posters That Won the War (1991). 8 Ibid. 14 MATAL v. TAM Opinion of the Court tible to dangerous misuse. If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents. At issue here is the content of trademarks that are registered by the PTO, an arm of the Federal Government. The Federal Government does not dream up these marks, and it does not edit marks submitted for registration. Except as required by the statute involved here, 15 U. S. C. §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. Thus, unless that section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Government policy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register. Instead, if the mark meets the Lanham Act’s viewpoint-neutral require- ments, 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 gov- ernment speech, the Federal Government is babbling Cite as: 582 U. S. ____ (2017) 15 Opinion of the Court prodigiously and incoherently. It is saying many unseemly things. See App. to Brief for Pro-Football, Inc., as Amicus Curiae. It is expressing contradictory views.9 It is una- shamedly 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 Con- dom Corp., 26 USPQ 2d 1216, 1220, n. 3 (TTAB 1993) (“[I]ssuance of a trademark registration . . . is not a gov- ernment 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 —————— 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 “Capital- ism Ensuring Innovation,” Registration No. 3,966,092 (May 24, 2011); compare “Global Warming Is Good,” Registration No. 4,776,235 (July 21, 2015), with “A Solution to Global Warming,” Registration No. 3,875,271 (Nov. 10, 2010). 10 “make.believe,” Registration No. 4,342,903 (May 28, 2013). 11 “Think Different,” Registration No. 2,707,257 (Apr. 15, 2003). 12 “Just Do It,” Registration No. 1,875,307 (Jan. 25, 1995). 13 “Have It Your Way,” Registration No. 0,961,016. (June 12, 1973) 14 “EndTime Ministries,” Registration No. 4,746,225 (June 2, 2015). 16 MATAL v. TAM Opinion of the Court strange city knows about legal title to the land and build- ings he passes” (emphasis deleted)). None of our government speech cases even remotely supports the idea that registered trademarks are govern- ment 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 prod- ucts.’ ” 544 U. S., at 561 (quoting 7 U. S. C. § 2902(13)). Congress and the Secretary of Agriculture provided guide- lines 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 any- thing 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 do- nated 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 over- run if they were obligated to accept all monuments offered by private groups; “[p]ublic parks are often closely identi- fied in the public mind with the government unit that Cite as: 582 U. S. ____ (2017) 17 Opinion of the Court owns the land”; and “[t]he monuments that are accepted . . . are meant to convey and have the effect of conveying a government message.” Id., at 472. Trademarks share none of these characteristics. Trademarks have not traditionally been used to convey a Government message. With the exception of the enforce- ment 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 gov- ernment 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 identi- fied 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 govern- ment speech, other systems of government registration 18 MATAL v. TAM OpinionOpinion ofof theALITO Court, J. could easily be characterized in the same way. Perhaps the most worrisome implication of the Govern- ment’s argument concerns the system of copyright regis- tration. If federal registration makes a trademark gov- ernment 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 trade- marks 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 subsi- dized speech expressing a particular viewpoint. These cases implicate a notoriously tricky question of constitu- tional 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 De- velopment 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 Cite as: 582 U. S. ____ (2017) 19 OpinionOpinion ofof theALITO Court, J. promote. Ibid. Determining which of these principles applies in a particular case “is not always self-evident,” id., at ___ (slip op., at 11), but no difficult question is presented here. Unlike the present case, the decisions on which the Government relies all involved cash subsidies or their equivalent. In Rust v. Sullivan, 500 U. S. 173 (1991), a federal law provided funds to private parties for family planning services. In National Endowment for Arts v. Finley, 524 U. S. 569 (1998), cash grants were awarded to artists. And federal funding for public libraries was at issue in United States v. American Library Assn., Inc., 539 U. S. 194 (2003). In other cases, we have regarded tax benefits as comparable to cash subsidies. See Regan v. Taxation With Representation of Wash., 461 U. S. 540 (1983); Cammarano v. United States, 358 U. S 498 (1959). The federal registration of a trademark is nothing like the programs at issue in these cases. The PTO does not pay money to parties seeking registration of a mark. Quite the contrary is true: An applicant for registration must pay the PTO a filing fee of $225–$600. 37 CFR §2.6(a)(1). (Tam submitted a fee of $275 as part of his application to register THE SLANTS. App. 18.) And to maintain federal registration, the holder of a mark must pay a fee of $300–$500 every 10 years. §2.6(a)(5); see also 15 U. S. C. §1059(a). The Federal Circuit concluded that these fees have fully supported the registration system for the past 27 years. 808 F.3d, at 1353. The Government responds that registration provides valuable non-monetary benefits that “are directly trace- able to the resources devoted by the federal government to examining, publishing, and issuing certificates of registra- tion 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 20 MATAL v. TAM OpinionOpinion ofof theALITO Court, J. that are utilized by only some, e.g., the adjudication of private lawsuits and the use of public parks and highways. Trademark registration is not the only government registration scheme. For example, the Federal Govern- ment 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 analyz- ing the constitutionality of restrictions on speech imposed in connection with such services. C Finally, the Government urges us to sustain the dispar- agement 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 employ- er’s collection of union dues from its employees. But those cases occupy a special area of First Amendment case law, and they are far removed from the registration of trademarks. In Davenport v. Washington Ed. Assn., 551 U. S. 177, 181–182 (2007), a Washington law permitted a public employer automatically to deduct from the wages of em- ployees who chose not to join the union the portion of union dues used for activities related to collective bargain- ing. 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- Cite as: 582 U. S. ____ (2017) 21 OpinionOpinion ofof theALITO Court, J. tent; that is, the law permitted the employer to assist union speech on matters relating to collective bargaining but made it harder for the union to collect money to sup- port 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 market- place 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 expres- sion 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 pur- pose 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, 224–226 (1977). But the challenged laws did not go further and provide convenient collection mechanisms for money to be used in political activities. In essence, the Washington and Idaho lawmakers chose to 22 MATAL v. TAM OpinionOpinion ofof theALITO Court, J. confer a substantial non-cash benefit for the purpose of furthering activities that they particularly desired to promote but not to provide a similar benefit for the pur- pose of furthering other activities. Thus, Davenport and Ysursa are no more relevant for present purposes than the subsidy cases previously discussed.15 Potentially more analogous are cases in which a unit of government creates a limited public forum for private speech. See, e.g., Good News Club v. Milford Central School, 533 U. S. 98, 106–107 (2001); Rosenberger v. 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, 541–544 (2001). When government creates such a forum, in either a literal or “metaphysical” sense, see Rosenberger, 515 U. S., at 830, some content- and speaker-based restrictions may be allowed, see id., at 830–831. However, even in such cases, what we have termed “viewpoint discrimina- tion” is forbidden. Id., at 831. Our cases use the term “viewpoint” discrimination in a broad sense, see ibid., and in that sense, the disparage- ment 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 Dem- ocrats 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 discrimina- tion: Giving offense is a viewpoint. We have said time and again that “the public expression —————— 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. Cite as: 582 U. S. ____ (2017) 23 OpinionOpinion ofof theALITO Court, J. of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592 (1969). See also Texas v. Johnson, 491 U. S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55–56 (1988); Coates v. Cincinnati, 402 U. S. 611, 615 (1971); Bachellar v. Maryland, 397 U. S. 564, 567 (1970); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 509–514 (1969); Cox v. Louisiana, 379 U. S. 536, 551 (1965); Edwards v. South Carolina, 372 U. S. 229, 237–238 (1963); Terminiello v. Chicago, 337 U. S. 1, 4–5 (1949); Cantwell v. Connecticut, 310 U. S. 296, 311 (1940); Schneider v. State (Town of Irvington), 308 U. S. 147, 161 (1939); De Jonge v. Oregon, 299 U. S. 353, 365 (1937). For this reason, the disparagement clause cannot be saved by analyzing it as a type of government program in which some content- and speaker-based restrictions are permitted.16 IV Having concluded that the disparagement clause cannot be sustained under our government-speech or subsidy cases or under the Government’s proposed “government- program” doctrine, we must confront a dispute between the parties on the question whether trademarks are com- mercial 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 Govern- ment and amici supporting its position argue that all —————— 16 We leave open the question whether this is the appropriate frame- work for analyzing free speech challenges to provisions of the Lanham Act. 24 MATAL v. TAM OpinionOpinion ofof theALITO Court, J. trademarks are commercial speech. They note that the central purposes of trademarks are commercial and that federal law regulates trademarks to promote fair and orderly interstate commerce. Tam and his amici, on the other hand, contend that many, if not all, trademarks have an expressive component. In other words, these trademarks do not simply identify the source of a product or service but go on to say something more, either about the product or service or some broader issue. The trade- mark 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 re- striction 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 dispar- agement 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 “ ‘un- derrepresented 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 —————— 17 As with the framework discussed in Part III–C of this opinion, we leave open the question whether Central Hudson provides the appro- priate 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. Cite as: 582 U. S. ____ (2017) 25 OpinionOpinion ofof theALITO Court, J. tolerance and protecting the privacy and welfare of indi- viduals.” 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 Amer- ican 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 dispar- agement 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 26 MATAL v. TAM OpinionOpinion ofof theALITO Court, J. clause protects every person living or dead as well as every institution. Is it conceivable that commerce would be disrupted by a trademark saying: “James Buchanan was a disastrous president” or “Slavery is an evil institution”? There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered. * * * For these reasons, we hold that the disparagement clause violates the Free Speech Clause of the First Amendment. The judgment of the Federal Circuit is affirmed. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of this case. Cite as: 582 U. S. ____ (2017) 1 Opinion of KENNEDY, J. SUPREME COURT OF THE UNITED STATES ______No. 15–1293 ______JOSEPH MATAL, INTERIM DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE, PETITIONER v. SIMON SHIAO TAM ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 19, 2017] JUSTICE KENNEDY, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring in part and concurring in the judgment. The Patent and Trademark Office (PTO) has denied the substantial benefits of federal trademark registration to the mark THE SLANTS. The PTO did so under the man- date of the disparagement clause in 15 U. S. C. §1052(a), which prohibits the registration of marks that may “dis- parage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead, institutions, beliefs, or national symbols.” As the Court is correct to hold, §1052(a) constitutes viewpoint discrimination—a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny. The Government’s action and the statute on which it is based cannot survive this scrutiny. The Court is correct in its judgment, and I join Parts I, II, and III–A of its opinion. This separate writing explains in greater detail why the First Amendment’s protections against viewpoint discrimination apply to the trademark here. It submits further that the viewpoint discrimination rationale renders unnecessary any extended treatment of other questions raised by the parties. 2 MATAL v. TAM Opinion of KENNEDY, J. I Those few categories of speech that the government can regulate or punish—for instance, fraud, defamation, or incitement—are well established within our constitutional tradition. See United States v. Stevens, 559 U. S. 460, 468 (2010). Aside from these and a few other narrow excep- tions, it is a fundamental principle of the First Amend- ment 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 Visi- tors of Univ. of Va., 515 U. S. 819, 828–829 (1995). The First Amendment guards against laws “targeted at specific subject matter,” a form of speech suppression known as content based discrimination. Reed v. Town of Gilbert, 576 U. S. ___, ___ (2015) (slip op., at 12). This category includes a subtype of laws that go further, aimed at the suppression of “particular views . . . on a subject.” Rosenberger, 515 U. S., at 829. A law found to discrimi- nate 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 gov- ernment 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 Govern- ment now seeks to implement and enforce identifies the relevant subject as “persons, living or dead, institutions, beliefs, or national symbols.” 15 U. S. C. §1052(a). Within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the Government’s disapproval of a subset of mes- Cite as: 582 U. S. ____ (2017) 3 Opinion of KENNEDY, J. sages it finds offensive. This is the essence of viewpoint discrimination. The Government disputes this conclusion. It argues, to begin with, that the law is viewpoint neutral because it applies in equal measure to any trademark that demeans or offends. This misses the point. A subject that is first defined by content and then regulated or censored by mandating only one sort of comment is not viewpoint neutral. To prohibit all sides from criticizing their oppo- nents 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 si- lenced 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 pro- tects the right to create and present arguments for partic- ular positions in particular ways, as the speaker chooses. By mandating positivity, the law here might silence dis- sent and distort the marketplace of ideas. The Government next suggests that the statute is view- point 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 posi- tive 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. Re- spondent’s application was denied not because the Gov- ernment thought his object was to demean or offend but 4 MATAL v. TAM Opinion of KENNEDY, J. because the Government thought his trademark would have that effect on at least some Asian-Americans. The Government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reac- tion of the speaker’s audience. The Court has suggested that viewpoint discrimination occurs when the govern- ment intends to suppress a speaker’s beliefs, Reed, supra, at ___–___ (slip op., at 11–12), but viewpoint discrimina- tion need not take that form in every instance. The dan- ger 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 differ- ent guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of mes- sage. 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 opin- ion is not intended to imply that the Government’s inter- pretation is accurate. From respondent’s submissions, it is evident he would disagree that his mark means what the Government says it does. The trademark will have the effect, respondent urges, of reclaiming an offensive term for the positive purpose of celebrating all that Asian- Cite as: 582 U. S. ____ (2017) 5 Opinion of KENNEDY, J. Americans can and do contribute to our diverse Nation. Brief for Respondent 1–4, 42–43. While thoughtful per- sons can agree or disagree with this approach, the disso- nance 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 omit- ted). 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 Prod- ucts Corp., 463 U. S. 60, 65, 71–72 (1983). To the extent trademarks qualify as commercial speech, they are an example of why that term or category does not serve as a blanket exemption from the First Amendment’s requirement of viewpoint neutrality. Justice Holmes’ reference to the “free trade in ideas” and the “power of . . . thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (dissenting opinion), was a metaphor. In the realm 6 MATAL v. TAM Opinion of KENNEDY, J. of trademarks, the metaphorical marketplace of ideas becomes a tangible, powerful reality. Here that real mar- ketplace exists as a matter of state law and our common- law tradition, quite without regard to the Federal Gov- ernment. See ante, at 2. These marks make up part of the expression of everyday life, as with the names of enter- tainment 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 per- mit 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 omit- ted)). These considerations, however, do not alter the speech principles that bar the viewpoint discrimination embodied in the statutory provision at issue here. Cite as: 582 U. S. ____ (2017) 7 Opinion of KENNEDY, J. It is telling that the Court’s precedents have recognized just one narrow situation in which viewpoint discrimina- tion is permissible: where the government itself is speak- ing or recruiting others to communicate a message on its behalf. See Legal Services Corporation v. Velazquez, 531 U. S. 533, 540–542 (2001); Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229, 235 (2000); Rosenberger, 515 U. S., at 833. The exception is necessary to allow the government to stake out positions and pursue policies. See Southworth, supra, at 235; see also ante, at 13–14. But it is also narrow, to prevent the government from claiming that every government program is exempt from the First Amendment. These cases have identified a number of factors that, if present, suggest the government is speaking on its own behalf; but none are present here. See ante, at 14–18. There may be situations where private speakers are selected for a government program to assist the govern- ment 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 com- plex, see, e.g., Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. ___, ___ (2013) (slip op., at 8), our cases are clear that viewpoint discrimination is not permitted where, as here, the Government “expends funds to encourage a diversity of views from private speakers,” Velazquez, supra, at 542 (internal quotation marks omitted). 8 MATAL v. TAM Opinion of KENNEDY, J. * * * A law that can be directed against speech found offen- sive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society. For these reasons, I join the Court’s opinion in part and concur in the judgment. Cite as: 582 U. S. ____ (2017) 1 Opinion of THOMAS, J. SUPREME COURT OF THE UNITED STATES ______No. 15–1293 ______JOSEPH MATAL, INTERIM DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE, PETITIONER v. SIMON SHIAO TAM ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 19, 2017] JUSTICE THOMAS, concurring in part and concurring in the judgment. I join the opinion of JUSTICE ALITO, except for Part II. Respondent failed to present his statutory argument either to the Patent and Trademark Office or to the Court of Appeals, and we declined respondent’s invitation to grant certiorari on this question. Ante, at 9. I see no reason to address this legal question in the first instance. See Star Athletica, L. L. C. v. Varsity Brands, Inc., 580 U. S. ___, ___ (2017) (slip op., at 6). I also write separately because “I continue to believe that when the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in question may be characterized as ‘commercial.’ ” Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, 572 (2001) (THOMAS, J., concurring in part and concurring in judgment); see also, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 518 (1996) (same). I nonetheless join Part IV of JUSTICE ALITO’s opinion because it correctly concludes that the disparagement clause, 15 U. S. C. §1052(a), is unconstitutional even under the less stringent test an- nounced in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980).