Speech and Expression
National Endowment for the Arts v. Finley (1998)
524 U.S. 569 (1998)
Majority: O’Connor, joined by Rehnquist, Stevens, Kennedy, Breyer and Ginsburg (all but Part I-B)
Concurrence: Scalia (in judgment), joined by Thomas
Justice O’Connor delivered the opinion of the Court.
The National Foundation on the Arts and Humanities Act, as amended in 1990, requires the Chairperson of the National Endowment for the Arts (NEA) to ensure that “artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” In this case, we review the Court of Appeals’ determination that [the statute], on its face, impermissibly discriminates on the basis of viewpoint and is void for vagueness under the First and Fifth Amendments. We conclude that [the statute] is facially valid, as it neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles.
With the establishment of the NEA in 1965, Congress embarked on a “broadly conceived national policy of support for the … arts in the United States,” pledging federal funds to “help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of … creative talent.” …
Applications for NEA funding are initially reviewed by advisory panels composed of experts in the relevant field of the arts. Under the 1990 Amendments to the enabling statute, those panels must reflect “diverse artistic and cultural points of view” and include “wide geographic, ethnic, and minority representation,” as well as “lay individuals who are knowledgeable about the arts.” The panels report to the 26-member National Council on the Arts (Council), which, in turn, advises the NEA Chairperson. The Chairperson has the ultimate authority to award grants but may not approve an application as to which the Council has made a negative recommendation.
… Throughout the NEA’s history, only a handful of the agency’s roughly 100,000 awards have generated formal complaints about misapplied funds or abuse of the public’s trust. Two provocative works, however, prompted public controversy in 1989 and led to congressional revaluation of the NEA’s funding priorities and efforts to increase oversight of its grant-making procedures …
When considering the NEA’s appropriations for fiscal year 1990, Congress reacted to the controversy surrounding the Mapplethorpe and Serrano photographs by eliminating $45,000 from the agency’s budget, the precise amount contributed to the two exhibits by NEA grant recipients. Congress also enacted an amendment providing that no NEA funds “may be used to promote, disseminate, or produce materials which in the judgment of [the NEA] may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political, or scientific value.” …
The four individual respondents in this case, Karen Finley, John Fleck, Holly Hughes, and Tim Miller, are performance artists who applied for NEA grants before [the 1990 amendment] was enacted. An advisory panel recommended approval of respondents’ projects, both initially and after receiving Frohnmayer’s request to reconsider three of the applications. A majority of the Council subsequently recommended disapproval, and in June 1990, the NEA informed respondents that they had been denied funding. Respondents filed suit, alleging that the NEA had violated their First Amendment rights by rejecting the applications on political grounds, had failed to follow statutory procedures by basing the denial on criteria other than those set forth in the NEA’s enabling statute, and had breached the confidentiality of their grant applications through the release of quotations to the press … sought restoration of the recommended grants or reconsideration of their applications … When Congress enacted [the amendment], respondents, now joined by the National Association of Artists’ Organizations (NAAO), amended their complaint to challenge the provision as void for vagueness and impermissibly viewpoint based …
We granted certiorari, (1997), and now reverse the judgment of the Court of Appeals.
Respondents raise a facial challenge … and consequently they confront “a heavy burden” in advancing their claim … Respondents argue that the provision is a paradigmatic example of viewpoint discrimination because it rejects any artistic speech that either fails to respect mainstream values or offends standards of decency. The premise of respondents’ claim is that [the statute] constrains the agency’s ability to fund certain categories of artistic expression …
… Respondents’ claim that the provision is facially unconstitutional may be reduced to the argument that the criteria in [the statute] are sufficiently subjective that the agency could utilize them to engage in viewpoint discrimination. Given the varied interpretations of the criteria and the vague exhortation to “take them into consideration,” it seems unlikely that this provision will introduce any greater element of selectivity than the determination of “artistic excellence” itself …
The NEA’s enabling statute contemplates a number of indisputably constitutional applications for both the “decency” prong … and its reference to “respect for the diverse beliefs and values of the American public.” Educational programs are central to the NEA’s mission … And it is well established that “decency” is a permissible factor where “educational suitability” motivates its consideration. Bd. Of Ed v. Pico (1982).
… we note that the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake. So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities … In the 1990 Amendments … Congress modified the declaration of purpose in the NEA’s enabling act to provide that arts funding should “contribute to public support and confidence in the use of taxpayer funds,” and that “[p]ublic funds … must ultimately serve public purposes the Congress defines.” And as we held in Rust, Congress may “selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.” 500 U.S., at 193. In doing so, “the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.” Maher v. Roe (1977).
The lower courts also erred in invalidating [the statute] as unconstitutionally vague. Under the First and Fifth Amendments, speakers are protected from arbitrary and discriminatory enforcement of vague standards. NAACP v. Button (1963). The terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns … But when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.
In the context of selective subsidies, it is not always feasible for Congress to legislate with clarity. Indeed, if this statute is unconstitutionally vague, then so too are all Government programs awarding scholarships and grants on the basis of subjective criteria such as “excellence.” […] To accept respondents’ vagueness argument would be to call into question the constitutionality of these valuable Government programs and countless others like them. [The statute] merely adds some imprecise considerations to an already subjective selection process. It does not, on its face, impermissibly infringe on First or Fifth Amendment rights. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Pleasant Grove City v. Summum (2009)
555 U.S. 460 (2009)
Majority: Alito, joined by Roberts, Stevens, Scalia, Kennedy, Thomas, Ginsburg and Breyer
Concurrence: Stevens, joined by Ginsburg
Concurrence: Scalia, joined by Thomas
Concurrence: Souter (in judgment)
Justice Alito delivered the opinion of the Court.
This case presents the question whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected. The Court of Appeals held that the municipality was required to accept the monument because a public park is a traditional public forum. We conclude, however, that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.
Pioneer Park (or Park) is a 2.5 acre public park located in the Historic District of Pleasant Grove City (or City) in Utah. The Park currently contains 15 permanent displays, at least 11 of which were donated by private groups or individuals. These include an historic granary, a wishing well, the City’s first fire station, a September 11 monument, and a Ten Commandments monument donated by the Fraternal Order of Eagles in 1971.
Respondent Summum is a religious organization founded in 1975 and headquartered in Salt Lake City, Utah. On two separate occasions in 2003, Summum’s president wrote a letter to the City’s mayor requesting permission to erect a “stone monument,” which would contain “the Seven Aphorisms of SUMMUM” and be similar in size and nature to the Ten Commandments monument. The City denied the requests and explained that its practice was to limit monuments in the Park to those that “either (1) directly relate to the history of Pleasant Grove, or (2) were donated by groups with longstanding ties to the Pleasant Grove community.” The following year, the City passed a resolution putting this policy into writing. The resolution also mentioned other criteria, such as safety and esthetics.
In May 2005, respondent’s president again wrote to the mayor asking to erect a monument, but the letter did not describe the monument, its historical significance, or Summum’s connection to the community. The city council rejected this request.
In 2005, respondent filed this action against the City and various local officials (petitioners), asserting, among other claims, that petitioners had violated the Free Speech Clause of the First Amendment by accepting the Ten Commandments monument but rejecting the proposed Seven Aphorisms monument. Respondent sought a preliminary injunction directing the City to permit Summum to erect its monument in Pioneer Park. After the District Court denied Summum’s preliminary injunction request, respondent appealed, pressing solely its free speech claim.
A panel of the Tenth Circuit reversed …
We granted certiorari and now reverse.
… The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. A government entity has the right to “speak for itself.” Board of Regents of Univ. of Wis. System v. Southworth (2000) …
This does not mean that there are no restraints on government speech. For example, government speech must comport with the Establishment Clause …
There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation. Permanent monuments displayed on public property typically represent government speech.
… Just as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land. It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated. And because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely–and reasonably–interpret them as conveying some message on the property owner’s behalf. In this context, there is little chance that observers will fail to appreciate the identity of the speaker. This is true whether the monument is located on private property or on public property, such as national, state, or city park land …
In this case, it is clear that the monuments in Pleasant Grove’s Pioneer Park represent government speech … The City has selected those monuments that it wants to display for the purpose of presenting the image of the City that it wishes to project to all who frequent the Park; it has taken ownership of most of the monuments in the Park, including the Ten Commandments monument that is the focus of respondent’s concern; and the City has now expressly set forth the criteria it will use in making future selections.
… Contrary to respondent’s apparent belief, it frequently is not possible to identify a single “message” that is conveyed by an object or structure, and consequently, the thoughts or sentiments expressed by a government entity that accepts and displays such an object may be quite different from those of either its creator or its donor. By accepting a privately donated monument and placing it on city property, a city engages in expressive conduct, but the intended and perceived significance of that conduct may not coincide with the thinking of the monument’s donor or creator. Indeed, when a privately donated memorial is funded by many small donations, the donors themselves may differ in their interpretation of the monument’s significance …
… Speakers, no matter how long-winded, eventually come to the end of their remarks; persons distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure. They monopolize the use of the land on which they stand and interfere permanently with other uses of public space. A public park, over the years, can provide a soapbox for a very large number of orators–often, for all who want to speak–but it is hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression.
… To be sure, there are limited circumstances in which the forum doctrine might properly be applied to a permanent monument–for example, if a town created a monument on which all of its residents (or all those meeting some other criterion) could place the name of a person to be honored or some other private message. But as a general matter, forum analysis simply does not apply to the installation of permanent monuments on public property.
In sum, we hold that the City’s decision to accept certain privately donated monuments while rejecting respondent’s is best viewed as a form of government speech. As a result, the City’s decision is not subject to the Free Speech Clause, and the Court of Appeals erred in holding otherwise. We therefore reverse.
It is so ordered.
Walker v. Texas Division, Sons of Confederate Veterans (2015)
576 U. S. 200 (2015)
Majority: Breyer, joined by Thomas, Ginsburg, Sotomayor and Kagan
Dissent: Alito, joined by Roberts, Scalia and Kennedy
Justice Breyer delivered the opinion of the Court.
Texas offers automobile owners a choice between ordinary and specialty license plates. Those who want the State to issue a particular specialty plate may propose a plate design, comprising a slogan, a graphic, or (most commonly) both. If the Texas Department of Motor Vehicles Board approves the design, the State will make it available for display on vehicles registered in Texas.
In this case, the Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a Confederate battle flag. The Board rejected the proposal. We must decide whether that rejection violated the Constitution’s free speech guarantees. We conclude that it did not.
… Here we are concerned only with the second category of plates, namely specialty license plates, not with the personalization program. Texas offers vehicle owners a variety of specialty plates, generally for an annual fee. And Texas selects the designs for specialty plates through three distinct processes.
First, the state legislature may specifically call for the development of a specialty license plate …
Second, the Board may approve a specialty plate design proposal that a state-designated private vendor has created at the request of an individual or organization …
Third, the Board “may create new specialty license plates on its own initiative or on receipt of an application from a” nonprofit entity seeking to sponsor a specialty plate. A nonprofit must include in its application “a draft design of the specialty license plate.” And Texas law vests in the Board authority to approve or to disapprove an application. The relevant statute says that the Board “may refuse to create a new specialty license plate” for a number of reasons, for example “if the design might be offensive to any member of the public … or for any other reason established by rule.” Specialty plates that the Board has sanctioned through this process include plates featuring the words “The Gator Nation,” together with the Florida Gators logo, and plates featuring the logo of Rotary International and the words “SERVICE ABOVE SELF.”
In 2009, the Sons of Confederate Veterans, Texas Division (a nonprofit entity), applied to sponsor a specialty license plate through this last-mentioned process. SCV’s application included a draft plate design. At the bottom of the proposed plate were the words “SONS OF CONFEDERATE VETERANS.” At the side was the organization’s logo, a square Confederate battle flag framed by the words “Sons of Confederate Veterans 1896.” A faint Confederate battle flag appeared in the background on the lower portion of the plate. Additionally, in the middle of the plate was the license plate number, and at the top was the State’s name and silhouette. The Board’s predecessor denied this application.
In 2010, SCV renewed its application before the Board. The Board invited public comment on its website and at an open meeting. After considering the responses, including a number of letters sent by elected officials who opposed the proposal, the Board voted unanimously against issuing the plate. The Board explained that it had found “it necessary to deny th[e] plate design application, specifically the confederate flag portion of the design, because public comments ha[d] shown that many members of the general public find the design offensive, and because such comments are reasonable.” The Board added “that a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”
In 2012, SCV and two of its officers (collectively SCV) brought this lawsuit against the chairman and members of the Board (collectively Board). SCV argued that the Board’s decision violated the Free Speech Clause of the First Amendment, and it sought an injunction requiring the Board to approve the proposed plate design. The District Court entered judgment for the Board. A divided panel of the Court of Appeals for the Fifth Circuit reversed …
We granted the Board’s petition for certiorari, and we now reverse.
When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech … Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. Johanns v. Livestock Marketing Assn., (2005).
That is not to say that a government’s ability to express itself is without restriction. Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech. And the Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech …
In our view, specialty license plates issued pursuant to Texas’s statutory scheme convey government speech. Our reasoning rests primarily on our analysis in Summum, a recent case that presented a similar problem. Pleasant Grove City v. Summum (2008). We conclude here, as we did there, that our precedents regarding government speech (and not our precedents regarding forums for private speech) provide the appropriate framework through which to approach the case.
In Summum, we considered a religious organization’s request to erect in a 2.5-acre city park a monument setting forth the organization’s religious tenets … The speech at issue, this Court decided, was “best viewed as a form of government speech” and “therefore [was] not subject to scrutiny under the Free Speech Clause.”
… In light of these and a few other relevant considerations, the Court concluded that the expression at issue was government speech. And, in reaching that conclusion, the Court rejected the premise that the involvement of private parties in designing the monuments was sufficient to prevent the government from controlling which monuments it placed in its own public park.
… First, the history of license plates shows that, insofar as license plates have conveyed more than state names and vehicle identification numbers, they long have communicated messages from the States …
Texas, too, has selected various messages to communicate through its license plate designs … In 1977, Texas replaced the Lone Star with a small silhouette of the State. And in 1995, Texas plates celebrated “150 Years of Statehood.” Additionally, the Texas Legislature has specifically authorized specialty plate designs stating, among other things, “Read to Succeed,” “Houston Livestock Show and Rodeo,” “Texans Conquer Cancer,” and “Girl Scouts.” This kind of state speech has appeared on Texas plates for decades.
Second, Texas license plate designs “are often closely identified in the public mind with the [State].” Each Texas license plate is a government article serving the governmental purposes of vehicle registration and identification. The governmental nature of the plates is clear from their faces: The State places the name “TEXAS” in large letters at the top of every plate. Moreover, the State requires Texas vehicle owners to display license plates, and every Texas license plate is issued by the State. Texas also owns the designs on its license plates, including the designs that Texas adopts on the basis of proposals made by private individuals and organizations. And Texas dictates the manner in which drivers may dispose of unused plates.
Texas license plates are, essentially, government IDs. And issuers of ID “typically do not permit” the placement on their IDs of “message[s] with which they do not wish to be associated.” Summum. Consequently, “persons who observe” designs on IDs “routinely–and reasonably–interpret them as conveying some message on the [issuer’s] behalf.”
Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate. But the individual prefers a license plate design to the purely private speech expressed through bumper stickers. That may well be because Texas’s license plate designs convey government agreement with the message displayed.
Third, Texas maintains direct control over the messages conveyed on its specialty plates. Texas law provides that the State “has sole control over the design, typeface, color, and alphanumeric pattern for all license plates.” The Board must approve every specialty plate design proposal before the design can appear on a Texas plate. And the Board and its predecessor have actively exercised this authority. Texas asserts, and SCV concedes, that the State has rejected at least a dozen proposed designs. Accordingly, like the city government in Summum, Texas “has ‘effectively controlled’ the messages [conveyed] by exercising ‘final approval authority’ over their selection.” (quoting Johanns).
This final approval authority allows Texas to choose how to present itself and its constituency. Thus, Texas offers plates celebrating the many educational institutions attended by its citizens. But it need not issue plates deriding schooling …
… Texas’s policies and the nature of its license plates indicate that the State did not intend its specialty license plates to serve as either a designated public forum or a limited public forum. First, the State exercises final authority over each specialty license plate design. This authority militates against a determination that Texas has created a public forum. Second, Texas takes ownership of each specialty plate design, making it particularly untenable that the State intended specialty plates to serve as a forum for public discourse. Finally, Texas license plates have traditionally been used for government speech, are primarily used as a form of government ID, and bear the State’s name. These features of Texas license plates indicate that Texas explicitly associates itself with the speech on its plates.
For similar reasons, we conclude that Texas’s specialty license plates are not a “nonpublic for[um],” which exists “[w]here the government is acting as a proprietor, managing its internal operations.” Int’l Soc. For Krishna Consc. Inc. v. Lee, (1992).
The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider …
Of course, Texas allows many more license plate designs than the city in Summum allowed monuments. But our holding in Summum was not dependent on the precise number of monuments found within the park …
Additionally, the fact that Texas vehicle owners pay annual fees in order to display specialty license plates does not imply that the plate designs are merely a forum for private speech. While some nonpublic forums provide governments the opportunity to profit from speech, the existence of government profit alone is insufficient to trigger forum analysis …
Our determination that Texas’s specialty license plate designs are government speech does not mean that the designs do not also implicate the free speech rights of private persons. We have acknowledged that drivers who display a State’s selected license plate designs convey the messages communicated through those designs. Wooley v. Maynard (1977). But here, compelled private speech is not at issue. And just as Texas cannot require SCV to convey “the State’s ideological message,” Wooley, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates.
For the reasons stated, we hold that Texas’s specialty license plate designs constitute government speech and that Texas was consequently entitled to refuse to issue plates featuring SCV’s proposed design. Accordingly, the judgment of the United States Court of Appeals for the Fifth Circuit is
Justice Alito, with whom the Chief Justice, Justice Scalia, and Justice Kennedy join, dissenting.
… This capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous. They make motorists happy, and they put money in a State’s coffers. But the precedent this case sets is dangerous. While all license plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination …
Messages that are proposed by private parties and placed on Texas specialty plates are private speech, not government speech. Texas cannot forbid private speech based on its viewpoint. That is what it did here. Because the Court approves this violation of the First Amendment, I respectfully dissent.
Matal v. Tam (2017)
582 U.S. ___ (2017)
Vote: 8-0 (Justice Gorsuch took no part in the consideration or decision of the case)
Majority: Alito, joined by Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, Kagan (Parts I, II & III-A), Thomas (except Part II), Roberts, Thomas, Breyer (Parts III-A, III-C, and IV)
Concurrence: Kennedy (in part), joined by Ginsburg, Sotomayor and Kagan
Concurrence: Thomas (in part)
Justice Alito announced the judgment of the court and delivered the opinion of the court with respect to parts I, II, and III-A, and an opinion with respect to parts III-B, III-C, and IV, in which the Chief Justice, Justice Thomas, and Justice Breyer join.
This case concerns a dance-rock band’s application for federal trademark registration of the band’s name, “The Slants.” “Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force.
The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage … or bring … into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.
… Under the Lanham Act, trademarks that are “used in commerce” may be placed on the “principal register,” that is, they may be federally registered. 15 U. S. C. §1051(a)(1). And some marks “capable of distinguishing [an] applicant’s goods or services and not registrable on the principal register … which are in lawful use in commerce by the owner thereof” may instead be placed on a different federal register: the supplemental register. §1091(a). There are now more than two million marks that have active federal certificates of registration. This system of federal registration helps to ensure that trademarks are fully protected and supports the free flow of commerce …
… At issue in this case is one such provision, which we will call “the disparagement clause.” This provision prohibits the registration of a trademark “which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” §1052(a). This clause appeared in the original Lanham Act and has remained the same to this day …
Simon Tam is the lead singer of “The Slants.” He chose this moniker in order to “reclaim” and “take ownership” of stereotypes about people of Asian ethnicity. 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.”
Tam sought federal registration of “THE SLANTS,” on the principal register, but an examining attorney at the PTO rejected the request, applying the PTO’s two part framework and finding that “there is … a substantial composite of persons who find the term in the applied for mark offensive.” The examining attorney relied in part on the fact that “numerous dictionaries define ‘slants’ or ‘slant-eyes’ as a derogatory or offensive term.” The examining attorney also relied on a finding that “the band’s name has been found offensive numerous times” …
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 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.”
Because the disparagement clause applies to marks that disparage the members of a racial or ethnic group, we must decide whether the clause violates the Free Speech Clause of the First Amendment. And at the outset, we must consider three arguments that would either eliminate any First Amendment protection or result in highly permissive rational-basis review. Specifically, the Government contends (1) that trademarks are government speech, not private speech, (2) that trademarks are a form of government subsidy, and (3) that the constitutionality of the disparagement clause should be tested under a new “government-program” doctrine. We address each of these arguments below.
… 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 … In light of all this, it is far-fetched to suggest that the content of a registered mark is government speech. If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public.
… The PTO has made it clear that registration does not constitute approval of a mark. In re Old Glory Condom Corp., (1993). And it is unlikely that more than a tiny fraction of the public has any idea what federal registration of a trademark means. Application of National Dist. And Chem. Corp., (1962) (Rich, concurring).
… This brings us to the case on which the Government relies most heavily, Walker, which likely marks the outer bounds of the government-speech doctrine. Holding that the messages on Texas specialty license plates are government speech, the Walker Court cited three factors distilled from Summum. First, license plates have long been used by the States to convey state messages. Second, license plates “are often closely identified in the public mind” with the State, since they are manufactured and owned by the State, generally designed by the State, and serve as a form of “government ID.” Third, Texas “maintain[ed] direct control over the messages conveyed on its specialty plates.” As explained above, none of these factors are present in this case.
… Trademarks are private, not government, speech.
We next address the Government’s argument that this case is governed by cases in which this Court has upheld the constitutionality of government programs that subsidized speech expressing a particular viewpoint. These cases implicate a notoriously tricky question of constitutional law …
Unlike the present case, the decisions on which the Government relies all involved cash subsidies or their equivalent … In other cases, we have regarded tax benefits as comparable to cash subsidies. Regan v. Taxation With Representation of Wash., (1983) [other citations omitted]. 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 …
Finally, the Government urges us to sustain the disparagement clause under a new doctrine that would apply to “government-program” cases. For the most part, this argument simply merges our government-speech cases and the previously discussed subsidy cases in an attempt to construct a broader doctrine that can be applied to the registration of trademarks. The only new element in this construct consists of two cases involving a public employer’s collection of union dues from its employees. But those cases occupy a special area of First Amendment case law, and they are far removed from the registration of trademarks.
… Our cases use the term “viewpoint” discrimination in a broad sense, and in that sense, the disparagement clause discriminates on the bases of “viewpoint.” To be sure, the clause evenhandedly prohibits disparagement of all groups. It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.
… 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.
Having concluded that the disparagement clause cannot be sustained under our government-speech or subsidy cases or under the Government’s proposed “government program” doctrine, we must confront a dispute between the parties on the question whether trademarks are commercial speech and are thus subject to the relaxed scrutiny outlined in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., (1980) …
We need not resolve this debate between the parties because the disparagement clause cannot withstand even Central Hudson review.
Under Central Hudson, a restriction of speech must serve “a substantial interest,” and it must be “narrowly drawn.” This means, among other things, that “[t]he regulatory technique may extend only as far as the interest it serves.” The disparagement clause fails this requirement.
It is claimed that the disparagement clause serves two interests. The first is phrased in a variety of ways in the briefs. Echoing language in one of the opinions below, the Government asserts an interest in preventing “‘underrepresented groups’” from being “‘bombarded with demeaning messages in commercial advertising.’” … 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 (1929) (Holmes, dissenting).
The second interest asserted is protecting the orderly flow of commerce …
A simple answer to this argument is that the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination … It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted. The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution …
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.
Iancu v. Brunetti (2019)
588 U.S. ___ (2019)
Majority: Kagan, joined by Thomas, Ginsburg, Alito, Gorsuch and Kavanaugh
Concur/Dissent: Sotomayor joined by Breyer
JUSTICE KAGAN DELIVERED THE OPINION OF THE COURT.
… Today we consider a First Amendment challenge to a neighboring provision of the Act, prohibiting the registration of “immoral or scandalous” trademarks. We hold that this provision infringes the First Amendment for the same reason: It too disfavors certain ideas.
Respondent Erik Brunetti is an artist and entrepreneur who founded a clothing line that uses the trademark FUCT … But you might read it differently and, if so, you would hardly be alone … That common perception caused difficulties for Brunetti when he tried to register his mark with the U. S. Patent and Trademark Office (PTO).
… This case involves another of the Lanham Act’s prohibitions on registration—one applying to marks that “[c]onsist of or comprise immoral or scandalous matter.” §1052(a). The PTO applies that bar as a “unitary provision,” rather than treating the two adjectives in it separately. To determine whether a mark fits in the category, the PTO asks whether a “substantial composite of the general public” would find the mark “shocking to the sense of truth, decency, or propriety”; “giving offense to the conscience or moral feelings”; “calling out for condemnation”; “disgraceful”; “offensive”; “disreputable”; or “vulgar.”
Both a PTO examining attorney and the PTO’s Trademark Trial and Appeal Board decided that Brunetti’s mark flunked that test …
Brunetti then brought a facial challenge to the “immoral or scandalous” bar in the Court of Appeals for the Federal Circuit. That court found the prohibition to violate the First Amendment. As usual when a lower court has invalidated a federal statute, we granted certiorari.
… If the “immoral or scandalous” bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine … So the key question becomes: Is the “immoral or scandalous” criterion in the Lanham Act viewpoint-neutral or viewpoint-based?
It is viewpoint-based … So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter …
The facial viewpoint bias in the law results in viewpoint-discriminatory application …
… But in any event, the “immoral or scandalous” bar is substantially overbroad. There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all. It therefore violates the First Amendment.
We accordingly affirm the judgment of the Court of Appeals.
It is so ordered.