NOTICE: This opinion is subject toformal revision before publication in the preliminary print of theUnited States Reports. Readers are requested to notify the Reporterof Decisions, Supreme Court of the United States, Washington,D. C. 20543, of any typographical or other formal errors, inorder that corrections may be made before the preliminary printgoes to press.

SUPREME COURT OF THE UNITED STATES

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No. 15–1293

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JOSEPH MATAL, INTERIM DIRECTOR, UNITED STATESPATENT AND TRADEMARK OFFICE, PETITIONERv. SIMON SHIAOTAM

on writ of certiorari to the united statescourt of appeals for the federal circuit

[June 19, 2017]

Justice Alito announced the judgment of theCourt and delivered the opinion of the Court with respect to PartsI, II, and III–A, and an opinion with respect to Parts III–B,III–C, and IV, in which The Chief Justice, Justice Thomas, andJustice Breyer join.

This case concerns a dance-rock band’sapplication for federal trademark registration of the band’s name,“The Slants.” “Slants” is a derogatory term for persons of Asiandescent, and members of the band are Asian-Americans. But the bandmembers believe that by taking that slur as the name of theirgroup, they will help to “reclaim” the term and drain itsdenigrating force.

The Patent and Trademark Office (PTO) denied theapplication based on a provision of federal law prohibiting theregistration of trademarks that may “disparage . . . orbring . . . into contemp[t] or disrepute” any “persons,living or dead.” 15 U. S. C. §1052(a). We now hold thatthis provision violates the Free Speech Clause of the FirstAmendment. It offends a bedrock First Amendment principle: Speechmay not be banned on the ground that it expresses ideas thatoffend.

I

A

“The principle underlying trademark protectionis that distinctive marks—words, names, symbols, and the like—canhelp distinguish a particular artisan’s goods from those ofothers.”B&B Hardware, Inc. v.Hargis Industries,Inc., 575 U. S. ___, ___ (2015) (slip op., at 3); see alsoWal-Mart Stores, Inc. v.Samara Brothers, Inc., 529U. S. 205, 212 (2000) . A trademark “designate[s] the goods asthe product of a particular trader” and “protect[s] his good willagainst the sale of another’s product as his.”United DrugCo. v.Theodore Rectanus Co., 248 U. S. 90, 97(1918) ; see alsoHanover Star Milling Co. v.Metcalf, 240 U. S. 403 –413 (1916). It helps consumersidentify goods and services that they wish to purchase, as well asthose they want to avoid. SeeWal-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, andtrademarks were protected at common law and in equity at the timeof the founding of our country. 3 J. McCarthy, Trademarks andUnfair Competition §19:8 (4th ed. 2017) (hereinafter McCarthy); 1id., §§5:1, 5:2, 5:3; Pattishal, The ConstitutionalFoundations of American Trademark Law, 78 Trademark Rep. 456,457–458 (1988); Pattishall, Two Hundred Years of American TrademarkLaw, 68 Trademark Rep. 121, 121–123 (1978); seeTrade-MarkCases, 100 U. S. 82, 92 (1879) . For most of the 19thcentury, trademark protection was the province of the States. SeeTwo Pesos, Inc. v.Taco Cabana, Inc., 505 U. S.763 –782 (1992) (Stevens, J., concurring in judgment);id.,at 785 (Thomas, J., concurring in judgment). Eventually, Congressstepped in to provide a degree of national uniformity, passing thefirst federal legislation protecting trademarks in 1870. See Act ofJuly 8, 1870, §§77–84, 16Stat. 210–212. The foundation of currentfederal trademark law is the Lanham Act, enacted in 1946. See Actof July 5, 1946, ch. 540, 60Stat. 427. By that time, trademark hadexpanded far beyond phrases that do no more than identify a good orservice. Then, as now, trademarks often consisted of catchy phrasesthat convey a message.

Under the Lanham Act, trademarks that are “usedin 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 principalregister . . . which are in lawful use in commerce by theowner thereof” may instead be placed on a different federalregister: the supplemental register. §1091(a). There are now morethan two million marks that have active federal certificates ofregistration. PTO Performance and Accountability Report, FiscalYear 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 systemof federal registration helps to ensure that trademarks are fullyprotected and supports the free flow of commerce. “[N]ationalprotection of trademarks is desirable,” we have explained, “becausetrademarks foster competition and the maintenance of quality bysecuring to the producer the benefits of good reputation.”SanFrancisco Arts & Athletics, Inc. v.United StatesOlympic Comm., 483 U. S. 522, 531 (1987) (internalquotation marks omitted); see alsoPark ’N Fly, Inc.,supra, at 198 (“The Lanham Act provides national protectionof trademarks in order to secure to the owner of the mark thegoodwill of his business and to protect the ability of consumers todistinguish among competing producers”).

B

Without federal registration, a validtrademark may still be used in commerce. See 3 McCarthy §19:8. Andan unregistered trademark can be enforced against would-beinfringers in several ways. Most important, even if a trademark isnot federally registered, it may still be enforceable under §43(a)of the Lanham Act, which creates a federal cause of action fortrademark infringement. SeeTwo Pesos,supra, at 768(“Section 43(a) prohibits a broader range of practices than does§32, which applies to registered marks, but it is common groundthat §43(a) protects qualifying unregistered trademarks” (internalquotation marks and citation omitted)).[1] Unregistered trademarks may also be entitled toprotection under other federal statutes, such as theAnticybersquatting Consumer Protection Act, 15 U. S. C.§1125(d). See 5 McCarthy §25A:49, at 25A–198 (“[T]here is norequirement [in the Anticybersquatting Act] that the protected‘mark’ be registered: unregistered common law marks are protectedby the Act”). And an unregistered trademark can be enforced understate common law, or if it has been registered in a State, underthat State’s registration system. See 3id., §19:3, at 19–23(explaining that “[t]he federal system of registration andprotection does not preempt parallel state law protection, eitherby state common law or state registration” and “[i]n the vastmajority of situations, federal and state trademark law peacefullycoexist”);id., §22:1 (discussing state trademarkregistration systems).

Federal registration, however, “confersimportant legal rights and benefits on trademark owners whoregister 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 ‘constructivenotice of the registrant’s claim of ownership’ of the mark,”ibid. (quoting 15 U. S. C. §1072); (2) “is ‘primafacie evidence of the validity of the registered mark and of theregistration of the mark, of the owner’s ownership of the mark, andof the owner’s exclusive right to use the registered mark incommerce on or in connection with the goods or services specifiedin the certificate,’ ”B & B Hardware,575 U. S. ___ (slip op., at 3) (quoting §1057(b)); and (3) canmake a mark “ ‘incontestable’ ” once a mark has beenregistered for five years,”ibid. (quoting §§1065, 1115(b));seePark ’N Fly, 469 U. S., at 193. Registration alsoenables the trademark holder “to stop the importation into theUnited 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 barcertain trademarks from the principal register. For example, atrademark cannot be registered if it is “merely descriptive ordeceptively misdescriptive” of goods, §1052(e)(1), or if it is sosimilar to an already registered trademark or trade name that it is“likely . . . to cause confusion, or to cause mistake, orto deceive,” §1052(d).

At issue in this case is one such provision,which we will call “the disparagement clause.” This provisionprohibits the registration of a trademark “which may disparage. . . persons, living or dead, institutions, beliefs, ornational symbols, or bring them into contempt, or disrepute.”§1052(a).[2] This clauseappeared in the original Lanham Act and has remained the same tothis day. See §2(a), 60Stat. 428.

When deciding whether a trademark isdisparaging, an examiner at the PTO generally applies a “two-parttest.” The examiner first considers “the likely meaning of thematter in question, taking into account not only dictionarydefinitions, but also the relationship of the matter to the otherelements in the mark, the nature of the goods or services, and themanner in which the mark is used in the marketplace in connectionwith the goods or services.” Trademark Manual of ExaminingProcedure §1203.03(b)(i) (Apr. 2017), p. 1200–150,http://tmep.uspto.gov. “If that meaning is found to refer toidentifiable persons, institutions, beliefs or national symbols,”the examiner moves to the second step, asking “whether that meaningmay be disparaging to a substantial composite[3] of the referenced group.”Ibid. If theexaminer finds that a “substantial composite, although notnecessarily a majority, of the referenced group would find theproposed mark . . . to be disparaging in the context ofcontemporary attitudes,” a prima facie case of disparagement ismade out, and the burden shifts to the applicant to prove that thetrademark is not disparaging.Ibid. What is more, the PTOhas specified that “[t]he fact that an applicant may be a member ofthat group or has good intentions underlying its use of a term doesnot obviate the fact that a substantial composite of the referencedgroup 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) (enbanc), as corrected (Feb. 11, 2016). He chose this moniker in orderto “reclaim” and “take ownership” of stereotypes about people ofAsian ethnicity.Ibid. (internal quotation marks omitted).The group “draws inspiration for its lyrics from childhood slursand 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 atthe PTO rejected the request, applying the PTO’s two-part frameworkand finding that “there is . . . a substantial compositeof persons who find the term in the applied-for mark offensive.”Id., at 30. The examining attorney relied in part on thefact that “numerous dictionaries define ‘slants’ or ‘slant-eyes’ asa derogatory or offensive term.”Id., at 29. The examiningattorney also relied on a finding that “the band’s name has beenfound offensive numerous times”—citing a performance that wascanceled because of the band’s moniker and the fact that “severalbloggers and commenters to articles on the band have indicated thatthey find the term and the applied-for mark offensive.”Id.,at 29–30.

Tam contested the denial of registration beforethe examining attorney and before the PTO’s Trademark Trial andAppeal Board (TTAB) but to no avail. Eventually, he took the caseto federal court, where the en banc Federal Circuit ultimatelyfound the disparagement clause facially unconstitutional under theFirst Amendment’s Free Speech Clause. The majority found that theclause en-gages in viewpoint-based discrimination, that the clauseregulates the expressive component of trademarks and consequentlycannot be treated as commercial speech, and that the clause issubject to and cannot satisfy strict scrutiny. See 808 F. 3d,at 1334–1339. The majority also rejected the Government’s argumentthat registered trademarks constitute government speech, as well asthe Government’s contention that federal registration is a form ofgovernment subsidy. Seeid., at 1339–1355. And the majorityopined that even if the disparagement clause were analyzed underthis Court’s commercial speech cases, the clause would fail the“intermediate scrutiny” that those cases prescribe. Seeid.,at 1355–1357.

Several judges wrote separately, advancing anassortment of theories. Concurring, Judge O’Malley agreed with themajority’s reasoning but added that the disparagement clause isunconstitutionally vague. Seeid., at 1358–1363. Judge Dykconcurred in part and dissented in part. He argued that trademarkregistration is a government subsidy and that the disparagementclause is facially constitutional, but he found the clauseunconstitutional as applied to THE SLANTS because that markconstitutes “core expression” and was not adopted for the purposeof disparaging Asian-Americans. Seeid., at 1363–1374. Indissent, Judge Lourie agreed with Judge Dyk that the clause isfacially constitutional but concluded for a variety of reasons thatit is also constitutional as applied in this case. Seeid.,at 1374–1376. Judge Reyna also dissented, maintaining thattrademarks are commercial speech and that the disparagement clausesurvives intermediate scrutiny because it “directly advances thegovernment’s substantial interest in the orderly flow of commerce.”Seeid., at 1376–1382.

The Government filed a petition for certiorari,which we granted in order to decide whether the disparagementclause “is facially invalid under the Free Speech Clause of theFirst Amendment.” Pet. for Cert. i; seesub. nom. Lee v.Tam, 579 U. S. ___ (2016).

II

Before reaching the question whether thedisparagement clause violates the First Amendment, we considerTam’s argument that the clause does not reach marks that disparageracial or ethnic groups. The clause prohibits the registration ofmarks 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 forRespondent 46.

Tam never raised this argument before the PTO orthe Federal Circuit, and we declined to grant certiorari on thisquestion when Tam asked us to do so, see Brief Responding toPetition for Certiorari, pp. i, 17–21. Normally, that would be theend of the matter in this Court. See,e.g.,Yee v.Escondido, 503 U. S. 519 –538 (1992);Freytag v.Commissioner, 501 U. S. 868 –895 (1991) (Scalia, J.,concurring in part and concurring in judgment).

But as the Government pointed out in connectionwith its petition for certiorari, accepting Tam’s statutoryinterpretation would resolve this case and leave the FirstAmendment question for another day. See Reply Brief 9. “[W]e haveoften stressed” that it is “importan[t] [to] avoid[d] the prematureadjudication of constitutional questions,”Clinton v.Jones, 520 U. S. 681, 690 (1997) , and that “we oughtnot to pass on questions of constitutionality . . .unless such adjudication is unavoidable,”Spector Motor Service,Inc. v.McLaughlin, 323 U. S. 101, 105 (1944) . SeealsoAlabama State Federation of Labor v.McAdory,325 U. S. 450, 461 (1945) ;Burton v.UnitedStates, 196 U. S. 283, 295 (1905) . We thus begin byexplaining why Tam’s argument about the definition of “persons” inthe Lanham Act is meritless.

As noted, the disparagement clause prohibits theregistration of trademarks “which may disparage . . .persons, living or dead.” 15 U. S. C. §1052(a). Tampoints to a definition of “person” in the Lanham Act, whichprovides that “[i]n the construction of this chapter, unless thecontrary is plainly apparent from the context . . . [t]heterm ‘person’ and any other word or term used to designate theapplicant or other entitled to a benefit or privilege or renderedliable under the provisions of this chapter includes a juristicperson as well as a natural person.” §1127. Because racial andethnic groups are neither natural nor “juristic” persons, Tamasserts, these groups fall outside this definition. Brief forRespondent 46–48.

Tam’s argument is refuted by the plain terms ofthe disparagement clause. The clause applies to marks thatdisparage “persons.” A mark that disparages a “substantial”percentage of the members of a racial or ethnic group, TrademarkManual §1203.03(b)(i), at 1200–150, necessar-ily disparages many“persons,” namely, members of that group. Tam’s argument would faileven 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” alsoclashes with the breadth of the disparagement clause. By its terms,the clause applies to marks that disparage, not just “persons,” butalso “institutions” and “beliefs.” 15 U. S. C. §1052(a).It thus applies to the members of any group whose members shareparticular “beliefs,” such as political, ideological, and religiousgroups. It applies to marks that denigrate “institutions,” and onTam’s reading, it also reaches “juristic” persons such ascorporations, unions, and other unincorporated associations. See§1127. Thus, the clause is not limited to marks that disparage aparticular natural person. If Congress had wanted to confine thereach of the disparagement clause in the way that Tam suggests, itwould have been easy to do so. A neighboring provision of theLanham Act denies registration to any trademark that “[c]onsists ofor comprises a name, portrait, or signature identifying aparticular living individual except by his written consent.”§1052(c) (emphasis added).

Tam contends that his interpretation of thedisparagement clause is supported by its legislative history and bythe PTO’s willingness for many years to register marks that plainlydenigrated African-Americans and Native Americans. These argumentsare unpersuasive. As always, our inquiry into the meaning of thestatute’s text ceases when “the statutory language is unambiguousand the statutory scheme is coherent and consistent.”Barnhart v.Sigmon Coal Co., 534 U. S. 438, 450(2002) (internal quotation marks omitted). Here, it is clear thatthe prohibition against registering trademarks “which may disparage. . . persons,” §1052(a), prohibits registration of termsthat disparage persons who share a common race or ethnicity.

Even if resort to legislative history and earlyenforcement practice were appropriate, we would find Tam’sarguments unconvincing. Tam has not brought to our attention anyevidence in the legislative history showing that Congress meant toadopt his interpretation. And the practice of the PTO in the yearsfollowing the enactment of the disparagement clause isunenlightening. The admitted vagueness of the disparagementtest[5] and the huge volume ofapplications have produced a haphazard record of enforcement. (Eventoday, the principal register is replete with marks that many wouldregard as disparaging to racial and ethnic groups.[6]) Registration of the offensive marks thatTam cites is likely attributable not to the acceptance of hisinterpretation of the clause but to other factors—most likely theregrettable attitudes and sensibilities of the time inquestion.

III

Because the disparagement clause applies tomarks that disparage the members of a racial or ethnic group, wemust decide whether the clause violates the Free Speech Clause ofthe First Amendment. And at the outset, we must consider threearguments that would either eliminate any First Amendmentprotection or result in highly permissive rational-basis review.Specifically, the Government contends (1) that trademarks aregovernment speech, not private speech, (2) that trademarks are aform of government subsidy, and (3) that the constitutionality ofthe disparagement clause should be tested under a new“government-program” doctrine. We address each of these argumentsbelow.

A

The First Amendment prohibits Congress andother government entities and actors from “abridging the freedom ofspeech”; the First Amendment does not say that Congress and othergovernment entities must abridge their own ability to speak freely.And our cases recognize that “[t]he Free Speech Clause. . . does not regulate government speech.”PleasantGrove City v.Summum, 555 U. S. 460, 467 (2009);seeJohanns v.Livestock Marketing Assn., 544U. S. 550, 553 (2005) (“[T]he Government’s own speech. . . is exempt from First Amendment scrutiny”);Boardof Regents of Univ. of Wis. System v.Southworth, 529U. S. 217, 235 (2000) .

As we have said, “it is not easy to imagine howgovernment could function” if it were subject to the restrictionsthat the First Amendment imposes on private speech.Summum,supra, at 468; seeWalker v.Texas Div., Sons ofConfederate Veterans, Inc., 576 U. S. ___, ___–___ (2015)(slip op., at 5–7). “ ‘[T]he First Amendment forbids thegovernment to regulate speech in ways that favor some viewpoints orideas at the expense of others,’ ”Lamb’s Chapel v.Center Moriches Union Free School Dist., 508 U. S. 384,394 (1993) , but imposing a requirement ofviewpoint-neutrality ongovernment speech would be para-lyzing. When a government entityembarks on a courseof action, it necessarily takes a particularviewpointand rejects others. The Free Speech Clause does notre-quire government to maintain viewpoint neutrality when itsofficers and employees speak about that venture.

Here is a simple example. During the SecondWorld War, the Federal Government produced and distributed millionsof posters to promote the war effort.[7] There were posters urging enlistment, the purchase ofwar bonds, and the conservation of scarce resources.[8] These posters expressed a viewpoint, butthe First Amendment did not demand that the Government balance themessage of these posters by producing and distributing postersencouraging Americans to refrain from engaging in theseactivities.

But while the government-speech doctrine isimportant—indeed, essential—it is a doctrine that is susceptible todangerous misuse. If private speech could be passed off asgovernment speech by simply affixing a government seal of approval,government could silence or muffle the expression of disfavoredviewpoints. For this reason, we must exercise great caution beforeextending our government-speech precedents.

At issue here is the content of trademarks thatare registered by the PTO, an arm of the Federal Government. TheFederal Government does not dream up these marks, and it does notedit marks submitted for registration. Except as required by thestatute involved here, 15 U. S. C. §1052(a), an examinermay not reject a mark based on the viewpoint that it appears toexpress. Thus, unless that section is thought to apply, an examinerdoes not inquire whether any viewpoint conveyed by a mark isconsistent with Government policy or whether any such viewpoint isconsistent with that expressed by other marks already on theprincipal register. Instead, if the mark meets the Lanham Act’sviewpoint-neutral requirements, registration is mandatory.Ibid. (requiring that “[n]o trademark . . . shallbe refused registration on the principal register on account of itsnature unless” it falls within an enumerated statutory exception).And if an examiner finds that a mark is eligible for placement onthe principal register, that decision is not reviewed by any higherofficial 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 aparty moves for cancellation, the registration expires, or theFederal Trade Commission initiates proceedings based on certaingrounds. 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 tosuggest that the content of a registered mark is government speech.If the federal registration of a trademark makes the markgovernment speech, the Federal Government is babbling prodigiouslyand incoherently. It is saying many unseemly things. See App. toBrief for Pro-Football, Inc., asAmicus Curiae. It isexpressing contradictory views.[9] It is unashamedly endorsing a vast array of commercialproducts and services. And it is providing Delphic advice to theconsuming public.

For example, if trademarks represent governmentspeech, what does the Government have in mind when it advisesAmericans 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 acoming disaster when it registered the mark “EndTimeMinistries”[14]?

The PTO has made it clear that registration doesnot constitute approval of a mark. SeeIn re Old Glory CondomCorp., 26 USPQ 2d 1216, 1220, n. 3 (TTAB 1993)(“[I]ssuance of a trademark registration . . . is not agovernment imprimatur”). And it is unlikely that more than a tinyfraction of the public has any idea what federal registration of atrademark means. SeeApplication of National Distillers &Chemical Corp., 49 C. C. P. A. (Pat.) 854, 863, 297 F. 2d941, 949 (1962) (Rich, J., concurring) (“The purchasing publicknows no more about trademark registrations than a man walking downthe street in a strange city knows about legal title to the landand buildings he passes” (emphasis deleted)).

None of our government speech cases evenremotely supports the idea that registered trademarks aregovernment speech. InJohanns, we considered advertisementspromoting the sale of beef products. A federal statute called forthe creation of a program of paid advertising “ ‘to advancethe image and desirability of beef and beef products.’ ” 544U. S., at 561 (quoting 7 U. S. C. § 2902(13)).Congress and the Secretary of Agriculture provided guidelines forthe content of the ads, Department of Agriculture officialsattended the meetings at which the content of specific ads wasdiscussed, and the Secretary could edit or reject any proposed ad.544 U. S., at 561. Noting that “[t]he message set out in thebeef promotions [was] from beginning to end the message establishedby the Federal Government,” we held that the ads were governmentspeech.Id., at 560. The Government’s involvement in thecreation of these beef ads bears no resemblance to anything thatoccurs when a trademark is registered.

Our decision inSummum is similarly farafield. A small city park contained 15 monuments. 555 U. S.,at 464. Eleven had been donated by private groups, and one of thesedisplayed the Ten Commandments.Id., at 464–465. A religiousgroup claimed that the city, by accepting donated monuments, hadcreated a limited public forum for private speech and was thereforeobligated to place in the park a monument expressing the group’sreligious beliefs.

Holding that the monuments in the parkrepresented government speech, we cited many factors. Governmentshave used monuments to speak to the public since ancient times;parks have traditionally been selective in accepting and displayingdonated monuments; parks would be overrun if they were obligated toaccept all monuments offered by private groups; “[p]ublic parks areoften closely identified in the public mind with the governmentunit that owns the land”; and “[t]he monuments that are accepted. . . are meant to convey and have the effect ofconveying a government message.”Id., at 472.

Trademarks share none of these characteristics.Trademarks have not traditionally been used to convey a Governmentmessage. With the exception of the enforcement of 15U. S. C. §1052(a), the viewpoint expressed by a mark hasnot played a role in the decision whether to place it on theprincipal register. And there is no evidence that the publicassociates the contents of trademarks with the FederalGovernment.

This brings us to the case on which theGovernment relies most heavily,Walker, which likely marksthe outer bounds of the government-speech doctrine. Holding thatthe messages on Texas specialty license plates are governmentspeech, theWalker Court cited three factors distilled fromSummum. 576 U. S., at ___–___ (slip op., at 7–8).First, license plates have long been used by the States to conveystate messages.Id., at ___–___ (slip op., at 9–10). Second,license plates “are often closely identified in the public mind”with the State, since they are manufactured and owned by the State,generally designed by the State, and serve as a form of “governmentID.”Id., at ___ (slip op., at 10) (internal quotation marksomitted). Third, Texas “maintain[ed] direct control over themes-sages conveyed on its specialty plates.”Id., at ___(slip op., at 11). As explained above, none of these factors arepresent in this case.

In sum, the federal registration of trademarksis vastly different from the beef ads inJohanns, themonuments inSummum, and even the specialty license platesinWalker. Holding that the registration of a trademarkconverts the mark into government speech would constitute a hugeand dangerous extension of the government-speech doctrine. For ifthe registration of trademarks constituted government speech, othersystems of government registration could easily be characterized inthe same way.

Perhaps the most worrisome implication of theGovernment’s argument concerns the system of copyrightregistration. If federal registration makes a trademark governmentspeech and thus eliminates all First Amendment protection, wouldthe registration of the copyright for a book produce a similartransformation? See 808 F. 3d, at 1346 (explaining that iftrademark registration amounts to government speech, “thencopyright registration” which “has identical accoutrements” would“likewise amount to government speech”).

The Government attempts to distinguish copyrighton the ground that it is “ ‘the engine of freeexpression,’ ” Brief for Petitioner 47 (quotingEldredv.Ashcroft, 537 U. S. 186, 219 (2003) ), but as thiscase illustrates, trademarks often have an expressive content.Companies spend huge amounts to create and publicize trademarksthat convey a message. It is true that the necessary brevity oftrademarks limits what they can say. But powerful messages cansometimes be conveyed in just a few words.

Trademarks are private, not government,speech.

B

We next address the Government’s argument thatthis case is governed by cases in which this Court has upheld theconstitutionality of government programs that subsidized speechexpressing a particular viewpoint. These cases implicate anotoriously tricky question of constitutional law. “[W]e have heldthat the Government ‘may not deny a benefit to a person on a basisthat infringes his constitutionally protected . . .freedom of speech even if he has no entitlement to thatbenefit.’ ”Agency for Int’l Development v.Alliancefor Open Society Int’l, Inc., 570 U. S. ___, ___ (2013)(slip op., at 8) (some internal quotation marks omitted). But atthe same time, government is not required to subsidize activitiesthat it does not wish to promote.Ibid. Determining which ofthese principles applies in a particular case “is not alwaysself-evident,”id., at ___ (slip op., at 11), but nodifficult question is presented here.

Unlike the present case, the decisions on whichthe Government relies all involved cash subsidies or theirequivalent. InRust v.Sullivan, 500 U. S. 173(1991) , a federal law provided funds to private parties for familyplanning services. InNational Endowment for Arts v.Finley, 524 U. S. 569 (1998) , cash grants were awardedto artists. And federal funding for public libraries was at issueinUnited States v.American Library Assn., Inc., 539U. S. 194 (2003) . In other cases, we have regarded taxbenefits as comparable to cash subsidies. SeeRegan v.Taxation With Representation of Wash., 461 U. S. 540(1983) ;Cammarano v.United States, 358 U. S498 (1959).

The federal registration of a trademark isnothing like the programs at issue in these cases. The PTO does notpay money to parties seeking registration of a mark. Quite thecontrary is true: An applicant for registration must pay the PTO afiling 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 paya fee of $300–$500 every 10 years. §2.6(a)(5); see also 15U. S. C. §1059(a). The Federal Circuit concluded thatthese fees have fully supported the registration system for thepast 27 years. 808 F. 3d, at 1353.

The Government responds that registrationprovides valuable non-monetary benefits that “are directlytrace-able to the resources devoted by the federal government toexamining, publishing, and issuing certificates of registration forthose marks.” Brief for Petitioner 27. But just about everygovernment service requires the expenditure of government funds.This is true of services that benefit everyone, like police andfire protection, as well as services that are utilized by onlysome,e.g., the adjudication of private lawsuits and the useof public parks and highways.

Trademark registration is not the onlygovernment registration scheme. For example, the Federal Governmentregisters copyrights and patents. State governments and theirsubdivisions register the title to real property and securityinterests; they issue driver’s licenses, motor vehicleregistrations, and hunting, fishing, and boating licenses orpermits.

Cases likeRust andFinley are notinstructive in analyzing the constitutionality of restrictions onspeech imposed in connection with such services.

C

Finally, the Government urges us to sustainthe disparagement clause under a new doctrine that would apply to“government-program” cases. For the most part, this argument simplymerges our government-speech cases and the previously discussedsubsidy cases in an attempt to construct a broader doctrine thatcan be applied to the registration of trademarks. The only newelement in this construct consists of two cases involving a publicemployer’s collection of union dues from its employees. Butthosecases occupy a special area of First Amendment case law, and theyare far removed from the registration of trademarks.

InDavenport v.Washington Ed.Assn., 551 U. S. 177 –182 (2007), a Washington lawpermitted a public employer automatically to deduct from the wagesof employees who chose not to join the union the portion of uniondues used for activities related to collective bargaining. Butunless these employees affirmatively consented, the law did notallow the employer to collect the portion of union dues that wouldbe used in election activities.Id., at 180–182. A publicemployee union argued that this law unconstitutionally restrictedits speech based on its con-tent; that is, the law permitted theemployer to assist union speech on matters relating to collectivebargaining but made it harder for the union to collect money tosupport its election activities.Id., at 188. Upholding thislaw, we characterized it as imposing a “modest limitation” on an“extraordinary benefit,” namely, taking money from the wages ofnon-union members and turning it over to the union free of charge.Id., at 184. Refusing to confer an even greater benefit, weheld, did not upset the marketplace of ideas and did not abridgethe union’s free speech rights.Id., at 189–190.

Ysursa v.Pocatello Ed. Assn., 555U. S. 353 (2009) , is similar. There, we considered an Idaholaw that allowed public employees to elect to have union duesdeducted from their wages but did not allow such a deduction formoney 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 theexpression of particular ideas.”Id., at 358; see alsoid., at 355 (“The First Amendment . . . does notconfer an affirmative right to use government payroll mechanismsfor the purpose of obtaining funds for expression”).

Davenport andYsursa are akin toour subsidy cases. Although the laws at issue inDavenportandYsursa did not provide cash subsidies to the unions,they conferred a very valuable benefit—the right to negotiate acollective-bargaining agreement under which non-members would beobligated to pay an agency fee that the public employer wouldcollect and turn over to the union free of charge. As in the cashsubsidy cases, the laws conferred this benefit because it wasthought that this arrangement served important governmentinterests. SeeAbood v.Detroit Bd. of Ed., 431U. S. 209 –226 (1977). But the challenged laws did not gofurther and provide convenient collection mechanisms for money tobe used in political activities. In essence, the Washington andIdaho lawmakers chose to confer a substantial non-cash benefit forthe purpose of furthering activities that they particularly desiredto promote but not to provide a similar benefit for the purpose offurthering other activities. Thus,Davenport andYsursa are no more relevant for present purposes than thesubsidy cases previously discussed.[15]

Potentially more analogous are cases in which aunit of government creates a limited public forum for privatespeech. See,e.g.,Good News Club v.MilfordCentral School, 533 U. S. 98 –107 (2001);Rosenberger v.Rec-tor and Visitors of Univ. of Va.,515 U. S. 819, 831 (1995) ;Lamb’s Chapel, 508U. S., at 392–393. See alsoLegal Services Corporationv.Velazquez, 531 U. S. 533 –544 (2001). Whengovernment creates such a forum, in either a literal or“metaphysical” sense, seeRosenberger, 515 U. S., at830, some content- and speaker-based restrictions may be allowed,seeid., at 830–831. However, even in such cases, what wehave termed “viewpoint discrimination” is forbidden.Id., at831.

Our cases use the term “viewpoint”discrimination in a broad sense, seeibid., and in thatsense, the disparagement clause discriminates on the bases of“viewpoint.” To be sure, the clause evenhandedly prohibitsdisparagement of all groups. It applies equally to marks that damnDemocrats and Republicans, capitalists and socialists, and thosearrayed on both sides of every possible issue. It deniesregistration to any mark that is offensive to a substantialpercentage of the members of any group. But in the sense relevanthere, that is viewpoint discrimination: Giving offense is aviewpoint.

We have said time and again that “the publicexpression of ideas may not be prohibited merely because the ideasare themselves offensive to some of their hearers.”Streetv.New York, 394 U. S. 576, 592 (1969) . See alsoTexas v.Johnson, 491 U. S. 397, 414 (1989) (“Ifthere is a bedrock principle underlying the First Amendment, it isthat the government may not prohibit the expression of an ideasimply because society finds the idea itself offensive ordisagreeable”);Hustler Magazine, Inc. v.Falwell,485 U. S. 46 –56 (1988);Coates v.Cincinnati,402 U. S. 611, 615 (1971) ;Bachellar v.Maryland, 397 U. S. 564, 567 (1970) ;Tinker v.Des Moines Independent Community School Dist., 393U. S. 503 –514 (1969);Cox v.Louisiana, 379U. S. 536, 551 (1965) ;Edwards v.SouthCarolina, 372 U. S. 229 –238 (1963);Terminiello v.Chicago, 337 U. S. 1 –5 (1949);Cantwell v.Connecticut, 310 U. S. 296, 311 (1940) ;Schneider v.State (Town of Irvington), 308U. S. 147, 161 (1939) ;De Jonge v.Oregon, 299 U. S. 353, 365 (1937) .

For this reason, the disparagement clausecannot be saved by analyzing it as a type of government program inwhich some content- and speaker-based restrictions arepermitted.[16]

IV

Having concluded that the disparagement clausecannot be sustained under our government-speech or subsidy cases orunder the Government’s proposed “government-program” doctrine, wemust confront a dispute between the parties on the question whethertrademarks are commercial speech and are thus subject to therelaxed scrutiny outlined inCentral Hudson Gas & Elec.Corp. v.Public Serv. Comm’n of N. Y., 447U. S. 557 (1980) . The Government andamici supportingits position argue that all trademarks are commercial speech. Theynote that the central purposes of trademarks are commercial andthat federal law regulates trademarks to promote fair and orderlyinterstate commerce. Tam and hisamici, on the other hand,contend that many, if not all, trademarks have an expressivecomponent. In other words, these trademarks do not simply identifythe source of a product or service but go on to say something more,either about the product or service or some broader issue. Thetrademark in this case illustrates this point. The name “TheSlants” not only identifies the band but expresses a view aboutsocial issues.

We need not resolve this debate between theparties because the disparagement clause cannot withstand evenCentral Hudson review.[17] UnderCentral Hudson, a restriction of speechmust serve “a substantial interest,” and it must be “narrowlydrawn.”Id., at 564–565 (internal quotation marks omitted).This means, among other things, that “[t]he regulatory techniquemay extend only as far as the interest it serves.”Id., at565. The disparagement clause fails this requirement.

It is claimed that the disparagement clauseserves two interests. The first is phrased in a variety of ways inthe briefs. Echoing language in one of the opinions below, theGovernment asserts an interest in preventing“ ‘underrepresented groups’ ” from being“ ‘bombarded with demeaning messages in commercialadvertising.’ ” Brief for Petitioner 48 (quoting 808F. 3d, at 1364 (Dyk, J., concurring in part and dissenting inpart)). Anamicus supporting the Government refers to“encouraging racial tolerance and protecting the privacy andwelfare of individuals.” Brief for Native American Organizations asAmici Curiae 21. But no matter how the point is phrased, itsunmistakable thrust is this: The Government has an interest inpreventing speech expressing ideas that offend. And, as we haveexplained, that idea strikes at the heart of the FirstAmendment.  Speech that demeans on the basis of race,ethnicity, gender, religion, age, disability, or any other similarground is hateful; but the proudest boast of our free speechjurisprudence is that we protect the freedom to express “thethought that we hate.”United States v.Schwimmer,279 U. S. 644, 655 (1929) (Holmes, J., dissenting).

The second interest asserted is protecting theorderly flow of commerce. See 808 F. 3d, at 1379–1381 (Reyna,J., dissenting); Brief for Petitioner 49; Brief for Native AmericanOrganizations asAmicus 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, at1380–1381 (opinion of Reyna, J.). Such trademarks are analogized todiscriminatory conduct, which has been recognized to have anadverse effect on commerce. Seeibid.; Brief for Petitioner49;Brief for Native American Organizations asAmici Curiae18–20.

A simple answer to this argument is that thedisparagement clause is not “narrowly drawn” to drive outtrademarks that support invidious discrimination. The clausereaches any trademark that disparagesany person, group, orinstitution. It applies to trademarks like the following: “Downwith racists,” “Down with sexists,” “Down with homophobes.” It isnot an anti-discrimination clause; it is a happy-talk clause. Inthis way, it goes much further than is necessary to serve theinterest asserted.

The clause is far too broad in other ways aswell. The clause protects every person living or dead as well asevery institution. Is it conceivable that commerce would bedisrupted by a trademark saying: “James Buchanan was a disastrouspresident” or “Slavery is an evil institution”?

There is also a deeper problem with the argumentthat commercial speech may be cleansed of any expression likely tocause offense. The commercial market is well stocked withmerchandise that disparages prominent figures and groups, and theline between commercial and non-commercial speech is not alwaysclear, as this case illustrates. If affixing the commercial labelpermits the suppression of any speech that may lead to political orsocial “volatility,” free speech would be endangered.

*  *  *

For these reasons, we hold that thedisparagement clause violates the Free Speech Clause of the FirstAmendment. The judgment of the Federal Circuit is affirmed.

It is so ordered.

Justice Gorsuch took no part in theconsideration or decision of this case.

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–1293

_________________

JOSEPH MATAL, INTERIM DIRECTOR, UNITED STATESPATENT AND TRADEMARK OFFICE, PETITIONERv. SIMON SHIAOTAM

on writ of certiorari to the united statescourt of appeals for the federal circuit

[June 19, 2017]

Justice Kennedy, with whom Justice Ginsburg,Justice Sotomayor, and Justice Kagan join, concurring in part andconcurring in the judgment.

The Patent and Trademark Office (PTO) has deniedthe substantial benefits of federal trademark registration to themark THE SLANTS. The PTO did so under the mandate of thedisparagement clause in 15 U. S. C. §1052(a), whichprohibits the registration of marks that may “disparage. . . or bring . . . into contemp[t] ordisrepute” any “persons, living or dead, institutions, beliefs, ornational symbols.”

As the Court is correct to hold, §1052(a)constitutes viewpoint discrimination—a form of speech suppressionso potent that it must be subject to rigorous constitutionalscrutiny. The Government’s action and the statute on which it isbased cannot survive this scrutiny.

The Court is correct in its judgment, and I joinParts I, II, and III–A of its opinion. This separate writingexplains in greater detail why the First Amendment’s protectionsagainst viewpoint discrimination apply to the trademark here. Itsubmits further that the viewpoint discrimination rationale rendersunnecessary any extended treatment of other questions raised by theparties.

I

Those few categories of speech that thegovernment can regulate or punish—for instance, fraud, defamation,or incitement—are well established within our constitutionaltradition. SeeUnited States v.Stevens, 559U. S. 460, 468 (2010) . Aside from these and a few othernarrow exceptions, it is a fundamental principle of the FirstAmendment that the government may not punish or suppress speechbased on disapproval of the ideas or perspectives the speechconveys. SeeRosenberger v.Rector and Visitors of Univ.of Va., 515 U. S. 819 –829 (1995).

The First Amendment guards against laws“targeted at specific subject matter,” a form of speech suppressionknown as content based discrimination.Reed v.Town ofGilbert, 576 U. S. ___, ___ (2015) (slip op., at 12). Thiscategory includes a subtype of laws that go further, aimed at thesuppression of “particular views . . . on a subject.”Rosenberger, 515 U. S., at 829. A law found todiscriminate based on viewpoint is an “egregious form of contentdiscrimination,” which is “presumptively unconstitutional.”Id., at 829–830.

At its most basic, the test for viewpointdiscrimination is whether—within the relevant subject category—thegovernment has singled out a subset of messages for disfavor basedon the views expressed. SeeCornelius v.NAACP LegalDefense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985)(“[T]he government violates the First Amendment when it deniesaccess to a speaker solely to suppress the point of view heespouses on an otherwise includible subject”). In the instant case,the disparagement clause the Government now seeks to implement andenforce identifies the relevant subject as “persons, living ordead, institutions, beliefs, or national symbols.” 15U. S. C. §1052(a). Within that category, an applicant mayregister a positive or benign mark but not a derogatory one. Thelaw thus reflects the Government’s disapproval of a subset ofmessages it finds offensive. This is the essence of viewpointdiscrimination.

The Government disputes this conclusion. Itargues, to begin with, that the law is viewpoint neutral because itapplies in equal measure to any trademark that demeans or offends.This misses the point. A subject that is first defined by contentand then regulated or censored by mandating only one sort ofcomment is not viewpoint neutral. To prohibit all sides fromcriticizing their opponents makes a law more viewpoint based, notless so. Cf.Rosenberger,supra, at 831–832 (“The. . . declaration that debate is not skewed so long asmultiple voices are silenced is simply wrong; the debate is skewedin multiple ways”). The logic of the Government’s rule is that alaw would be viewpoint neutral even if it provided that publicofficials could be praised but not condemned. The First Amendment’sviewpoint neutrality principle protects more than the right toidentify with a particular side. It protects the right to createand present arguments for particular positions in particular ways,as the speaker chooses. By mandating positivity, the law here mightsilence dissent and distort the marketplace of ideas.

The Government next suggests that the statute isviewpoint neutral because the disparagement clause applies totrademarks regardless of the applicant’s personal views or reasonsfor using the mark. Instead, registration is denied based on theexpected reaction of the applicant’s audience. In this way, theargument goes, it cannot be said that Government is acting withhostility toward a particular point of view. For example, theGovernment does not dispute that respondent seeks to use his markin a positive way. Indeed, respondent endeavors to use The Slantsto supplant a racial epithet, using new insights, musical talents,and wry humor to make it a badge of pride. Respondent’s applicationwas denied not because the Government thought his object was todemean or offend but because the Government thought his trademarkwould have that effect on at least some Asian-Americans.

The Government may not insulate a law fromcharges of viewpoint discrimination by tying censorship to thereaction of the speaker’s audience. The Court has suggested thatviewpoint discrimination occurs when the government intends tosuppress a speaker’s beliefs,Reed,supra, at ___–___(slip op., at 11–12), but viewpoint discrimination need not takethat form in every instance. The danger of viewpoint discriminationis that the government is attempting to remove certain ideas orperspectives from a broader debate. That danger is all the greaterif the ideas or perspectives are ones a particular audience mightthink offensive, at least at first hearing. An initial reaction mayprompt further reflection, leading to a more reasoned, moretolerant position.

Indeed, a speech burden based on audiencereactions is simply government hostility and intervention in adifferent guise. The speech is targeted, after all, based on thegovernment’s disapproval of the speaker’s choice of message. And itis the government itself that is attempting in this case to decidewhether the relevant audience would find the speech offensive. Forreasons like these, the Court’s cases have long prohibited thegovernment from justifying a First Amendment burden by pointing tothe offensiveness of the speech to be suppressed. Seeante,at 23 (collecting examples).

The Government’s argument in defense of thestatute assumes that respondent’s mark is a negative comment. Inaddressing that argument on its own terms, this opinion is notintended to imply that the Government’s interpretation is accurate.From respondent’s submissions, it is evident he would disagree thathis mark means what the Government says it does. The trademark willhave the effect, respondent urges, of reclaiming an offensive termfor the positive purpose of celebrating all that Asian-Americanscan and do contribute to our diverse Nation. Brief for Respondent1–4, 42–43. While thoughtful persons can agree or disagree withthis approach, the dissonance between the trademark’s potential toteach and the Government’s insistence on its own, opposite, andnegative interpretation confirms the constitutional vice of thestatute.

II

The parties dispute whether trademarks arecommercial speech and whether trademark registration should beconsidered a federal subsidy. The former issue may turn on whethercertain commercial concerns for the protection of trademarks might,as a general matter, be the basis for regulation. However thatissue is resolved, the viewpoint based discrimination at issue herenecessarily invokes heightened scrutiny.

“Commercial speech is no exception,” the Courthas explained, to the principle that the First Amendment “requiresheightened scrutiny whenever the government creates a regulation ofspeech because of disagreement with the message it conveys.”Sorrell v.IMS Health Inc., 564 U. S. 552, 566(2011) (internal quotation marks omitted). Unlike content baseddiscrimination, discrimination based on viewpoint, including aregulation that targets speech for its offensiveness, remains ofserious concern in the commercial context. SeeBolger v.Youngs Drug Products Corp., 463 U. S. 60 –72(1983).

To the extent trademarks qualify as commercialspeech, they are an example of why that term or category does notserve as a blanket exemption from the First Amendment’s requirementof viewpoint neutrality. Justice Holmes’ reference to the “freetrade in ideas” and the “power of . . . thought to get itselfaccepted in the competition of the market,”Abrams v.United States, 250 U. S. 616, 630 (1919) (dissentingopinion), was a metaphor. In the realm of trademarks, themetaphorical marketplace of ideas becomes a tangible, powerfulreality. Here that real marketplace exists as a matter of state lawand our common-law tradition, quite without regard to the FederalGovernment. Seeante, at 2. These marks make up part of theexpression of everyday life, as with the names of entertainmentgroups, broadcast networks, designer clothing, newspapers,automobiles, candy bars, toys, and so on. See Brief forPro-Football, Inc., asAmicus Curiae 8 (collectingexamples). Nonprofit organizations—ranging from medical-researchcharities and other humanitarian causes to political advocacygroups—also have trademarks, which they use to compete in a realeconomic sense for funding and other resources as they seek topersuade others to join their cause. Seeid., at 8–9(collecting examples). To permit viewpoint discrimination in thiscontext is to permit Government censorship.

This case does not present the question of howother provisions of the Lanham Act should be analyzed under theFirst Amendment. It is well settled, for instance, that to theextent a trademark is confusing or misleading the law can protectconsumers and trademark owners. See,e.g.,FTC v.Winstead Hosiery Co., 285 U. S. 483, 493 (1922) (“Thelabels in question are literally false, and . . . palpably so. Allare, as the Commission found, calculated to deceive and do in factdeceive a substantial portion of the purchasing public”). This casealso does not involve laws related to product labeling or otherwisedesigned to protect consumers. SeeSorrell,supra, at579 (“[T]he government’s legitimate interest in protectingconsumers from commercial harms explains why commercial speech canbe subject to greater governmental regulation than noncommercialspeech” (internal quotation marks omitted)). These considerations,however, do not alter the speech principles that bar the viewpointdiscrimination embodied in the statutory provision at issuehere.

It is telling that the Court’s precedents haverecognized just one narrow situation in which viewpointdiscrimination is permissible: where the government itself isspeaking or recruiting others to communicate a message on itsbehalf. SeeLegal Services Corporation v.Velazquez,531 U. S. 533 –542 (2001);Board of Regents of Univ. ofWis. System v.Southworth, 529 U. S. 217, 229, 235(2000) ;Rosenberger, 515 U. S., at 833. The exceptionis necessary to allow the government to stake out positions andpursue policies. SeeSouthworth,supra, at 235; seealsoante, at 13–14. But it is also narrow, to prevent thegovernment from claiming that every government program is exemptfrom the First Amendment. These cases have identified a number offactors that, if present, suggest the government is speaking on itsown behalf; but none are present here. Seeante, at14–18.

There may be situations where private speakersare selected for a government program to assist the government inadvancing a particular message. That is not this case either. Thecentral purpose of trademark registration is to facilitate sourceidentification. To serve that broad purpose, the Government hasprovided the benefits of federal registration to millions of marksidentifying every type of product and cause. Registered trademarksdo so by means of a wide diversity of words, symbols, andmes-sages. Whether a mark is disparaging bears no plausiblerelation to that goal. While defining the purpose and scope of afederal program for these purposes can be complex, see,e.g.,Agency for Int’l Development v.Alliance for Open SocietyInt’l, Inc., 570 U. S. ___, ___ (2013) (slip op., at 8),our cases are clear that viewpoint discrimination is not permittedwhere, as here, the Government “expends funds to encourage adiversity of views from private speakers,”Velazquez,supra, at 542 (internal quotation marks omitted).

*  *  *

A law that can be directed against speechfound offensive to some portion of the public can be turned againstminority and dissenting views to the detriment of all. The FirstAmendment does not entrust that power to the government’sbenevolence. Instead, our reliance must be on the substantialsafeguards of free and open discussion in a democratic society.

For these reasons, I join the Court’s opinion inpart and concur in the judgment.

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–1293

_________________

JOSEPH MATAL, INTERIM DIRECTOR, UNITED STATESPATENT AND TRADEMARK OFFICE, PETITIONERv. SIMON SHIAOTAM

on writ of certiorari to the united statescourt of appeals for the federal circuit

[June 19, 2017]

Justice Thomas, concurring in part andconcurring in the judgment.

I join the opinion of Justice Alito, except forPart II. Respondent failed to present his statutory argument eitherto the Patent and Trademark Office or to the Court of Appeals, andwe declined respondent’s invitation to grant certiorari on thisquestion.Ante, at 9. I see no reason to address this legalquestion in the first instance. SeeStar Athletica, L. L. C.v.Varsity Brands, Inc., 580 U. S. ___, ___ (2017)(slip op., at 6).

I also write separately because “I continue tobelieve that when the government seeks to restrict truthful speechin order to suppress the ideas it conveys, strict scrutiny isappropriate, whether or not the speech in question may becharacterized 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, 517U. S. 484, 518 (1996) (same). I nonetheless join Part IV ofJustice Alito’s opinion because it correctly concludes that thedisparagement clause, 15 U. S. C. §1052(a), isunconstitutional even under the less stringent test announced inCentral Hudson Gas & Elec. Corp. v.Public Serv.Comm’n of N. Y., 447 U. S. 557 (1980) .