Dissenting. Here is the oral argument from april. Mr. Stewart thank you, mr. Chief justice, and may it please the court the lanham acts ban on federal registration of scandalous trademarks is not a restriction on speech but a valid condition on participation in a federal program. On its face, and as applied here, the provision is is viewpointneutral. The scandalous marks provision is one of many contentbased criteria for federal trademark registration, and consideration of a marks content is essential. Justice sotomayor could you please tell me how youre defining scandalous mark . From your brief, i thought you were giving it a different definition than has been used by the agency for a while. Mr. Stewart well, the the term the adjectives that have sometimes been used as synonyms for scandalous by the agency are terms like shocking, disgraceful, offensive, and disreputable. I think Justice Sotomayor well, if you use all those adjectives, you run headon to tam. Mr. Stewart i think one sense in which we have the i think this has been at the core of the prohibition, but i think tam has led us to focus more on limiting the scope of those adjectives. That is, on their face, those adjectives could encompass material that is offensive or shocking because of the outrageous views that it expresses. And we know from tam that thats Justice Sotomayor but thats viewpoint discrimination. Mr. Stewart thats viewpoint discrimination. Its not a valid basis for denial of federal registration of a trademark. I think it has always been the focus, but from here on, i believe it will be the exclusive focus on marks that are shocking, offensive or offensive because of the mode of expression, not because of the ideas. Justice ginsburg how is how is that determined, that a substantial composite of the general public would find the the mark shocking or offensive . I mean, if considering whats involved in this case, if you were to take a composite of, say, 20yearolds, do you think that that answer would be they would find it shocking . Mr. Stewart i i think not i think there are certainly some segments of society that are more likely to find particular marks shocking than others. I the the pto, it its initial determination was that this mark would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of a wellknown word of profanity and perhaps the paradigmatic word of profanity in our language. Justice sotomayor so why are you using a subjective standard . Why not just Something Like obscene, vulgar, even profane . But once you get to shockingly offensive, you get to viewpoint. One way or another, its always subjective. I i i can deal with a limiting principle that has its own substance, like obscenity. Mr. Stewart i i would agree that if you just looked at the words like shocking and offensive on their face and gave them their ordinary meanings, that they could easily encompass material that was shocking because it expressed an outrageous point of view or a point of view that most members Justice Kagan well, mr. Stewart, if if you agree with that, i mean, what are we supposed to be doing here . Are we supposed to be looking at the statutory words . Are we supposed to be looking at the fuller standard that the federal circuit gave to explain those words . Or are we supposed to be looking just at your commitments as to what youre doing Going Forward . I mean, if you take the statutory words, theyre very broad. They do include things that are offensive because of the ideas they express. So why isnt that just the end of the matter . And if if if Congress Wants to pass a statute thats narrower, thats focused on vulgarity or profanity, then congress can do that. Mr. Stewart well, i think typically the court would attempt to construe a federal statute in a way that would render it constitutional rather than unconstitutional. And i think the scandalous marks provision is, at the very least, susceptible of a reading that would render it constitutional. If the focus is on profanity, vulgarity and were not just talking about words. Were also talking about images, that trademarks can include images as well as words and if the scandalous marks provision were struck down, then applicants would be free to obtain registration of sexually explicit images. Chief Justice Roberts is it your this is a facial challenge, right . Mr. Stewart thats correct. Chief Justice Roberts so its not simply enough to determine that this particular trademark is scandalous, right . Mr. Stewart thats thats correct. Chief Justice Roberts well, i didnt understand you in your brief to make much of an argument about that. Mr. Stewart well, in part in part because, once you if you accept the ptos initial determination that this mark would be perceived as the equivalent of the past participle form of the the paradigmatic profane word in our culture, once you accept that, its hard to see what would be covered if this is not. But i certainly we certainly agree with your point that its a facial challenge. The question is whether it is susceptible of constitutional application. We think that mr. Brunettis mark was chief Justice Roberts whether the whether the provision itself is susceptible . Mr. Stewart of constitutional application. Chief Justice Roberts right. And this provision covers obscenity . Mr. Stewart it would cover obscenity. Now chief Justice Roberts so if its what would happen if we agreed with the respondents . Would the whole provision be struck down . Mr. Stewart i the respondents i the respondents might say that the provision on its face is so substantial that if the only legitimate applications were to obscene materials, the respondent might say it is so substantially broad, overbroad on its face, covers so much more than that, that it cant be sustained even chief Justice Roberts so if this is the entire provision is struck down, the government would not be able to restrict trademarks that are obscene . Mr. Stewart we i mean, the government could restrict without regard to federal registration, the government could restrict the sale of goods in commerce that that on which were emblazoned obscene trademarks or the the mailing of such goods. I think, for that reason, to limit it in that fashion wouldnt really accomplish much. We we agree that it should be limited so that it isnt viewpoint discriminatory, but to limit it to obscene words, both would render it a virtual nullity, and theres also no good reason that the standard for determining whether a particular mark can be placed on goods that are out in the public marketplace should be the same as the standard for determining whether the goods can be sent through the mail to a willing buyer. Chief Justice Roberts let me just be a little more precise. If if you lose this case, do you think the Trademark Office would be able to deny registration to marks on the grounds that theyre obscene . Mr. Stewart well, i i i think there are certainly ways if the court struck down the statute on its face on the ground that it was substantially overbroad, then, no, i dont think that there is any other provision of the of the trademark act. It it seems chief Justice Roberts well, and this is as weve established, this is a facial challenge . Mr. Stewart right. Chief Justice Roberts ok. So, if you lose, then you would not be able to restrict trademarks on the ground that theyre obscene . Mr. Stewart i i think thats i think thats correct. Justice kagan and and just so i could understand, youre asking us to narrow this statute to exactly what . Mr. Stewart to marks that are offensive, shocking to a substantial segment of the public because of their mode of expression, independent of any views that they may express. And Justice Ginsburg suppose suppose in the niche market that these goods are targeting, the the name is the word is mainstream. These these goods, as i understand it, are meant to attract a particular market, and if we concentrate on that market, from their perception, the word is mainstream. Mr. Stewart i dont think that would be an appropriate means of proceeding, and and let me explain why if i may. If you look, for instance, at George Carlins filthy words monologue, the monologue that was at issue in pacifica, thats a paradigmatic example of profane copyrightable expression. Now, our society has reached a good accommodation where people who find the carlin monologue funny or thoughtprovoking can buy the cds, they can buy the dvds; when carlin was alive, they could watch live performances. All that can be done without forcing the profanity upon anybody who finds it offensive. Justice alito but what is the standard that youre looking to, at bottom, and this is framed by Justice Ginsburgs question, is what is congresss interest . Is it does it have an independent interest in not having the federal government associated with certain words . Or is it just an interest in following whatever the population thinks is offensive or scandalous or immoral at a particular point in time . Mr. Stewart it is some of Justice Alito those are not necessarily the same. Mr. Stewart it is some of both, but, with respect to the second interest, we would emphasize the interest is in protecting unwilling viewers from material that they find offensive. And the point i was making about the carlin monologue is we there are ways in which that can be made readily available to people who want to see it or who want to listen to it without forcing it upon others. Trademarks cant work that way because the whole point of a trademark is to serve as a source identifier. It is Justice Alito well, i i dont see how the second interest is implicated much at all, because this this word and all sorts of other words can be used in connection with the sale of goods. Even if youre right, they just cant be registered trademarks. So why isnt it exclusively the first interest . Mr. Stewart well, its it its partly the first interest, but its partly the second because, even though the government cannot prohibit the use of a mark like this on the clothing, it can attempt to disincentivize it or it can attempt to remove the creation to avoid the creation of artificial incentives to its use by providing the benefits that are associated with federal trademark registration. And the point i Justice Sotomayor why are you resisting Justice Alito . Why cant the governments interest in not being associated with sexually explicit activity or words be enough . Mr. Stewart we think that it is enough, but we dont want to abandon the the first interest either because we do think Justice Sotomayor why . Mr. Stewart because we Justice Sotomayor im im im curious because Justice Alito is right, trademarks can be used with or without registration. You get certain statutory benefits, which is part of your Government Program argument. Mr. Stewart right. Justice sotomayor all right. But but im im just not quite sure why thats more compelling for you. Mr. Stewart i i Justice Sotomayor youre defending it in a way that suggests that im missing something. Mr. Stewart i wouldnt say that its more compelling, but i would say that the government has an independent interest in protecting unwilling viewers to the extent possible from materials that they find Justice Sotomayor but that falls that falls prey to what Justice Alito said, which is now the government is moving with public morals rather than with freedom of speech and the idea that morals can and should change. Mr. Stewart well, we i mean, we do have in a traditional subsidy program, for instance, if the government was handing out grants for aspiring artists, grants to help them them create art, the government obviously couldnt prohibit artists from creating vulgar, profane art, art that a substantial segment of the population would find offensive, but it might still have an interest in encouraging the creation of art that would be accessible and welcome to all segments of the community, including to to children. And, again, the point i was making about source identifiers is the reason that its not feasible to restrict source inspection of source identifiers to people who want the product is source identifiers are theyre not the expression that you get once you have decided to buy the product. They are one of the clues that you look at in deciding whether to buy the product. And so a trademark that you only saw after youd bought the package and opened it would fail entirely to serve its intended purpose. The federal Registration Program is intended to encourage and incentivize the use of distinctive words and symbols that will be made available for inspection by prospective buyers, by members Justice Kavanaugh how how do you excuse me, how do you deal with the problem of erratic or inconsistent enforcement, which seems inevitable with a test of the kind youre articulating . Mr. Stewart well, i think some of it is some of it will be resolved by tam, that is, to the extent that the pto had previously taken into account whether the views expressed were shocking or offensive, that wont be done any longer. The second thing i would say is more more leeway is given in situations in terms of vagueness in situations where the government is not prohibiting speech but is simply declining to provide a benefit. Here here, the consequence of the determination that mr. Brunettis mark was scandalous was not that he was subjected to any penalty, he could continue to market his goods and commerce with the the trademark he had been using. Justice kagan but, if i understand what youre saying, mr. Stewart, youre essentially saying we should uphold the statute on the basis of various commitments that the government is now making to apply this statute to only a small subset of the things that it could apply to if you look at it on its face as to just the words used. And and thats a strange thing for us to do, isnt it, to basically, you know, take your commitment that, look, these are very broad words, but were going to pretend that they Say Something much narrower than they do . Mr. Stewart well, i think even up to this point, the core of the provision as the pto has applied it has been profane, vulgar, vulgar words, sexually explicit images, offensive excretory references, things that were regarded as offensive. Justice ginsburg how can how can one say that when many of these marks have been refused registration on dual grounds, and one ground is that theyre scandalous and the other ground is that they resemble a mark that is already registered, so if the mark is already registered, then its not scandalous. Mr. Stewart i i think its anomalous at first glance, but i dont think that theres a logical contradiction because the lanham act doesnt simply prohibit registration of marks that are identical to a an existing mark. As you say, it prohibits registration of marks that are confusingly similar to existing marks. And its its logically possible to have two marks, one of which falls both of which fall very close to the line Justice Gorsuch well, but mister mr. Stewart one of which is barely scandalous Justice Gorsuch but mister Justice Alito but this is if this mr. Stewart the other Justice Gorsuch mr. Stewart, though Justice Alito go ahead. Justice gorsuch Justice Ginsburgs point takes us back to Justice Kavanaughs, i think, which is you look at the the seven words at the end of the red brief and there are shocking numbers of ones granted and ones refused that that do look remarkably similar. How is a reasonable citizen supposed to know . What notice do they have about how the governments going to treat their mark . Mr. Stewart well, i i think one of the i think the notice is in in part the based on the pto decisions, but, obviously, whatever the court says, if it upheld the provision, the court can say what it wants to say about the permissible Justice Gorsuch no, no, but let me we we can fix your problem for you, i got that. But but but the government, presumably, the pto is supposed to be doing this itself and without our interference. And its allowed a lot of marks with these words, and its refused a lot of marks without these words. I could not myself see a rational line through that chart at the end of the red brief. Is there one that the governments aware of or mr. Stewart well, i think, in part, the pto looks to context. And a a lot of the examples that are given of confusing of similar marks, one of which is refused registration, one of which is granted registration, are marks in which people will use a slightly different combination of letters that phonetically evokes an existing profane word. So you have marks that use the letters phuc and the pto will, in part, examine context in order to determine is that mark intended will it be Justice Gorsuch i dont want to i dont want to go through the examples. I really dont want to do that. [laughter] Justice Gorsuch but i can come up with several that are granted that that have have phonetics along the lines youve described and a couple that have been denied. And whats the rational line . How is a person a person who wants to get a mark supposed to tell what the pto is going to do . Is it a flip of the coin . Mr. Stewart i guess the two things i would say are, first, the pto looks to context. And so, if a phonetic word like the one i described appears in a sentence or in a phrase in which the profane word would commonly appear, the pto is more likely to conclude that a substantial segment of the public will regard that as the equivalent of the profane mark because it is being used in the way that the profane mark is often used. Justice alito whats going to if this is held to be unconstitutional, what is going to happen with whatever list of really dirty words still exist and all of their variations . Theres going to be a mad scramble by people to register these marks. And the ones who get there first are going to have exclusive theyre not unlimited. Whats going to theres going to be those who get there first are going to be the ones who have these. Mr. Stewart i mean, there there are other barriers to trademark registration. That is, its not the case that any nonscandalous word could be trademarked. It has to be the the sort of word or the sort of phrase, if its if its verbal, that consumers would perceive as identifying the source. And so short phrases or slogans are often refused registration on the grounds that they would be seen by consumers as communicating a thought, not as identifying the source of goods. And there is also the requirement that people who want to register their trademarks be using the mark in commerce, a person cant simply register a mark and sit back and wait for people to pay license fees in order to people who want to actually use it in commerce, to pay license fees. It is a prerequisite that they be using the mark in commerce. So there are some limitations, but, yes, you would think the natural result of allowing these marks to be registered is that there would be an increased flow of registration applications. And, again, this is not just for words, this is for visual depictions that are intended to signify the source of a product. Justice breyer what about racial slurs . Mr. Stewart i think, in general, racial slurs are taken off the table by tam, because it is the Justice Breyer because i ive looked into a little, and there are certain ones that have exactly the same physiological effect on a person, if any, as the word were using here, and there is a physiological effect. Mr. Stewart i Justice Breyer there is a its stored in a different place in the brain. It leads to retention of the word. There are lots of physiological effect with very few words. Its not too hard mr. Stewart i Justice Breyer to think of a racial slur that has exactly the same effect. Mr. Stewart agreed. I think there is one racial slur in particular that would be a close call even under our basic framework of you cant deny registration based on the views expressed, but you can deny it based on the mode of expression. You could say this particular racial slur is considered uniquely offensive, even as compared to other racist speech, and, therefore, it could be denied registration on the ground that it was an impermissible mode of expressing a racist racist thought. On the other hand, you could argue, at bottom, the reason that this slur is regarded as so offensive is that it is has historically been linked to virulent racist attitudes, and for that reason, it all comes down to viewpoint. An authentically close case even under the the framework that weve established. But, again, theres theres no sense in which the mark that is at issue here could be considered offensive because of any view it has expressed, that really really the argument on the other side is more it isnt offensive at all, not it is offensive because it is perceived as communicating a particular message. Chief Justice Roberts what about mr. Brunettis argument that the use of the word expresses a viewpoint precisely because of its offensiveness . You know, its edgy, it expresses a nonconformist attitude, all of that . Mr. Stewart i i dont deny that that might be a reason that people would use profanity in certain circumstances, but i think if that were treated as a form of viewpoint discrimination, it would really cast doubt on a lot of other practices. For example, weve weve indicated in in our brief that, under mr. Brunettis theory, if the government had if if a municipal government operated buses and rented out advertising on the buses but precluded the use of profanity on the advertisements, if the use if an applicant could say, as mr. Brunetti is saying, i want to use profanity because it communicates an edgy message, and i think the government legitimately should be able to say that may or may not be so, but we dont want profanity on our buses where theyre visible to unconsenting adults and children, we dont want that word on our buses regardless of the message that you intend to convey. And we think that would be sufficient to make the the provision viewpointneutral. Justice sotomayor well, you keep talking about this as a Government Program mr. Stewart uhhuh. Justice sotomayor and tam addresses this and says its an odd Government Program because people are paying you to give the service, youre not giving them much of anything except legal rights, which are not unimportant. But im not sure how to differentiate this from a limited public forum, as we recognized in cornelius, because, as in cornelius, registrants can go out and use the trademark, they could have sought donations from whomever they wanted in cornelius, and yet we talked and we held that the list of of of organizations was the forum. You havent argued very forcefully that this is a limited public forum. Why . Mr. Stewart i mean, i think i do think we dont regard it as a limited public forum because the Registration Program gives significant commercial benefits to registrants, but getting the mark on the ptos principal or supplemental register is not the way in which mr. Brunetti would want to communicate with his potential customers. The the way in which he would communicate with his potential customers is by advertisements, promotional materials, placing the goods on shelves Justice Sotomayor oh, but thats not true. It puts the world on notice of his mark. Mr. Stewart it does and it Justice Sotomayor and and it gives him the Legal Protections that come from that notice. Without it, he cant enforce any federal rights. So he needs registration to be able to do what he wants to do. Mr. Stewart and we think essentially the same Legal Standard should apply to the restrictions at issue here as would apply to a limited public forum. Our only point the reason we havent argued that it actually is a limited public forum is that the the register communicates not so much with mr. Brunettis customers but with potential infringers, people who might otherwise be tempted to to use the same mark on their goods. Now a couple of other things that id like to to say about the Registration Program. Youre right that people pay a fee to register, but the pto still devotes substantial resources to examining the trademarks, to publishing them. There are periodic theres a periodic reexamination to see whether the the applicant is still using the mark in commerce. And the advantages the commercial advantages that registrants get are directly attributable to the efforts that pto has put in. For example, the reason that it makes sense to treat trademark registration as prima facie evidence of the trademarks validity and the registrants ownership is that the pto has examined the materials and has made that determination. The reason it makes sense for the trademark to become incontestable after five years is that the pto has published the trademark, anyone who thinks that there might be a problem with it has an opportunity to see that the mark has been claimed and to raise an objection, and so, if a person doesnt so doesnt do so within five years, its fair to to treat the mark as incontestable. If i may, id like to reserve the balance of my time. Chief Justice Roberts thank you, counsel. Mr. Sommer. Mr. Sommer mr. Mr. Chief justice, and may it please the court. Theres two important points to be made. First, the government does not defend the plain language of the statute. Nor does it defend how its been consistently interpreted for the last 70 years. Rather, it asks this court to validate a hypothetical statute not enacted. The second point is that a substantial number of americans think that gambling, drinking, eating some types of meat, eating meat at all is immoral. A substantial number of americans, as to abortion, gun control, immigration, our two political parties, a substantial number think that those are the con is immoral, and a substantial number think that the pro is immoral. Theres no simply no way to make a a sensible determination between those that come in and those must stay out. Justice breyer but there are books and scientists reports and so forth, i dont know how i havent seen them contested, that say take six or seven words, and today in the past, they might have been religious, but today they do include the word at issue and they do include racial slurs. Of certain words. And they have a different physiological effect on the brain. Theyre stored in a different place. They make a difference in the conductivity of your skin, which shows emotion, and above all, they are remembered. And, therefore, take that set. Now, as if its in a context where it has that effect, for most people, why isnt that a pretty clear distinction from what youre talking about and why doesnt the government have a right to say, this is a commercial matter, purely commercial, it is totally free to use any word you want right next to this registered trademark, we just dont want to be associated with it . Mr. Sommer well, if youre asking about the government association, the tam court dealt with that already. Justice breyer i wasnt. I was asking mr. Sommer ok. Well Justice Breyer primarily about, there is a way of distinguishing these matters, i think. Mr. Sommer well Justice Breyer and i wouldnt ask you if i were certain of the answer. Mr. Sommer well, if youre suggesting that theres a contentneutral way of deciding which marks are too scandalous to register by doing a test of the test on the body Justice Breyer you dont have to do its not too tough, you know. I mean, most people know what words were talking about. And, of course, you could come in and show theyre all wrong on this, but they probably arent. Mr. Sommer but that that avoids the issue about whether this is viewpoint. And even if its not viewpoint, its still content. So if this statute clearly covers the government does not seem to dispute that at least many or some of the marks that are both granted and refused express viewpoint. Then the statute is overbroad. Justice kagan well, suppose the statute didnt say what it said, but suppose the statute, in fact, said what mr. Stewart says the pto is going to do Going Forward. In other words, the pto is not going to touch ideas that are offensive or scandalous or immoral or anything like that, its just going to focus on modes of speech and, essentially, what that means, lets just is it wont allow trademarks that are profane. Mr. Sommer well, the first quest Justice Kagan is that viewpointbased . Mr. Sommer yes, because, if you want to have a statute that prohibits profanity, obscenity, that would be constitutional. In fact, id like to sort of answer one of the previous questions, is is even if this statute is struck down, the pto still can refuse obscene trademarks because section 1 requires that the trademark needs to be used in commerce. And thats always been determined to be legally used in commerce. Justice kagan well, our our standard for obscenity is so high, i cant believe that many trademarks would really qualify as as obscene, but i but lets say that the government has a real interest in preventing a certain kind of just profanity, vulgarity, nothing to do with the viewpoints of speakers but something to do with the way they express those viewpoints. I guess that that a little bit stacks the deck in terms of the question, but why why would that be viewpointbased . Mr. Sommer well, if youre talking about the mode of expression argument, that is a misreading of cohen, because cohen could have said fooey on the draft, and thats what the government says he should have done, and if he said something else, he should have been arrested and his conviction should have been affirmed, but we know his conviction was reversed. So the mode of expression argument is incorrect. Justice alito well, its cohen rejected it in that context, where somebody was being punished for for saying the words, but is it a little isnt it is it exactly the same here . Mr. Sommer i think so. Justice alito the government is not saying, you cant use this phrase, this word, we just wont register it. Mr. Sommer well, there if youre if basically, the question seems to be is can we prohibit the seven dirty words. You know, if the government had a list of seven dirty words, would that be constitutional . And the answer is it would be not for two reasons. First, because you have seen in the briefs some marks that have the f word and racism and cancer. Those clearly express viewpoints. And the second thing is, even if you had a list of five words, that wouldnt preclude mr. Brunettis mark because it isnt exactly one of the seven dirty words. Justice alito oh, come on. You know, come on. Mr. Sommer well, i agree with Justice Alito be serious. We know what you know, what hes trying to say. Mr. Sommer thats Justice Alito so its you have the seven dirty words and anything that you know, any clever way of trying to say it in a different way, using different letters. Mr. Sommer but thats my point, because fcuk is granted and fvck is granted Justice Alito ok. It has been inconsistently applied, right . Lets say we are Going Forward and there is a list of words and you just cant use those. And your position is that would be unconstitutional . Mr. Sommer i think so. If congress were to pass that, wed be here again in a few years to determine whether thats true. Justice breyer well, but you you your your your basic point, and this is where im having a harder time, i think were in a period where swear words and thats what they are, swear words where their content is changing so that younger people feel that these racial slurs are just as bad, if not worse. So suppose that you can pick that out. Sometimes it will be used to convey a message. I grant you that. But this is business. And its not only business, it is business that has a function of identifying the manufacturer and it is the kind of use that doesnt forbid anybody from using that word, except to get registration, and you can put it right next to it. So its very different than carlin. Its very different. Now i want your response to as much of this question as you can give me. Mr. Sommer of im sorry, i dont really know where to start. It Justice Breyer i didnt think you necessarily would mr. Sommer yeah. Justice breyer because there are several things mixed up there. Mr. Sommer yeah. Justice breyer and i want in my mind this straightened out. Mr. Sommer well, i i as i think you agree, that its viewpoint because im not looking at it from the viewpoint Justice Breyer no, i dont agree with its viewpoint. I think that very often the word involved in your case and the racial slur is not viewpoint. It is used to insult somebody, rather Like Fighting words, or its used to call attention to yourself. Thats the purpose of the slur. That isnt viewpoint. Fighting words isnt viewpoint. Or, if it is, its overcome. Mr. Sommer well, mr. Brunettis viewpoint is, as already pointed out, i can be offensive, i dont have to obey the authority. And thats viewpoint. Chief Justice Roberts i dont want to distract you in that, but thats completely circular. Its like saying my protest is that i want to use words prohibited by, you know, not given trademark protection, and because i have that viewpoint, you have to give them trademark protection. That thats totally circular. Mr. Sommer well, if we look were doing have a facial challenge here, so the question is, is it overbroad . And it doesnt matter if mr. Brunettis mark should be granted or not. Its the statute as written and as applied, without exception, covers a fair amount of clearly core speech, of highvalue speech. And youre saying that this one Justice Breyer do thats a different argument. And i i i see that argument. Im not asking about that because i think i understand the argument. But i am what i am worried about is the viewpoint, as you say, but im also worried about the the racial slur we all know about, ok, suddenly, in certain places in the united states, appearing as a product name, appearing on every bus where its advertised, appearing on news stands in times square where it wouldnt be, but it might be in some other city, and where children and others see it. Now thats the interest that theyre talking about at the same time as they point out this doesnt stop anybody from saying, it does stop them from claiming its a registered trademark, i. E. , product source recognized by the government. Now thats what id like you to deal with directly. Mr. Sommer well, just granting federal registration doesnt require that anyone use a trademark. And my clients goods are not going to be a target at walmart. Justice gorsuch well, im not sure thats an answer to Justice Breyers question. Why isnt it a government benefit and why cant the People Choose to withhold the benefit on the basis that there are certain words that are profane and that we, as a matter of civility in our culture, would like to see less of rather than more of, and you can use youre free to use them. Cohen can have his tshirt, but we are not going to trademark them, and weve held just last year that a patent is a Public Benefit that can be withdrawn without a judge. Why isnt this also similarly a Public Benefit rather than a private right . Mr. Sommer well, i would respond with 44 liquormart, because the government doesnt have to grant the benefit. For example, the government doesnt have to have a fire department, but it cant go to a church and say, were not going to protect your church unless you drop your santeria beliefs because we find that offensive, and i think thats a good analogy. Justice sotomayor thats viewpoint. Why is it that the government cant say, as it does with every registration system, you can register your marriage, but we dont permit people to declare their love in their marriage license. We just ask for their name, their address, who were the witnesses, and where the marriage happened. The same things with a deed to a house. We dont permit you to have commercial advertisements in that deed telling people how wonderful your house is. We metes and bounds. The day of the Purchase Price and thats it. So why cant the government, just like with a patent, say, we will give you this benefit to these things but not to others . Mr. Sommer well Justice Sotomayor and we dont want profane words, no matter how you use them. Mr. Sommer well, i think theres two Justice Sotomayor whether its pro or con, any idea, we dont want vulgar, profane, sexually explicit, or other words. Now weve got a separate problem with the lack of consistent application by the government. Well put that aside. But lets deal with the basic question. Why cant the government say, no, were not going to give you space on our public registry for words that we find are not acceptable . Mr. Sommer well, i think youve explained why its not a public forum. Its not a forum at all. And, in fact, would the government be allowed to refuse registration of ownership of property because its bought by a church with a name thats considered offensive . Could the coast guard refuse to register a boat because they think the name of the boat is a little bit salacious . Justice sotomayor actually, youre right. Chief Justice Roberts maybe, but, i mean, the governments interests, you Justice Sotomayor i think they do. Chief Justice Roberts you say that, you know, this products not going to be in walmart, right . Mr. Sommer correct. Chief Justice Roberts but it is going to be on people walking down through the mall. And, you know, for parents who are trying to teach their children not to use those kinds of words, theyre going to look at that and say, well, look at that, and then, you know, theyre going to see the little trademark thing and say, well, its registered trademark. Well, they wont say that, but [laughter] chief Justice Roberts but you you understand my point, is that the governments registration of it will facilitate its use in commerce, not necessarily speech, but as a commercial product, and that has consequences regardless of where the product is sold . Mr. Sommer well, i think thats where the government has a a conundrum, because the government can has a assuming even if its only intermediate scrutiny, doesnt have a compelling interest if it cant stop people from using it. And so people mr. Brunetti can still use his mark regardless of whether its registered or not. Chief Justice Roberts yeah, i know, but the whole point is that the federal registration increases the exposure. Youre going to have more commercial the theory anyway is youre going to have more commercial opportunities and markets and if you do use if you are under the federal registration system. I mean, thats the governments argument. You can do whatever you want with it. Youre just not going to get the benefit of the governments participation in promotion of vulgarity. Mr. Sommer well, that gets back to why the statute was unconstitutional from the beginning, because the legislative intent shows that we the congress recognized it couldnt prohibit use of vulgar marks, but its the legislative history says that, well, we can deny registration and that will prevent them from using it. Justice kavanaugh what what is your answer to Justice Breyers comment that insult insulting someone is not a viewpoint . Mr. Sommer well, i would agree that all the traditional exceptions to the free speech, such as fighting words, is not expressing a viewpoint, but, as to insulting someone being viewpoint, you decided that unanimously in tam. Justice breyer tam was a word tam, they were using a word that doesnt have for whatever reasons, it doesnt have this tremendous retentive power that would lead someone to try as quickly as possible to get his brand registered with that name in order to grab attention. And there are such people. And that is not a word in tam. That is not that kind of a word. It was used ironically. It was used ironically for, perhaps, a politically oriented purpose. Now i dont know that ive just articulated much of a distinction. Mr. Sommer well, the trademark Justice Breyer but there may be something there. And i, again, want to hear your response. Mr. Sommer well, since tam, the Trademark Office has taken the position that it cannot refuse any racial slur. And, in fact, it is approving them. But even before tam, there were variations on that racial slur registered. Justice kavanaugh what about mr. Stewarts comment about public buses ad space that he says would not be able to be regulated if you were to prevail here . Mr. Sommer well, i guess sort of i hope this isnt too flippant, but you you have considered whether to grant cert on that question. But i dont think the profanity always expresses viewpoint. View in a trademark context Justice Kavanaugh when does it not . Mr. Sommer well, fleeting explicative, and i think when its used without any relevance to the subject matter, such as in high school speech, and, of course, there still can be Justice Sotomayor some some of us would say that a vulgar word with relationship to selling clothes is sort of irrelevant . Mr. Sommer well, its not irrelevant because, as Justice Ginsburg pointed out, the audience that mr. Brunetti is appealing to is young men who want to be rebels. And this is how they do it. Chief Justice Roberts well, that may be the audience hes targeting, but thats not the only audience he reaches. Mr. Sommer agreed. Chief Justice Roberts well, i mean, but that sort of gets to the government interest in whether or not it wants to be associated with facilitating this type of vulgarity with which reaches and the whole i mean, i guess you would say the whole point is to reach beyond the targeted audience to offend people. Mr. Sommer well, as under your jurisprudence, under the courts jurisprudence, if this is strict scrutiny or even if its content regulation, thats not a compelling government interest. And that sort of falls afoul of reno versus aclu, that says we cant take our level of discussion in our Diverse Society that includes, for example, a rapper chief Justice Roberts well, but everything the whole mr. Sommer to the chief Justice Roberts im sorry, go ahead. Mr. Sommer to to, you know, the lowest common denominator, the most squeamish among us. Chief Justice Roberts yeah, but the point this is a different type of program. The whole point of this program is to regulate content. You have to look at it and decide, is it, for example, functional or descriptive, in which case it doesnt get protection. Is it something thats been granted before, so it doesnt get protection . Mr. Sommer well chief Justice Roberts the fact that its it is, ill ill concede, its completely contentbased, but its the nature of the program. Mr. Sommer well, its not a program. Its a registration scheme, and it is not contentbased on most grounds. Likelihood of confusion deals and the deception clause deals with confusion and fraud, basically, which is Justice Kagan you would agree that there are other content restrictions, wouldnt you . You know, the flag one or you know, there are a number, yes . Mr. Sommer well, i think that 2 b , which deals with flag flags and symbols, and 2 c , with using peoples names, could under certain circumstances raise constitutional issues. I think 2 e , which deals with things that arent trademarks because theyre generic or functional, i dont think thats called into question. Justice alito you think likelihood of confusion is not contentbased . Mr. Sommer i think Justice Alito how do you determine whether something is likely to confuse without looking at the content of it . Mr. Sommer well, i would say not only contentbased, but id also say that that is the traditional exception of preventing confusion, because the whole point of refusing a new application is its likely to be confused with the other one. But youre actually not its almost like a secondary meaning case like city of renton, because youre looking at applied mark a and registered mark b, and youre not looking at the content. Thats really irrelevant. Youre only looking at the likelihood of confusion, the similarity. Justice kavanaugh with respect to words and letters, as opposed to images, is there any combination of words or letters that you think can be barred mr. Sommer well, i think it only Justice Kavanaugh under the scandalous immoral provision . Mr. Sommer well, i think, constitutionally, only obscenity can be barred. And it would be Justice Kavanaugh and what what would you with respect to words and letters, how would you define obscenity in this context . Mr. Sommer well, i would just use miller versus california because the government basically is arguing here we should ignore miller versus california or modify it or create a new exception to the First Amendment for vulgar. So a picture i can see can be obscene. And i can see if you had a long sentence that said some things, which i dont need to give you an example, but you could imagine a sentence or two that could be prurient interest and Justice Kavanaugh but that gets to the question of how do you draw a line between this and that. Mr. Sommer well, the court has been satisfied with the obscenity standard since 1970 whatever, miller versus california, and i think thats a good standard. I think thats settled jurisprudence. Justice gorsuch but what do we do about the fact this is a facial challenge, and so at least some of this material would presumably be ok even under your test for the for the Trademark Office to refuse . Mr. Sommer only im im contending that only obscenity could be refused properly. Justice gorsuch well, but isnt in a facial challenge, your your obligation is to prove that the that the statutes unconstitutional in all of its application or almost all of it. Mr. Sommer well, for vagueness, but for overbreadth, i believe its only necessary to show that it covers a substantial amount of speech. Justice gorsuch well, but a very substantial amount of speech. Where is the line here . Mr. Sommer well, thats why its unconstitutional, because it covers religious speech ive given you an example of religious controversial marks that were refused. Ive given you an example of political marks that has been refused, as well as as profanity. And the government cant even get that right because Justice Gorsuch well, but assuming profanity is borderline, right, and some of it might be ok for the for the government to regulate and some of it might not be. Just just assume that. Have you met your burden . Mr. Sommer i believe so, because i have shown that theres a substantial amount of speech that is improperly refused under this provision. And the provision is so incredibly overbroad, because if its taken at its word at its on its face, Steak N Shake cant be registered because some people believe you a substantial portion of americans believe that eating beef is immoral. And so now thats unconstitutional thats invalid, that registration. Justice kavanaugh im not sure you answered my bus question, so i want to get it one more time. If we rule for you in this case, is there a principled ground on which we could distinguish public bus ad space . Mr. Sommer definitely, because that is a public forum. And i think that the probably the clearest way is as public disruption, but i do see Justice Kavanaugh public . Mr. Sommer disruption. Justice kavanaugh because people see a word and all of a sudden mr. Sommer and then theres Justice Kavanaugh cant handle themselves . I dont understand that. Mr. Sommer and theres also a case that involves where bus affirming standards for taking ads because the purpose of the bus program is revenue. And i i think its from massachusetts, but i cant remember the name of the case. Justice kavanaugh can you explain the disruption point more . Mr. Sommer well, im not sure at least in the high school context, like bethel school, i think that there is disruption. Justice kavanaugh on a public on a public bus, how would this mr. Sommer ok. I i ill withdraw that. I think that might be hard to to draw a line there. Justice kavanaugh ok. Mr. Sommer well, if theres no further questions, i would simply say Justice Alito well, what about where if there may be words that are almost never used, actually, to express what the word literally means. They and the word your client wants to use is number one on the list. Like, 99 of the time were 95 of the time, it is not used to express what the word literally means. Its just used to say, im mad, i want to get attention. Its like shouting. Can it be can that be distinguished on that ground, that that it doesnt express any sort of viewpoint . All it expresses is an emotion, a way of of expressing something. Mr. Sommer well, i think two two responses. One, i think youve already decided that issue in tam by unanimously holding the giving offenses viewpoint. Justice alito no. Well, tam involved the expression of an idea, and and so there was viewpoint discrimination. Mr. Sommer well, because of your decision in tam, the the provision in the whole is invalid. And so all those racial slurs are coming in. Justice breyer so what exactly what is the harm to the First Amendment speech interest here . Simply notter all, forbidding the use of any word in any place, but you cant put a little r next to it. It doesnt stop you, registration, nonregistration. It makes it difficult to prove a trademark case, the case being about the source of a product, whatbout speech, so precisely is the harm. Im not saying there isnt one, i just want to get your words of what the harm to the interest, the First Amendment interest is people who want to have a somewhat undefined viewpoint are people with a more defined viewpoint. The other point they want to mate and that is court already ofd, denial if denial registration is sufficient sufficient burden thats why i wanted to get your articulation in best words into the statute books of the federal government as well as to withte our fueled prohibitions against saying all kinds of things in area of commerce, securities, you name it. Things sol kinds of what i want your words for is to distinguish this case in terms to First Amendment interests. All i want is your phrase on that. Im not saying you dont have one, i just want to get it into my head. I would say he cannot express his viewpoint without an unconstitutional burden. I take it the correct lling of the vulgar router word at the heart of the case cant be trademarked, right . It could be carried someone could register that if they used it as a source identifier, like a label. The one thing that is being isnt thes the use trademark use. On amark use is the use net label or like the government likes to ignore on blogs like say you wanted to say the governor, except we can have other examples queks i guess i dont understand, a mark on the neck . Quacks the trademark is a labels and the statute says any word or symbol can be a trademark unless there is a disqualifying condition. The trademarks are also more than the neck label because people use it for political parties, charitable groups, providing information about candidates for public offices. Are not purely commercial anymore. They were back when paul revere put his name on silverware but nowadays, paul river would say i write for freedom and that would be viewpoint. If the court has no further questions, the government some markspute that are viewpoint. It doesnt dispute that is his content regulation or that the statute doesnt supply strict scrutiny therefore i submit that it is unconstitutional. You are conceding to the chief justice that anyone who words on goods could use any profane word and register it . Well, theres two questions there. Can they use it . Because all the words about descriptive use, nontrademark use, apply. So people can use lets say someone has the word apple registered for clothing, but they still someone else could use an apple on the front of the clothing. And so thats nontrademark use. And so all those rules that are Justice Sotomayor but the word that the chief asked you about you say can be registered, if it is on the neck . Sommer i believe it can be. Justice sotomayor i think i understand your difference, but all right. Thank you. Chief Justice Roberts thank you, counsel. Four minutes, mr. Stewart. Mr. Stewart thank you, mr. Chief justice. Id like to make one factual clarification and then three quick legal points. First, as to the ptos Current Practice with respect to racial slurs, in general, the pto views tam as prohibiting a denial of registration for racial slurs, but, with respect to the singlemost offensive racial slur, the pto is currently holding in abeyance applications that incorporate that word, pending this courts decision on leave open the possibility that that word might be viewed as scandalous. Second, with respect to cohen, cohen simply illustrates the difference between a prohibition on speech and on contentbased restrictions on speech that are used to prohibit and contentbased criteria for government benefits. The reason that the law in cohen was held to be invalid was that it entirely prohibited the use of the word in a public space. Here, were not doing that. The the second thing i wanted to say and this follows up on questions from the chief justice and Justice Alito that contentbased distinctions are really ubiquitous in the Registration Program. We look to see whether marks are descriptive, whether theyre generic, whether they are confusingly similar to existing marks, and often the words that we find to be descriptive, generic, confusingly similar are incorporated into what could be viewed as messages. And in response to any allegation of viewpoint discrimination, we would say were not denying registration because it is being used to convey this message. Were denying registration to because it is descriptive, generic, et cetera. And we simply want to be able to follow the same approach with respect to profanity. Profane words can be used as part of a larger message, but were not denying registration because of the message, its because of the profanity. And the last thing id say about whether it matters, obviously, the reason mr. Brunetti cares about this enough to apply for federal for trademark registration and appeal to the federal circuit is that he believes that federal registration will convey commercial advantages. And within the context of a program that is intended to facilitate and strengthen trademarks, congress can legitimately decide that it wants to disincentivize the use of trademarks that substantial numbers of people would find offensive and to disassociate the government from those trademarks. Thank you. Chief Justice Roberts thank you, counsel. The case is submitted. Cspans washington journal, live with news and policy issues that impact you. Coming up this morning, sushi members of the House Foreign Affairs committee discussed the ongoing tensions between the u. S. And iran. First, republican congressman scott perry and then we are joined by virginia democratic congresswoman Abigail Spann berger. Policyrom aarps public institute, lee purvis will discuss the report on Prescription Drug prices and how increases have affected consumers and employers. Be sure to watch washington journal thursday and friday following the first democratic president ial debate of the 2020 race. Join the conversation both mornings with your phone calls, Facebook Comments and tweets. President trump signed executive orders mandating new economic sanctions on iran and its supreme leader. This came just days after iran shot down a u. S. Drone off its u. S. Coast. The u. S. Has imposed sanctions on iran since last year when it withdrew from a 2015 deal that had seen iran curb its Nuclear Program in exchange for easing of sanctions. The president has said he would be open to talks with iranian leaders but iran has rejected unless offer washington drops the sanctions. After the oval office announcement, secretary steve munition briefed Steve Mnuchin briefed reporters
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