Disparagement provision placed be placed on speech itself. It has historically been much more tied to First Amendment values, to the incentivizeation of Free Expression. Part of that seems to me to ignore the fact that we have a culture in which we had tshirts and logos and rock bands and so forth are expressing the point of view they are using the market to express views. I mean certainly disparagement wouldnt work with copyright. Thats a powerful important Government Program. Ret melet me say two or three things before that. Music the slants are expressing views on social and political issues. They have a First Amendment right to do that. Theyre able to copyright their songs and get intellectual Property Protection that way. If congress attempted to prohibit them either have having copyright protection or copyright registration on their music, that would pose a much more substantial First Amendment issue. I was somewhat surprised that in your brief you couldnt bring yourself to say that the government could not deny copyright protection to objectionable material. Are you willing to say that . I hate to give away any hypothetical statute without hearing the justification. But ill come as close as i possibly can to say yes, we would give that away. It would be unconstitutional to deny copyright protection on that ground. But i would also say even in the copyright context we would distinguish between limits on copyright protection and restrictions on speech. For instance, its historically been the case and it remains the position of the Copyright Office that a person cant copyright new words or short phrases even if a person comes up with something that is original, that is pithy, that makes a point, if its too short you cant get copyright protection. We would certainly defend the student of that traditional limit on the scope of copyrightable material. And if there were a First Amendment challenge brought, we would argue that theres a fundamental distinction between saying you cant copyright a fourword phrase and saying you cant say the fourword phrase or you cant write it in print. Theres a significant difference between the opyright regime. You cant sue for Copyright Infringement unless you register. Isnt that so . You have to have filed an application to register in order to pursue an infringement suit. So the statute, i believe its 17 u. S. C 411a indicates that if you filed an application to register your copyright even if the application has been denied you can still bring your copyright suit and the register is entitled to be heard on questions of copyrightability. There are no comparable restrictions on the trademark. Thats correct. You can file a suit under section 1125a of title 15 under the Trademark Laws either for infringement of an unregistered trademark or for unfair competition more generally. Counsel, im concerned that your Government Program argument is circular. The claim is youre not registering my marge because its disparaging. And your claim is we run a program that doesnt include disparaging trademarks, thats why youre excluded. It doesnt seem to advance the argument very much. Disparagement provision is only one of a number of restrictions on copy im sorry, on trademark registerability that couldnt be placed on speech itself. For example, marks that are merely descriptive, that are generic, marks that the applicant is not the true owner because somebody was previously using the mark in commerce, those cant be registered either. Each of those, and i know there are several. Are related to the ultimate purpose of the trademark. Which is to identify the source of a product. So every trademark makes that statement. Now, what is that purpose or objective of trademark protection does this particular disparagement provision help along or further, and im thinking of the provision that says you can Say Something nice about a Minority Group but you cant Say Something bad about them. With all the i dont know the others. I dont know all but i know many of them. And i can relate that. You relate this. I think congress evidently concluded that disparaging trademarks would hinder commercial development in the following way. A trademark in and of itself is a source identifier. Its function is to tell the public from whom do the services emanate. It is not expressive in its own right. It is certainly true that many commercial actors will attempt to devise trademarks that not only identify them as the source bru also are intended to convey positive messages about their products. For example, if you see the name jiffy lube or a b b thats kind piney vista, the mark is sort of a dual purpose communication. It both identifies the source and it serves as a kind of miniature advertisement. There is always the danger as some of the amicus briefs on our side point out, that when a person uses as his mark words that have other meanings in common discourse it will distract the consumer from the intended purpose of the trademark qua trademark, which is to identify source. And basically, Congress Says as long as you are promoting your own product saying nice things about people well put up with that level of distraction. Suppose the application here had been for slants are uperior. Thats a complimentary term. Would that then be taken outside the disparagement. I think that under the ptos historical practice probably not. And i think the same thing would be true of other racial epithets, terms that have long been used as slurs for particular Minority Groups. Why isnt that disparaging of everyone else . Slants are superior. Superior to whom . I think the basis for the ptos prarks and we obviously dont have that case, is the term slants in and of itself hen used with regard to asia asian americans. The only question i have for you is what purpose related to trademarks objective does this serve . And i want to be sure i have your answer. Your answer so far was it prevents the or it helps to prevent the user of the product from being distracted from the basic message, which is i made this product. I take it thats your answer. And if thats your answer, my followup question to that would be i can think pronl and with my law clerks perhaps 50,000 examples of instances where the space the trademark provides is used for very distracting messages, probably as much or more so than the one at issue, or disparagement. And what business does congress have picking out this one but letting all the other distractions exist . Well, i think what youve described is my first line answer, and i think the precise justification for different kinds of for prohibiting registration of different kinds of disparaging trademarks would depend to some extent on who is being disparaged your answer was distracting. And one of the great things of 99 of all trademarks is they dont just identify. Boy, do they distract. Its a form of advertising. So if the answer is distracting, not you didnt provide an answer to disparagement. Your answer to why disparagement was they dont want distraction from the message. They dont want distraction and they dont want particular types of distraction. That is thats where i have the question. What relation is there to the particular type of distraction, disparagement, and any purpose of a trademark . The type of distraction that may be caused by a disparaging trademark will depend significantly on the precise type of disparagement at issue. That is, in the case of racial epithets these words are known to cause harm, to cause controversy. In some sense they may be no more distracting than a positive message. But congress can determine this is the wrong kind of distraction. Mr. Please. Another type would be a Software Manufacturer who wants to register the trademark coke stinks, who wants to identify his own product with a sentiment that is antithetical to one of his xeefts. Congress can determine we would prefer not to encourage that form of commerce, we can prefer that commercial actors will promote their own products rather than disparage others. Obviously, under the First Amendment we couldnt prevent that kind of criticism but we can decline tone courage im sorry. Assuming government speech itself is not involved, i always thought that Government Programs were subject to one extremely important constraint, which is that they cant make distinctions based on viewpoint. So why isnt this doing exactly that . Because it precludes disparagement of and casts a wide net. Thats absolutely true. It precludes disparagement of democrats and republicans alike and so forth and so on. But it makes a very important distinction, which is that you can say good things about some person or group but you cant say bad things about some person or group. So for example, lets say that i wanted a mark that expressed the idea that all politicians are corrupt or just that democrats are corrupt. Either way. It doesnt matter. I couldnt get that mark. Even though i could get a mark saying that all politicians are virtuous or that all democrats are virtuous, either way. Doesnt matter. You see the point. The point is that i can say good things about something but i cant say bad things about something. And i would have thought that that was a fairly classic case of viewpoint discrimination. As we pointed out, laws like libel laws have not been historically treated as discriminatory based on viewpoint well, libel is one of our historically different but very distinct categories. And you dont make a claim that this falls into a category of low value speech that the way that libel laws, in the way that defamation does or fighting words or Something Like that. And youre not looking to create a new category. So in that case it seems the viewpointbased ban applies. And as i said i would be interested to hear your answer of why the example i stated is not viewpoint based. You can Say Something good about somebody but not something bad about somebody or something. Certainly if you singled out a particular category of people like political officials and said you cant say anything bad about any of them but you can say all the good things you want, i think that would be viewpointbased because it would be protecting a Discrete Group of people. Let me give a couple of answers. But why isnt that but if you didnt limit it, if you said you cant say anything bad about anybody anytime, thats ok . Were saying dont register your trademark if its disparaging. Certainly no, no, no. I said even in a Government Program, even assuming that this is not just a classic speech restriction, youre still subject to the constraint that you cant discriminate on thebase of viewpoint. In booth versus berry its not a majority opinion but the court there was confronted with a law that made it illegal to i believe it was post signs or engage in expressive activity within 500 feet of a Foreign Embassy that was intended to bring the Foreign Government into contempt or disrepute. And the law was struck down as sweeping too broadly. But at least the plurality would have held that it was not viewpointbased because it applied to all foreign embassies. It didnt turn on the nature of the criticism. Another example i would give, and its a hypothetical example but at least i have a strong instinct as to how the case should be decided. Suppose at a Public University the school set aside a particular room where students could post messages on topics that were of interest or concern to them as a way of promoting debate in a nonconfrontational way and the school said just two ground rules. No racial epithets and no personal attacks on any other members of the school community. It would seem extraordinary to say thats a viewpointbased distinction that cant stand because youre allowed to say complimentary things about your fellow students so the government is the omnipresent schoolteacher . Is that what youre saying . The governments a schoolteacher . No. Again, that analysis would apply only if the Public School was setting aside a room in its own facility. Clearly if the government attempted more broadly to restrict dispaging speech by students or others rather than simply to limit the terms under which a forum for communication could be made available, that would involve entirely different questions. Thats were the plufrltrality in booth versus berry would find it unconstitutional even though but one distinction is the scope of the Government Program. If youre talking about a particular discussion venue at a Public University, thats one thing. If youre talking about the entire trademark program, it seems to me to be something else. The trademark Registration Program and trademarks generally have not historically served as vehicles for expression. The landon act defines trademark and servicemark entrepreneur purely by reference to their source identification functions. And i think its to get back to copyright for just a second, i think its at least noteworthy that everyone would recognize that mr. Tam is not entitled to a copyright on the slants. The Copyright Office doesnt register short phrases. Two words is certainly short. Not because of the content or the viewpoint expressed. Its just its a short phrase. And any short phrase would be no good. This is you cant say slants because the pto thinks thats a bad word. Does it not count at all that everyone knows that the slants is using this term not at all to disparage but simply to describe . And take the sting out of the word. Trademark examining attorney went through this in a lot of detail, and the trademark examiner acknowledged that mr. Tams sincere intent appeared to be to reclaim the word, to use it as a symbol of asianamerican pride rather than to use it as a slur. He also found a lot of evidence in the form of internet commentary to the effect that many asianamericans, even those who recognized that this was mr. Tams intent, still found the use of the word as a band name offensive. The point i was trying to make about copyright is not that copyright protection would be denied on the ground of dispagement. Youre right, it would be denied because its a short phrase and not even an original phrase. But copyright is the branch of intellectual property law that is specifically intended to foster Free Expression on matters of cultural and political among other significance. Do you deny that trademarks are used for expressive purposes . I dont deny that trademarks are used for expressive purposes. As i was saying earlier, i think many commercial actors will pick a mark that will not only serve as a source identifier but that will cast their products in an attractive light and or that will communicate a message on some other topic. My only point is in deciding whether a particular trademark should be registered congress is entitled to focus exclusively on the source identification aspect. I wonder if you were not stretching the concept of a Government Program past the breaking point. The government provides lots of services to the general public, and i dont think you would say that those fall within the line of government cases youre talking about. Like providing Police Protection to the general public or providing Fire Protection to the general public. Those cost money and those are Government Programs. Can the government say, well, were going to provide protection for some groups but not for other groups . No. I think those would raise serious i mean, depending on the nature of the distinction, equal protection problems, potential the potential First Amendment problems too if the nature of the distinct was based on the persons speech, isnt that right . Well, clearly if it was based on viewpoint and clearly i would say so absolutely clearly if it was based on viewpoint. So i guess i dont want to interrupt your answer to justice alito. But i want to get back to because dont really understand the answer that you gave me before. You said a government regulation that distinguished between saying politicians are good and virtuous and politicians are corrupt would clearly be viewpointbased, is that right . And similarly, if you said that the flag is a wonderful emblem, this applies to National Symbols, but you could say the flag say wonderful emblem but you cant say that the flag is a terrible emblem. That would be viewpointbased. I mean, thats what this regulation does. It says you can say one of those things but you cant say the other and get trademark. But it sweeps with a broad brush. And i think the reason that viewpointbased discrimination has historically been the most disfavored type of regulation from a First Amendment perspective is that it creates the danger that the government is attempting to suppress disfavored messages. Theres a tee tab, a trademark deal with an appeal board decision from 1969 that declined to register a proposed trademark that was essentially the soviet hammer and sickle with a slash through it. And registration was denied on the ground that it disparaged the National Symbol of the soviet union. Now, obviously, hostility toward the soviet union was not inconsistent with United States policy in 1969. No one would have perceived the denial of trademark registration as an attempt to suppress a disfavored viewpoint. And the point of my defense of the statute is it sweeps with such a broad brush. But thats like saying it does so much viewpointbased discrimination that it becomes all right. But it does so i mean, it imposes this restriction only within the confines of a Government Program. Yes, yes, and im willing to give you that but even Government Programs, even Government Programs are subject to this restraint, which is you that cant distinguish based on the viewpoint of a speaker. But part of this Government Program is government speech. Let me just describe the two types of basic services that the pto performs in the course of administering the program. First, when an application is filed, the examining attorney and potentially the trademark trial and appeal board will go through it to see whether the applicant satisfies the statutory prerequisites to registration. And some of those like 1052a are not essential to having a valid trademark. But many of the prerequisites to registration overlap with the prerequisites to having a valid trademark. So when the examining attorney decides is this merely descriptive, is it generic, does it serve as a mark that consumers will associate with the product in commerce, is this person the true owner of the mark, the examining attorney is deciding the same sorts of questions that could arise in an infringement suit if the applicant ever filed one. What about scandalous thats another one. Scandalous or immoral . Those are just like disparage. They block you from registering, right . They do block you from registering the mark. Not from filing an infringement suit or alleging unfair competition. Thats the same thing. Thats the same thing as disparagement. I was just saying many of the other statutory prerequisites do overlap with the prerequisites to having a valid trademark. So if the examining attorney approves the application he is giving the applicant at least some comfort that he can continue to use the mark in commerce with the degree of confidence that if somebody else infringes the mark he will be able to satisfy the prerequisites. Running the federal courts is a Government Program. Can you say that the courts, when it comes to trademarks the courts are not open for actions to enforce infringement of a disparaging trademark . If congress had taken to its furthest possible step the desire to disassociate the federal government from the enforcement of how the hypothetical was framed. The furthest possible step. But do you apply the same analysis you do, simply with the case how far can they go in defining the Government Program . I think we would typically think of the ptos exercise of Discretionary Authority as the exercise of a Discretionary Authority by an executive Branch Agency as different from the neutral enforcement of the law by the courts. If youre a Government Program can you do anything you want with speech . What are the restrictions that we can is it you dont argue that this statute meets fixed scrutiny. I take it you dont. No. I think the basic test is is it reasonably related to the objectives of the Government Program and in cases of viewpoint discrimination, 234 cases where the Program Raises the concern that the government is attempting to promote favored messages and suppress disfavored messages the program would be presumptively unconstitutional. The second form of service that the pto provides in the course of administering the program is that if it decides the trademark should be registered it publishes the trademark on the federal register. And publication is significant in a variety of ways. First, outside the context of legal suits, publication of the trademark on the federal register reduces the likelihood that any infringement will occur because it provides notice to potential competitors in commerce that the pto has approved this mark. It will give them an incentive to choose marks that are not confusingly similar. Because your time is running, the questions have concentrated on viewpoint discrimination. But theres also a large concern with vagueness here. And the list that we have of things that were trademarked and things that werent. Take, for example, one had the word heeb. And that was ok in one application. And it was not ok in another. First, if the Court Accepts our basic theory that this should be judged by the standards that typically apply to government benefits under a Government Program, although the statute doesnt draw an entirely bright line its sufficiently clear. The court has approved, for instance, the criteria for awarding nea grants that were at issue in findlay to the effect that the grant giver should take account of the diverse views and beliefs of the american public. The pto receives 300,000 trademark applications every year. So its not surprising that there is some potential inconsistency. And the other thing the other two things i would say is first isnt there another way to say its not clear enough for them to get it right . Its not a bright line rule. I would say two further things before i sit down. The first is that i think a lot of the examples that the pto has had trouble with and where there may be an appearance perhaps the fact of inconsistent decisions are instances where people are deliberately using terms that have historically been insulting but with the intent to be edgy, provocative, to reclaim the slur. This is entirely legitimate. But when people selfconsciously use words in a way other than they have traditionally been used, its not surprising that sometimes theyre misunderstood. The second thing id say is the examples that the other side gives raise the concern that the pto might have approved some trademarks that it shouldnt have approved but they really havent identified any examples of marks that were rejected as disparaging even though no reasonable person could view them as such. Id like to preserve the balance of my time. Thank you, counsel. Mr. Connell. Thank you, mr. Chief justice. And may it please the court. If our client, mr. Simon tam, had sought to register the mark of his band as the proud asians, we would not be here today. But he did not do that. Instead he sought to register the slants. Suppose he had this hypothetical case. The facts are largely parallel to these. Other than the band are nonasians. They use makeup to exaggerate slanted eyes. And they make fun of asians. Could the government under a properly drawn statute decline to register that as a trademark in your view . They could not. First amendment protects absolutely outrageous speech insofar as trademarks are concerned. That is correct. I think you have to take that position. Yes. [laughter] we take that position because marks constitute commercial speech and noncommercial speech and the disparagement clause specifically targets the noncommercial speech and denied registration to marks that only express negative views. But in your view the congress could not draw a statute he even different to make the distinction that the hypothetical points out in the congress in your view can draw no statute denying trademark protection in the hypothetical case. I cannot think of a circumstance under which that could occur. Then i have a question for you. This is a bit different than most cases. No ones stopping your client from calling itself the slants. No ones stopping them from advertising themselves that way or signing contracts that way or engaging in any activity except that of stopping someone else from using the same trademark. But even that they can do because you dont need a if another band called themselves slants they would be subject to deceptive advertising because they wouldnt be this slants. So there is a big difference. You are asking the government to endorse your name to the extent of protecting it in a way that it chooses not to. So there is a reason why the arguments appealing. And why shouldnt we consider it in those ways when your speech is not being burdened in any traditional way . The Registration Program, the regulatory system of trademark registration is widely available to a broad number of mark holders who seek the Legal Protections of registration. In this case the government has used the disparagement clause to selectively deny those legal benefits to a mark holder expressing negative views that the government favors as opposed to mark holders who receive those benefits because they express a neutral or positive views that the government does favor. It doesnt answer my question. You can still use your name. But why is it a burden . It is a burden because our client is denied the benefits of Legal Protections that are necessary for him to compete in the marketplace with another. With another band and the only reason is the burdon on mark. Eech by the he can still sue. He can still compete. He can still compete. Its just hes not getting as much as he would like. But hes not stopped from doing what hes doing. His only resort would be to seek the protection of or assert his right to the exclusive use of the mark under section 43 or state trademark law or common law, none of which have the expense v and substantial benefits that this court has recognized under trademark registration. Does your argument depend on the breadth of the Government Program . I mean, lets say you had a Government Program putting on a festival or a lecture series we only want pro shakespeare presentations. Its about celebrating shakespeare. And if you disparage shakespeare you cant participate. Is there anything wrong with that . I dont believe there is in that limited forum. That would make a difference. But this is not that case. This is a widely Available Program thats made that all comers can utilize. No, its not. If you have a disparnling trade ingdismarriaging trade disparaging trademark you cant utilize it. Except it targets the noncommercial use of speech which has nothing to do with commercial objections of the laden act. I dont understand your distinction why the only celebrating Shakespeare Program is ok but the trademark one is not. You cant disparage shakespeare, you cant have disparaging remarks about anybody in the trademark context. Is it just the comprehensive nature of the Government Program . In this case it is. Why does that matter . Maybe the government decides we want to celebrate everything, we want to be relentlessly positive. [laughter] and Justice Kagan, that goes back to your point before that that would discriminate against any negative viewpoints and only arm one side of the debate. It isnt quite like that. After all, as Justice Sotomayor pointed out, this is more like a single Bulletin Board on the train station. A train station which has a thousand Bulletin Boards. People can say whatever they want. But this Bulletin Board, one out of 1,000, is reserved today for people who want to say nice things about shakespeare. This is not a general expression program. This is a program that has one objective. The objective is to identify the source of the product. It stops nobody from saying anything. All it says is when youre trying to fulfill our objective, which is identify the source of your product, if you want put a little circle with an r in it and right down beneath in tiny letters mr. And mrs. Smith, anything you want, but in that circle not the thing that says the insulting thing about somebody else. See . Very much like one shakespeare celebration out of a million. Or let me say 10 million to make the point stronger. You see . Thats where you cant express yourself. And then i said to them, well, why do you do that . And they said because, you know, the purpose of a trademark is to identify a source. Its not to get people into extraneous arguments. And what this will do is it will get people into extraneous arguments losing or diluting the force of a program that seeks to use a trademark to identify a source. Now, thats what i got out of my answer to the last question. On the other side. And i would like to know what you think. Actually, i think the governments position is i dont care what their position is. I want to know what you think in respect to the question im asking. I think what the governments trying to do here is simply encourage commercial actors to conduct business in such a way as to not insult customers. No, not conduct business. They can insult customers. Boy, you could have 50,000 insults on every physical item that you put out. All you cannot do is when it comes to a little mark or a form of words that is designed to say one thing im repeating myself. I am the source of the product. And you can do that in little letters, big letters, tiny letters, no letters, whatever. But there you have to stick to business. And if youre going to go beyond business dont use insults. Do you believe that they can stop trademarks from saying this is a trademark you cant use . Joe jones is a jerk. They could not stop they could not stop that. Can they say smiths beer is poison . They could not. Oh, my goodness. I mean, there are laws all over the place that stop you from saying that a competitor is has bad products. Its called product disparagement. There are laws all over the place that stop from you saying joe jones is a joke or something more specific. Theyre called libel laws or slander laws. But youre saying the government couldnt do that . The government cannot burden the noncommercial aspect of the mark. And thats what they would be doing in that case. Thats saying you cant have a trademark, a slogan, that has one of George Carlins seven dirty words. [laughter] if you were to use one of those seven words, we wont register your trademark. I think that is a burden on speech. In fact, i think if the phrase that was used in cohen versus california was trademarked theres no question that there would be a burden on the noncommercial aspect of that mark. This courts specific decision said it was ok to ban those words from the airwaves. Ban. Now, this is not yeah, you can have trademark protection but were not going to let you get the extra benefits of registration. It means you cant use those words on the air. And this court upheld it. Pacifica actually simply was limited to time, place, and manner restrictions. The court expressly said that they were not banning the use of those words. And in addition, pacifica did say that notwithstanding the content restrictions imposed on those words the fact of the matter was that if the restrictions were motivated by a negative view of the ideological or political message being conveyed that would be unconstitutional. The time place, or manner. There is time, place or manner. In fact, you can use these words anywhere at any time. In your performance. Just dont use them as the registered source of the message i am the owner of the band. Time, place and manner, you have the entire universe where you can say what you want, including this. So why is this somehow not a restriction on time, place, and manner if the others were . Because again i come back to the fact that this is a burden on the noncommercial aspect of the mark. Lets go back to if we can the earlier part of Justice Breyers question. 1052 has two components. You cant disparage or falsely suggest a connection with a person or institution. Are you challenge or saying that the second part of 1052, falsely suggest a connection, is unconstitutional as well . Thats not the question before this court. I know. But your argument earlier was that if someone slanders or libels an individual by saying trump before he was a public figure, trump is a thief, and that becomes their trademark, even if they go to court and prove thats a libel or slander that trademark would still exist and would be capable of use because otherwise canceling it would be an abridgment of the First Amendment . I believe thats correct. That makes mr. Connell, dont you think congress could deny trademark registration for something that fit within the narrow historically recognized category of libel and slander which have never been regarded as having First Amendment protection. I think the outer limit of protection are the categories of historically pro vibed prescribed speech. That would include threats. It would include fraud. Things such as is that. Thats not the case obviously with the mark that were using here. One of the things, mr. Connell, that troubles me about this case is that its not quite as simple as just saying, well, heres a Government Program and the government is discriminating on the basis of viewpoint because there are aspects of this program that seem like government speech itself. Maybe not quite that but something approaching it. Which is the program says that anything thats registered the government publishes in its own publication publication, the government sends to Foreign Countries again in its own publication, so the whole program is geared in such a way that individual marks that are register eded end up being i doubt anybody would adescribe them to the government but the government republishes them, communicates them, and so forth. And doesnt that aspect of the program give the government greater leeway than it would in a Typical Program in which no government speech is involved . It does not. The register simply serves as a recordation of the marks that the government has approved according to the statutory criteria. This is in no way different than patent registration, marriage license registration, any other type of typical government registration thats are simply ministerial. The government is not speak. Its not its message. The control over the creation and design of the mark is retained at all times by the owner. There is no history of the government using marks to speak through private mark holders. And theres no association between the government and the mark itself. But doesnt the government have some interest in disassociating itself from racial ethnic slurs . What about the license texas license, vanity license plate and they said we wont do one with a Confederate Flag . That was specifically a government speech case. Thats not our case here. This is not a government i. D. Issued on government property, controlled by the government as to design and content and so on. In fact, its exactly the opposite. Youve said several times that the problem is that the government is burdening noncommercial the noncommercial aspects of the trademark. But it seems to me that thats an awfully blurry line. A lot of these trademarks promote the commercial aspect in fact by disparaging other groups and they figure thats a way to promote sales. How do you tell the difference between the commercial aspect of the trademark and the noncommercial aspect . The commercial aspect is that part of the mark that simply identifies the source of the good or service in question. In the case of the slants, theres another component, that being the noncommercial, which communicates the political and social message of asian pride. This is akin to Justice Breyer before talking about the inherent advertisement that can take place. Bands dont exist without names and people associate the music with the band name and the band name with the music that they perform. So that is where the noncommercial aspect of the speech comes in. And to the extent that the government is burdening it by denying registration because they believe that it conveys a negative view, thats unconstitutional. You want us to say that trademark law is just like a public park, a public park, a public forum. The classic example of where you can say anything you want. We treat trademark just like we treat speech in a public park, thank you very much, thats it. Thats your argument . It is my argument. I think the limitation on that, as i said before, are the categories of historically proscribable speech. Well, mr. Connell, that just cant be right. Think of all the other things the other ill call them content distinctions because they are the trademark law makes. Section 2 prohibits the registration of any mark thats falsely suggestive of a connection with persons likely to cause confusion, descriptive, misdescriptive, functional, a geographic indication for wine or spirits, government insignia, a living persons name, portrait or signature. You couldnt make any of those distinctions in a public park. And yet of course you can make them in trademark law, cant you . All of those other distinctions are viewpoint neutral and advance the commercial objectives of the lanham act in terms of producing well, these might be viewpoint neutral but theyre certainly not content neutral, and yet we would i mean, i think that a challenge to many of these would fall flat. On what basis . Because how is trademark law supposed to function unless it can make these kinds of distinctions . Im suggesting that those sections would survive. Section ok. If those would survive, then this is not a public park. Because those would not survive in a public park. Agreed. Theres Something Different here, in other words, that this is coming up in the context of a Government Program. Which provides certain benefits that the government doesnt have to provide at all. The point here is that the Government Program, at least the goals of the lanham act, are to reduce confusion and that is a legitimate interest that the government has. And these factors under 1052 advance that purpose. Ill come back to the chief justices question. I really had difficulty separating the respective from the commercial aspect of a trademark. Nikes phrase just do it is a registered trademark. Is that commercial or is that expressive . It is both. The two are intertwined. Just like with the slants. You have the source identifier that is inextricably intertwined with the message that the mark is conveying about he the source or the goods and services identified. Dp theyre theyre inexplicably intertwined, then i dont understand how we can separate them and apply them to the expressive part a more rigorous test than we would apply to the commercial part. Im not sure i understand your question. Do you think that viewpoint discrimination is always prohibited in commercial speech . For example, could the government say and maybe it already has said that a manufacturer of cigarettes could not place on a package of cigarettes great for your health, dont believe the Surgeon General . Viewpoint is prohibited in commercial speech, no question, under the sorrell case. Its back to really the chief justices question. I wouldnt ask it except that i think you do have something of than answer you that havent fully expressed. Look, were creating through government a form of a property right. A certain form thats a trademark. Its as if through government youve created a certain kind of physical property right that certain people could dedicate a small part of their houses or land to peaceful grove and in peaceful grove you write messages. Peaceful messages. And above all you wont write messages that provoke others to violence or bad feelings. Anything wrong with that. I cant think of anything wrong with that. There are thousands of places where they can express hostile feelings. Its just in this tiny place, one quarter of an acre that you yourself have chosen to take advantage of, that you cant because it will destroy the purpose of peaceful thats why i asked my question. To what extent does interfering with viewpoints here serve a trademarkrelated purpose . As we can see how in peaceful grove or in shakespeare the messages that we were talking about did harm the government purpose and here theyre saying similarly disparaging messages get in the way of the objective of this program, which is to identify the source. Now, that i think is what i heard. Thats what id like you to think about and respond to. Disparaging messages in trademark do not interfere with the source. They simply control the other component of the message. The slants is the band. Its clearly identified. So the identification of the source, the service, the music in question, is served by the mark. What the government objects to is the other message. I understand that. But now your answer ok, ive got your answer. And now your other answers were worrying me because whats worrying me is i accept what you just said. Suppose i did. Am i suddenly saying no peaceful grove, no shakespeare celebration, no normal restrictions on normal restrictions you know, functional cant have functional things in a trademark, all the ones we read. If i buy into your answer that you just gave, have i suddenly opened the door to striking down all those things . No, i dont think so because why not . Because the purpose, as you said, your honor, of peaceful grove was to have a place of seclusion, of solitude, of calm. Thats completely different than the trademark regime, which is open to all comers and which simply is trying to advance the goal of source identification. And if the mark holder wishes to include a component in the mark to somehow advertise the good, the service to convey a different message that doesnt get in the way of the source identification. It seems to me that youre defining the Government Program differently than the government would. I think youre suggesting theres more to their program than just source identification. That is not clear at all in the lanham act. In fact the only purpose of the lanham act as identified by this court in park and fly and this was in citation i believe to the Senate Report was the reduction of consumer confusion and the protection of the goodwill of the mark holder. There was no suggestion that this was a politeness statute. We heard from mr. Stewart that they thought the disparagement aspect would distract from the commercial identification. I think thats what he said. Youre saying thats not really their purpose or well, ill say thats nowhere in the legislative history and thats nowhere in the legislation itself. I mean, that seems to be pulled out of thin air by the government who again in their brief talks about reducing the level of insult or the occasion of insult to customers. Thats not part of the lanham act. Thats not part of the commercial purpose of the lan act nham, would you say the same thing about a scandalous mark . Would that be equally impermissible . I think that conclusion is inevitable. If there are no further questions. Thank you, counsel. Thank you. Thank you. Mr. Stewart two, minutes. Thank you, mr. Chief justice. Let me make three quick points. Mr. Connell has said that the government Registration Program regulates only the expressive and be not the commercial aspect of the mark. And i think thats getting it exactly backwards. Mr. Tam wants to do two things with the mark the slants. He wants to use the mark himself with relation to his band and he wants to be able to sue other people who use it in a way that would cause him commercial harm. Denial of registration only affects the second thing. It place noz restrictions on the ability to use the mark. But thats entirely regulating the commercial aspects of the conduct. The second thing is mr. Connells position clearly is that the test for constitutionality of a registration condition is could the government ban this speech altogether. And putting that in place would eviscerate the trademark Registration Program. Most obviously as Justice Kagan has pointed out there are a lot of other contentbased registration criteria. And in addition, id point out one of the prerequisites to registration is that you be using the mark in commerce. If this were truly a suppression of speech wed ask by what authority could the government make the right to speak contingent on providing goods and services in commerce. Finally, you mentioned commercial speech. And there is an important government communicative aspect to this program. The preparation of the principal register is not just an ancillary consequence of this program. Its the whole point to provide a list of trademarks so other people know what has been approved, whats off limits. And the consequence of mr. Connells position is that the government would have to place on the principal register, communicate to Foreign Countries the vilest racial epithets, insulting caricatures of venerated religious figures. The test for whether the government has to do that cant be coextensive with whether private people can engage in that force of expression. Mr. Stewart, you really think speech can be restricted by the government on the ground that Foreign Countries may object to it . Could the government do that with copyright . An awful lot of things are copyrighted in in country that are deeply offensive to some Foreign Countries. And yet the fbi enforces the copyright laws. I would agree that with the copyright its different. Its historically played a far more fundamental role in Free Expression than trademark law has played. But the government at the very least has a Significant Interest in not incorporating into its thank you. Cases submitted. Announcer for more, go to