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