## Facts

- Simon Shiao Tam, founder of the Asian-American band “The Slants,” sought federal registration of “THE SLANTS” for live musical performances.
- The USPTO refused registration under Lanham Act § 2(a), which barred marks that may “disparage” or bring into “contempt or disrepute” persons or groups.
- The examiner found “slants” had been used as a derogatory term for people of Asian descent and concluded a substantial composite of that group would find it offensive.
- Tam contended the band name was chosen to reclaim the term and reduce its derogatory meaning.
- The Trademark Trial and Appeal Board affirmed the refusal; a Federal Circuit panel initially affirmed, but the en banc Federal Circuit held the disparagement clause facially unconstitutional.
- The Supreme Court granted review to decide whether the disparagement clause violates the First Amendment.

## Issues

1. Whether registered trademarks constitute government speech, permitting the government to deny registration to disparaging marks without violating the First Amendment.
2. Whether trademark registration is a government subsidy or program allowing greater conditions on speech.
3. Whether the Lanham Act’s disparagement clause is unconstitutional viewpoint discrimination.

## Decision

- The Supreme Court unanimously affirmed the Federal Circuit and held the disparagement clause in 15 U.S.C. § 1052(a) unconstitutional under the Free Speech Clause.
- The Court held trademarks are private speech, and registration does not transform them into government speech.
- The Court rejected treating trademark registration as a subsidy or selective-funding program that would justify speech-based exclusions.
- The Court concluded the disparagement clause discriminates based on viewpoint because it permits positive or neutral views about a group while denying negative or offensive views.
- The clause failed constitutional scrutiny even assuming a more relaxed standard might apply in the trademark context.

## Legal Principles

- The government may not restrict speech because it expresses ideas that offend.
- Trademark registration does not convert private marks into government speech merely because the government maintains a registration system and confers legal benefits.
- Denying a legal benefit based on offensiveness to a “substantial composite” of a group is viewpoint-based discrimination when it disfavors disparaging ideas while allowing opposing viewpoints.
- The government-speech and subsidy doctrines have limits; administrative registration systems granting legal protections are not equivalent to government messaging or direct financial support.
- Viewpoint discrimination is presumptively unconstitutional and generally cannot be saved by characterizing the restriction as a condition on a government-administered benefit.

## Conclusion

The Court struck down the Lanham Act’s disparagement clause, holding that the First Amendment forbids denying trademark registration on the ground that a mark expresses disparaging or offensive ideas, because such a bar is viewpoint discrimination applied to private speech.


Matal v. Tam, 582 U.S. 218 (2017)