No. 15-1293
`In the Supreme Court of the United States
`
`
`
`MICHELLE K. LEE, UNDER SECRETARY OF COMMERCE
`FOR INTELLECTUAL PROPERTY AND DIRECTOR, UNITED
`STATES PATENT AND TRADEMARK OFFICE, PETITIONER
`v.
`SIMON SHIAO TAM
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`REPLY BRIEF FOR THE PETITIONER
`
`
`
`
`IAN HEATH GERSHENGORN
`Acting Solicitor General
`Counsel of Record
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`
`
`
`
`
`
`

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`
`
`TABLE OF CONTENTS
`
`Page
`
`A. Section 1052(a)’s disparagement provision does
`not burden speech ............................................................. 2
`B. Section 1052(a) establishes eligibility criteria for
`a government program and does not discriminate
`based on viewpoint ............................................................ 6
`C. The trademark-registration program is facially
`constitutional, like other government programs
`this Court has upheld ...................................................... 12
`D. Respondents’ statutory-construction and vagueness
`arguments lack merit ...................................................... 18
`
`TABLE OF AUTHORITIES
`
`
`
`Cases:
`Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l,
`Inc., 133 S. Ct. 2321 (2013) ................................................. 15
`American Freedom Def. Initiative v. Massachu-
`setts Bay Transp. Auth., 781 F.3d 571 (1st Cir.
`2015), cert. denied, 136 S. Ct. 793 (2016) .......................... 11
`Boulevard Entm’t, Inc., In re, 334 F.3d 1336
`(Fed. Cir. 2003) ............................................................... 2, 23
`Brown v. Entertainment Merchs. Ass’n, 564 U.S. 786
`(2011) ...................................................................................... 5
`Brunetti, In re, Serial No. 85310960, 2014 WL
`3976439, (T.T.A.B. Aug. 1, 2014), appeal pending,
`No. 15-1109 (Fed. Cir. docketed Oct. 28, 2014)................ 18
`Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837
`(1984) .................................................................................... 19
`Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
`473 U.S. 788 (1985)................................................................ 4
`Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 20
`Davenport v. Washington Educ. Ass’n, 551 U.S. 177
`(2007) .................................................................................... 14
`
`(I)
`
`

`
`II
`
`Page
`Cases—Continued:
`Eldred v. Ashcroft, 537 U.S. 186 (2003) ............................... 16
`FCC v. Pacifica Found., 438 U.S. 726 (1978) ................. 5, 11
`Forsyth Cnty. v. Nationalist Movement, 505 U.S.
`123 (1992) ............................................................................... 4
`Geller, In re, 751 F.3d 1355 (Fed. Cir. 2014),
`cert. denied, 135 S. Ct. 944 (2015) ............................... 19, 22
`Greyhound Corp. v. Both Worlds Inc., 6 U.S.P.Q.2d
`1635, 1988 WL 252489 (T.T.A.B. Mar. 30, 1988) ................ 8
`Holder v. Humanitarian Law Project, 561 U.S. 1
`(2010) .................................................................................... 22
`Lebanese Arak Corp., In re, 94 U.S.P.Q.2d 1215,
`2010 WL 766488 (T.T.A.B. Mar. 4, 2010) ......................... 20
`Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) ........ 13
`McGinley, In re, 660 F.2d 481 (C.C.P.A. 1981) .............. 8, 18
`Miller v. California, 413 U.S. 15 (1973) .............................. 17
`National Endowment for the Arts v. Finley,
`524 U.S. 569 (1998)........................................................ 10, 22
`Park ’N Fly, Inc. v. Dollar Park & Fly, Inc.,
`469 U.S. 189 (1985)............................................................ 6, 8
`Perry v. McDonald, 280 F.3d 159 (2d Cir. 2011) .......... 11, 15
`Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
`460 U.S. 37 (1983) ............................................................... 10
`R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ............... 5, 11
`Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) .................... 5
`Regan v. Taxation With Representation of Wash.,
`461 U.S. 540 (1983)........................................................ 12, 13
`Ridley v. Massachusetts Bay Transp. Auth.,
`390 F.3d 65 (1st Cir. 2004) ................................................. 11
`Rosenberger v. Rector & Visitors of Univ. of Va.,
`515 U.S. 819 (1995)................................................................ 4
`Rust v. Sullivan, 500 U.S. 173 (1991) ...............3, 4, 12, 13, 17
`
`
`
`

`
`III
`
`Page
`
`Cases—Continued:
`San Francisco Arts & Athletics, Inc. v. United
`States Olympic Comm., 483 U.S. 522 (1987) ............... 9, 16
`Shinnecock Smoke Shop, In re, 571 F.3d 1171
`(Fed. Cir. 2009), cert. denied, 558 U.S. 1149 (2010) ...... 23
`Simon & Schuster, Inc. v. Members of the N.Y. State
`Crime Victims Bd., 502 U.S. 105 (1991) ....................... 5, 12
`Snyder v. Phelps, 562 U.S. 443 (2011) ................................... 5
`Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ............... 4, 5
`Texas v. Johnson, 491 U.S. 397 (1989) .................................. 5
`United States v. Stevens, 559 U.S. 460 (2010) .................... 13
`Wal-Mart Stores, Inc. v. Samara Bros., Inc.,
`529 U.S. 205 (2000)................................................................ 9
`Walker v. Texas Div., Sons of Confederate Veterans,
`Inc., 135 S. Ct. 2239 (2015) ................................. 9, 10, 13, 15
`Wooley v. Maynard, 430 U.S. 705 (1977) .............................. 9
`Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353
`(2009) ................................................................................ 3, 13
`
`Constitution, treaties and statutes:
`U.S. Const. Amend. I ................................................... passim
`Paris Convention for the Protection of Industrial
`Property, Art. 6quinquies, July 14, 1967, 21 U.S.T.
`1643-1645, 828 U.N.T.S. 331, 333 ........................................ 7
`Act of July 5, 1946 (Lanham Act), ch. 540, 60 Stat.
`427 (15 U.S.C. 1051 et seq.) .................................................. 7
`15 U.S.C. 1051 .................................................................. 16
`15 U.S.C. 1051(a)(1) ........................................................... 6
`15 U.S.C. 1052 .................................................................... 2
`15 U.S.C. 1052(a) .................................................... passim
`15 U.S.C. 1052(c) ............................................................. 21
`15 U.S.C. 1057(a) ............................................................... 6
`
`
`
`

`
`IV
`
`Page
`Statutes—Continued:
`15 U.S.C. 1057(b) ............................................................... 7
`15 U.S.C. 1062 .................................................................... 6
`15 U.S.C. 1064 .................................................................. 23
`15 U.S.C. 1070 .................................................................. 23
`15 U.S.C. 1071 .................................................................. 23
`15 U.S.C. 1072 .................................................................... 7
`15 U.S.C. 1091 .................................................................... 6
`15 U.S.C. 1115(a) ............................................................... 7
`15 U.S.C. 1125(a) ............................................................... 3
`15 U.S.C. 1127 ............................................................ 16, 21
`15 U.S.C. 1141b .................................................................. 7
`17 U.S.C. 102 .......................................................................... 16
`18 U.S.C. 48 ............................................................................ 13
`20 U.S.C. 954(d)(1) ................................................................. 10
`Tex. Transp. Code Ann. § 504.801(c) (West Supp.
`2015) ..................................................................................... 11
`
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`
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`
`
`
`
`

`
`
`
`In the Supreme Court of the United States
`
`
`
`No. 15-1293
`MICHELLE K. LEE, UNDER SECRETARY OF COMMERCE
`FOR INTELLECTUAL PROPERTY AND DIRECTOR, UNITED
`STATES PATENT AND TRADEMARK OFFICE, PETITIONER
`v.
`SIMON SHIAO TAM
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`REPLY BRIEF FOR THE PETITIONER
`
`
`The statutory provision at issue, 15 U.S.C. 1052(a),
`does not restrict speech. Instead, it declines to assist,
`and declines to associate the federal government with,
`marks containing disparaging terms. Congress sensi-
`bly chose not to spend federal resources on encourag-
`ing the use of racial epithets, religious insults, and pro-
`fanity as trademarks—especially because, as part of
`the federal program, the United States Patent and
`Trademark Office (PTO) publishes registered marks
`and issues registration certificates, which are transmit-
`ted to foreign nations. In a variety of settings, this
`Court has recognized Congress’s broad authority to
`grant or withhold assistance to private speakers, or to
`decline to associate the government with messages that
`Congress finds objectionable. These principles apply
`here.
`
`(1)
`
`

`
`2
`
`Perhaps the most striking feature of respondent’s
`brief is its unwillingness to acknowledge any federal
`power to withhold the benefits of federal trademark
`registration from marks within categories that Con-
`gress views as inappropriate to indicate source. Al-
`though respondent asserts an intent to “appropriat[e]”
`a racial slur and to “us[e] it as a badge of pride” (Br.
`13), his First Amendment theory would apply equally
`to slurs used with disparaging intent. Under that theory,
`the PTO would be required to confer the benefits of
`registration on, and incorporate into its own communi-
`cations, the vilest racial, sexual, and religious slurs.
`Although the First Amendment gives respondent
`broad latitude to use racial slurs in his own communi-
`cations, it does not require the government to assist
`him in that endeavor. The court of appeals therefore
`erred in facially invalidating Section 1052(a)’s dispar-
`agement provision. Respondent’s statutory-construction
`and vagueness arguments also lack merit. The judg-
`ment of the court of appeals therefore should be re-
`versed.
`A. Section 1052(a)’s Disparagement Provision Does Not
`Burden Speech
`1. Section 1052 defines the categories of marks that
`are “registrable on [the] principal register.” 15 U.S.C.
`1052. If a mark does not meet the criteria established
`by Congress, the only consequence is that it is refused
`registration. Although denial of registration renders
`certain federal benefits unavailable, it “does not affect
`the applicant’s right to use the mark.” In re Boulevard
`Entm’t, Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003); see
`Gov’t Br. 21-22.
`
`
`
`

`
`3
`
`Respondent therefore is “free to spread his chosen
`message to all who would listen without fear of govern-
`ment intervention or reprisal.” Pet. App. 120a (Reyna,
`J., dissenting). Respondent may use THE SLANTS to
`identify his band and may invoke the federal cause of
`action and common-law protections to enforce his
`mark. See Gov’t Br. 20-21 (citing 15 U.S.C. 1125(a)).
`Section 1052(a) simply renders unavailable certain ad-
`ditional legal benefits that federal registration of his
`mark would provide.
`2. There is a fundamental constitutional difference
`between laws that regulate speech and laws that set pa-
`rameters for participation in a government program.
`Gov’t Br. 14-19. That distinction follows from the First
`Amendment’s text, which “prohibits government from
`‘abridging the freedom of speech’ ” but “does not confer
`an affirmative right” to government assistance in
`speaking. Ysursa v. Pocatello Educ. Ass’n, 555 U.S.
`353, 355 (2009) (quoting U.S. Const. Amend. I); see
`Gov’t Br. 29 (citing additional cases). The government
`has much more flexibility when it does not “restrict”
`speech, but instead “declines to promote” it. Ysursa,
`555 U.S. at 355; see Gov’t Br. 28-31 (explaining that in-
`eligibility for a government program is not itself a First
`Amendment burden).
`To be sure, the provision of government funding or
`other assistance is not “invariably sufficient to justify
`Government control over the content of expression.”
`Rust v. Sullivan, 500 U.S. 173, 199 (1991). For exam-
`ple, on types of public property that have traditionally
`been used for speech or expressive activity, particular
`restrictions have been held to violate the First Amend-
`ment despite the government’s status as property
`
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`

`
`4
`
`owner. See id. at 199-200. As respondent has acknowl-
`edged (C.A. En Banc Reply Br. 7, 9 n.6), however, the
`government has not created a forum here. The Princi-
`pal Register and Supplemental Register are not places
`for mark owners to express themselves; they are offi-
`cial government reports of the results of the PTO’s ex-
`amination and registration of marks, in order to pro-
`vide notice of the marks’ ownership and use. And reg-
`istration confers other advantages, and entails other
`forms of government participation, that bear no resem-
`blance to public-forum settings.
`Because there is no public forum here, cases such as
`Rosenberger v. Rector & Visitors of University of Vir-
`ginia, 515 U.S. 819 (1995), are inapposite.1 Nor has re-
`spondent identified any other basis for viewing trade-
`mark registration as “a traditional sphere of free ex-
`pression so fundamental to the functioning of our soci-
`ety” that Congress’s use of content-based distinctions
`is constitutionally proscribed. Rust, 500 U.S. at 200.
`Accordingly, “the general rule that the Government
`may choose not to subsidize speech applies with full
`force.” Ibid.
`3. Section 1052(a)’s disparagement provision is fun-
`damentally different from laws this Court has found to
`“burden” speech. Respondent invokes (Br. 21) this
`Court’s statement in Sorrell v. IMS Health Inc., 564
`U.S. 552, 566 (2011), that the government “may no[t]
`
`
`1 Petitioner also cites (Br. 22-24, 34) Forsyth County v. National-
`ist Movement, 505 U.S. 123 (1992), which addressed restrictions on
`parade permits that were “prior restraint[s] on speech” in a “public
`forum,” id. at 126, 130 (citation omitted), and Cornelius v. NAACP
`Legal Defense & Educational Fund, Inc., 473 U.S. 788 (1985), which
`addressed a charitable fundraising campaign the Court described as
`a “nonpublic forum,” id. at 799-806.
`
`
`

`
`5
`
`silence unwanted speech by burdening its utterance.”
`But Sorrell involved a prohibition on disclosure or use
`of information about pharmaceutical prescription prac-
`tices, id. at 563-564, not the denial of a government ben-
`efit. The other decisions petitioner cites (Br. 23-25)
`likewise involved bans, restrictions, or financial penal-
`ties on speech.2 Denial of federal trademark registra-
`tion, by contrast, leaves respondent free to use the
`term “slants” or any other insult or racial epithet with-
`out fear of government sanctions.
`Contrary to respondent’s characterization (Br. 24),
`Section 1052(a) does not impose a financial burden on
`speech. Unlike the authors who were required to relin-
`quish book profits under the law at issue in Simon &
`Schuster, Inc. v. Members of the New York State Crime
`Victims Board, 502 U.S. 105 (1991), respondent is no
`worse off as a result of the government’s adoption of a
`voluntary trademark-registration program. Respond-
`ent has all of the rights to use the mark that he would
`have in the absence of that program. If respondent’s
`view were correct, then every government decision to
`selectively fund exercise of a constitutional right could
`be characterized as a “burden” on that right.
`
`
`2 See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2224-2225 (2015)
`(banning display of certain signs); Brown v. Entertainment Merchs.
`Ass’n, 564 U.S. 786, 789 (2011) (ban on providing violent video games
`to minors); Snyder v. Phelps, 562 U.S. 443, 450 (2011) (tort liability
`for offensive funeral picketing); R.A.V. v. City of St. Paul, 505 U.S.
`377, 380 (1992) (criminal ban on cross burning); Simon & Schuster,
`Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105,
`109-110 (1991) (law requiring authors to relinquish income from
`books about their crimes); Texas v. Johnson, 491 U.S. 397, 400
`(1989) (criminal prosecution for flag burning); FCC v. Pacifica
`Found., 438 U.S. 726, 730 (1978) (restriction on profanities).
`
`
`

`
`6
`
`B. Section 1052(a) Establishes Eligibility Criteria For A
`Government Program And Does Not Discriminate
`Based On Viewpoint
`1. The basic purpose of the federal trademark-reg-
`istration program is to facilitate commercial activity by
`providing enhanced legal benefits to certain marks that
`connect particular goods or services to their sources.
`See, e.g., Park ’N Fly, Inc. v. Dollar Park & Fly, Inc.,
`469 U.S. 189, 198 (1985). In creating that program,
`Congress precluded registration of generic, descrip-
`tive, and functional marks, as well as marks containing
`a person’s name or likeness without consent, or a flag
`or national symbol, or scandalous or disparaging mat-
`ter. Gov’t Br. 22-23. The federal trademark-registra-
`tion program has included these types of content-based
`restrictions for more than one hundred years. See Pet.
`App. 105a (Lourie, J., dissenting); Gov’t Br. 23-24. Al-
`though the various restrictions on registrability serve
`somewhat different purposes, no one thinks that these
`restrictions are suspect simply because a person has a
`First Amendment right to use certain types of words.
`The federal registration program would be eviscerated
`if a vendor’s First Amendment right to use particular
`words in labeling or advertising were held to imply a
`First Amendment right to register those words as
`trademarks.
`Congress reasonably declined to associate the fed-
`eral government with marks containing disparaging
`matter. The PTO publishes registered marks in official
`government publications and records them on the
`PTO’s official register. See 15 U.S.C. 1051(a)(1),
`1057(a), 1062, 1091. It also issues certificates of regis-
`tration to mark owners “in the name of the United
`States,” 15 U.S.C. 1057(a), and those certificates are
`
`
`
`

`
`7
`
`transmitted to other countries and to the World Intel-
`lectual Property Organization to facilitate enforcement
`abroad, see Paris Convention for the Protection of In-
`dustrial Property, Art. 6quinquies, July 14, 1967, 21 U.S.T.
`1643-1645, 828 U.N.T.S. 331, 333; see also 15 U.S.C.
`1141b.
`The government’s association with a registered mark
`is by no means an incidental part of the trademark-
`registration program. Respondent identifies (Br. 19-
`20) various ways in which registration would strength-
`en his claim of ownership in the mark and enhance his
`ability to prevent others from using his mark. That as-
`sistance is available only because of the government’s
`involvement in examining and publishing the mark.
`“[R]egistration serves as nationwide constructive no-
`tice of the registrant’s claim of ownership,” Resp. Br.
`19 (citing 15 U.S.C. 1072), precisely because registered
`marks are listed in official government publications.
`“Registration constitutes prima facie evidence of the
`mark’s validity and the registrant’s exclusive right to
`use the mark,” ibid. (citing 15 U.S.C. 1057(b) and
`1115(a)), because a PTO examining attorney’s determi-
`nation that the prerequisites to registration are satis-
`fied is entitled to weight. Respondent cannot obtain the
`advantages he seeks without the government’s expend-
`ing resources and becoming associated with the mark.
`2. Respondent contends (Br. 30-31) that Section
`1052(a)’s limitations “do not advance” the Lanham’s
`Act purpose of promoting the identification of goods
`and services in commerce because disparaging marks
`can function effectively as source identifiers. But pro-
`tecting and assisting consumers is one of the key goals
`of the federal trademark-registration system. See
`
`
`
`

`
`8
`
`Park ’N Fly, Inc., 469 U.S. at 198. Encouraging com-
`mercial actors to conduct business in a way that does
`not insult potential consumers furthers that objective.
`See Pet. App. 115a, 117a-118a (Reyna, J., dissenting)
`(explaining that use of disparaging terms “tends to dis-
`rupt commercial activity and to undermine the stability
`of the marketplace in much the same manner as dis-
`criminatory conduct”); see also Members of Congress
`Amicus Br. 5-6. The government likewise has an inter-
`est in encouraging marks that identify and promote a
`person’s own goods and services without disparaging
`competitors. See Greyhound Corp. v. Both Worlds,
`Inc., 6 U.S.P.Q.2d 1635, 1988 WL 252489, at *4-*5
`(T.T.A.B. Mar. 30, 1988). And the government has a
`significant interest in preventing the incorporation of
`racial slurs and other insults into official federal rec-
`ords and publications.
`Congress reasonably declined to provide federal in-
`centives for commercial actors to identify their prod-
`ucts with racial epithets, insults, or profanity. See Pet.
`App. 81a (Dyk, J., concurring in part and dissenting in
`part). This is not a restriction on respondent’s behav-
`ior, but “a judgment by the Congress that such marks
`not occupy the time, services, and use of funds of the
`federal government.” In re McGinley, 660 F.2d 481,
`486 (C.C.P.A. 1981), overruled by Pet. App. 1a-122a.
`And while “preventing offense to listeners” (Resp. Br.
`1) would be a constitutionally insufficient rationale for
`a ban on the use of disparaging language, Congress
`may seek to encourage the use of non-disparaging
`marks by making the benefits of federal registration
`unavailable for racial slurs and personal insults.
`Respondent’s apparent view is that, because the
`trademark-registration program was not designed to
`
`
`
`

`
`9
`
`convey any affirmative government message, registra-
`tion of disparaging or otherwise offensive marks cannot
`undermine the program’s operation. But there is no
`logical inconsistency between (a) Congress’s general
`preference
`for non-disparaging
`trademarks, and
`(b) Congress’s willingness to leave the choice of suita-
`ble marks, within broad parameters, to private com-
`mercial actors. And the interests of both private and
`governmental actors in disassociating themselves from
`language or symbols they find offensive are not limited
`to situations where those actors have a specific con-
`trary message to convey. See Walker v. Texas Div.,
`Sons of Confederate Veterans, Inc., 135 S. Ct. 2239,
`2253 (2015) (private organization “cannot force Texas
`to include a Confederate battle flag on its specialty li-
`cense plates”); Wooley v. Maynard, 430 U.S. at 705,
`715-717 (1977) (State could not require private motorist
`to display state motto on his license plate).
`3. Respondent emphasizes (see, e.g., Br. 35-37) that
`some trademarks, including THE SLANTS, have ex-
`pressive aspects and/or are part of a larger expressive
`endeavor. The purpose of a trademark, however, is to
`identify source, and many of the most effective trade-
`marks are fanciful, arbitrary, or suggestive terms that
`communicate nothing other than source. See Wal-Mart
`Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 212-
`213 (2000); see also 15 U.S.C. 1127. This Court has de-
`scribed trademarks as “commercial speech,” which re-
`ceives “a limited form of First Amendment protection.”
`San Francisco Arts & Athletics, Inc. v. United States
`Olympic Comm., 483 U.S. 522, 535 (1987) (citation
`omitted). And the statutory restrictions on the marks
`that may be registered leave respondent free to use
`
`
`
`

`
`10
`
`whatever words he wishes to identify and promote his
`services.
`Respondent’s assertion (Br. 36) that “the disparage-
`ment clause regulates only the expressive component
`of trademarks, never the commercial component,” gets
`the matter exactly backwards. Federal registration is
`advantageous principally because it assists the mark
`owner in obtaining redress from infringers. See p. 7,
`supra; Resp. Br. 19-20. Respondent asserts a First
`Amendment right not simply to government assistance,
`but to government assistance in suppressing his com-
`petitors’ speech. Denial of registration renders those
`commercial advantages unavailable, but it does not im-
`pair the mark owner’s ability to use the mark for his
`own expressive purposes.
`4. Respondent contends (Br. 15-19) that Section
`1052(a) discriminates on the basis of viewpoint. But
`Section 1052(a)’s disparagement provision is “not an ef-
`fort to suppress expression merely because public offi-
`cials oppose the speaker’s view.” Perry Educ. Ass’n v.
`Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983).
`Marks that disparage Democrats and marks that dis-
`parage Republicans, for example, are equally unregis-
`trable. Congress permissibly chose not to encourage
`adoption of “disparag[ing]” terms as trademarks, 15
`U.S.C. 1052(a), just as Congress previously chose not
`to fund art inconsistent with “general standards of de-
`cency and respect for the diverse beliefs and values of
`the American public,” National Endowment for the
`Arts v. Finley, 524 U.S. 569, 572 (1998) (quoting 20
`U.S.C. 954(d)(1)), and just as the State of Texas de-
`clined to issue specialty license plates that “might be
`offensive to * * * the public.” Walker, 135 S. Ct. at
`
`
`
`

`
`11
`
`2245 (quoting Tex. Transp. Code Ann. § 504.801(c)
`(West Supp. 2015)).
`Respondent contends (Br. 16) that Section 1052(a)
`turns on viewpoint because it permits registration of
`marks that “express a positive or neutral view of a per-
`son,” but not those that “express a negative view.” But
`Section 1052(a) does not “disfavor[] * * * one side of a
`debate,” ibid., since no side may register racial epithets
`or personal insults. The Court made this point in
`R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), when it
`explained that a statute prohibiting the use of “odious
`racial epithets” by “proponents of all views” would not
`discriminate based on viewpoint. Id. at 391. Relying
`on R.A.V., the First Circuit concluded that limiting dis-
`paraging transit advertisements was not a viewpoint-
`based “attempt[] to give one group an advantage over
`another in the marketplace of ideas.” Ridley v. Massa-
`chusetts Bay Transp. Auth., 390 F.3d 65, 91 (1st Cir.
`2004); see American Freedom Def. Initiative v. Massa-
`chusetts Bay Transp. Auth., 781 F.3d 571, 574 (1st Cir.
`2015), cert. denied, 136 S. Ct. 793 (2016).
`Respondent notes (Br. 17-18) that Section 1052(a) is
`not limited to racial epithets; that the Court in R.A.V.
`did not actually rule on the constitutionality of a ban on
`racial epithets; and that libel and fighting words are un-
`protected speech. But respondent offers no affirmative
`reason that treating disparaging trademarks as cate-
`gorically unregistrable should be equated, for First
`Amendment purposes, with attempts to suppress disfa-
`vored messages. Instead, it is similar to the FCC’s de-
`cision to limit the use of profanities on the radio, see
`FCC v. Pacifica Found., 438 U.S. 726, 743-745 (1978),
`or to Vermont’s decision not to allow scatological terms
`on vanity license plates, Perry v. McDonald, 280 F.3d
`
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`12
`
`159, 170 (2d Cir. 2011), both of which were viewpoint-
`neutral. Any concern that Section 1052(a) might “drive
`certain ideas or viewpoints from the marketplace,” Si-
`mon & Schuster, 502 U.S. at 116, is further alleviated
`by the fact that the disparagement provision does not
`limit speech at all, but simply renders unavailable the
`additional benefits that attend federal registration.
`See Gov’t Br. 43-44.
`C. The Trademark-Registration Program Is Facially Con-
`stitutional, Like Other Government Programs This
`Court Has Upheld
`1. This Court has frequently upheld eligibility crite-
`ria for government programs that have the effect of en-
`couraging speech, on the theory that the government
`has broad (though not unlimited) authority to “selec-
`tively fund a program to encourage certain activities it
`believes to be in the public interest.” Rust, 500 U.S. at
`193; see Gov’t Br. 14-19. Because “a legislature’s deci-
`sion not to subsidize the exercise of a fundamental right
`does not infringe the right,” the Court has rejected the
`view that “strict scrutiny applies whenever Congress
`subsidizes some speech, but not all speech.” Regan v.
`Taxation With Representation of Wash., 461 U.S. 540,
`548-549 (1983).
`Respondent argues (Br. 25-31) that this principle is
`inapposite here because the present case does not fit
`neatly within any one of the doctrinal boxes this Court’s
`precedents have identified. But the Court has treated
`those doctrinal categories as reflecting an overarching
`principle that the government ordinarily has no obliga-
`tion to assist private speakers. Thus, the Court has re-
`lied on a decision involving direct financial benefits in a
`case about a different form of government assistance
`(the provision of a payroll-deduction mechanism), see
`
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`13
`
`Ysursa, 555 U.S. at 358 (citing Regan, 461 U.S. at 549);
`and on a financial-subsidy decision in a case implicating
`government-speech interests, see Walker, 135 S. Ct. at
`2246 (citing Rust, 500 U.S. at 194). And while the Court
`initially described Rust as a case involving “subsidies,”
`500 U.S. at 192, it later characterized Rust as also im-
`plicating “governmental speech,” Legal Servs. Corp. v.
`Velazquez, 531 U.S. 533, 541 (2001)—underscoring that
`fundamental principles, not neat doctrinal boxes, drive
`the Court’s analysis.
`When the Court has analyzed a new government
`program that selectively assists speech, it has begun
`with the overarching principle that failure to assist
`speech does not abridge speech and has then evaluated
`the challenged program on its own terms. See Gov’t
`Br. 15-19. Deciding this case in the government’s favor
`thus does not require breaking new doctrinal ground or
`addressing any other programs; it requires applying
`well-settled principles to the particular program at is-
`sue.3
`
`3 Respondent’s reliance (Br. 39-40) on United States v. Stevens,
`559 U.S. 460 (2010), is misplaced. The law at issue in Stevens did
`not simply deny government assistance; it “criminalize[d] the com-
`mercial creation, sale, or possession of certain depictions of animal
`cruelty.” Id. at 464 (citing 18 U.S.C. 48). In holding the statute un-
`constitutionally overbroad, see id. at 481-482, the Court disavowed
`any “freewheeling authority to declare new categories of speech
`outside the scope of the First Amendment,” id. at 472. This case, by
`contrast, does not involve any prohibition on speech; and the gov-
`ernment does not contend that respondent’s use of the term THE
`SLANTS to identify his band is “outside the scope of the First
`Amendment.” Rather, our argument is that, under “the general
`rule that the Government may choose not to subsidize speech,”
`Rust, 500 U.S. at 200, respondent’s speech is not “abridge[d]” by the
`government’s refusal to assist it, Ysursa, 555 U.S. at 355 (citation
`omitted). Nothing in Stevens suggests that this fundamental First
`
`
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`14
`
`2. The federal trademark-registration criteria are
`like other program criteria that have satisfied First
`Amendment scrutiny. The registration program de-
`fines eligibility for a form of government assistance;
`the eligibility criteria further Congress’s policy prefer-
`ences; and the government assistance depends only on
`the nature of the trademark the applicant seeks to reg-
`ister, not on the speech or other activities of mark own-
`ers outside the program. See Gov’t Br. 35-37.
`Respondent offers no sound basis for distinguishing
`the trademark-registration program from others this
`Court has upheld. A government program need not in-
`volve an “actual disbursement[] of funds” or its “equiv-
`alent” (Resp. Br. 26) to be analyzed as a form of selec-
`tive assistance of speech: Walker, Ysursa, and Daven-
`port v. Washington Education Association, 551 U.S.
`177 (2007), all involved forms of assistance other than
`the direct provision of government money. See Gov’t
`Br. 41. And the benefits that trademark registrants ob-
`tain follow directly from the resources the government
`invests in administering the program. See p. 7, su