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` IN THE SUPREME COURT OF THE UNITED STATES
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` MICHELLE K. LEE, DIRECTOR, :
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` Petitioner : No. 15-1293
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` SIMON SHIAO TAM,
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` Respondent. :
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` Washington, D.C.
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` Wednesday, January 18, 2017
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` The above-entitled matter came on for oral
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` argument before the Supreme Court of the United States
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`APPEARANCES:
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` MALCOLM L. STEWART, ESQ., Deputy Solicitor General,
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` JOHN C. CONNELL, ESQ., Haddonfield, N.J.; on behalf
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` of the Respondent.
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`Alderson Reporting Company
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` C O N T E N T S
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` ORAL ARGUMENT OF
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` MALCOLM L. STEWART, ESQ.
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` On behalf of the Petitioner
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` On behalf of the Respondent
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` On behalf of the Petitioner
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` P R O C E E D I N G S
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` (10:07 a.m.)
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` CHIEF JUSTICE ROBERTS: We'll hear argument
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` first this morning in Case No. 15-1293, Lee v. Tam.
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` Mr. Stewart.
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` ORAL ARGUMENT OF MALCOLM L. STEWART
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` ON BEHALF OF THE PETITIONER
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` MR. STEWART: Thank you, Mr. Chief Justice,
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` and may it please the Court:
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` The statutory provision at issue in this
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` case, 15 U.S.C. 1052(a), prohibits the registration of
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` any mark that may disparage persons, institutions,
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` beliefs, or national symbols. Based on that provision,
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` the PTO denied Respondent's application to register The
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` Slants as a service mark for his band. The PTO's ruling
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` did not limit Respondent's ability to use the mark in
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` commerce, or otherwise to engage in expression or debate
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` on any subject he wishes.
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` Because Section 52(a)'s disparagement
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` provision places a reasonable limit on access to a
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` government program rather than a restriction on speech,
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` it does not violate the First Amendment.
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` JUSTICE KENNEDY: Is copyright -- copyright
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` a government program?
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` MR. STEWART: I think we would say copyright
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` and copyright registration is a government program, but
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` values to the incentivization of free expression.
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` JUSTICE KENNEDY: But part of that, seems to
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` me, to ignore the fact that we have a culture in which
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` we have tee shirts and logos and rock bands and so forth
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` that are expressing a -- a point of view. They are
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` using the -- the market to express views.
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` MR. STEWART: I mean, certainly --
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` JUSTICE KENNEDY: But I was -- disparagement
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` a powerful, important government program.
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` about that.
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` MR. STEWART: Let me say two or three things
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` First, there's no question that through
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` their music, The Slants are expressing views on social
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` and political issues. They have a First Amendment right
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` to do that. They're able to copyright their songs and
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` If Congress attempted to prohibit them,
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` registration on their music, that would pose a much more
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` JUSTICE ALITO: Substantial First Amendment
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` issue. I was somewhat surprised that in your briefs you
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` couldn't bring yourself to say that the government could
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` not deny copyright protection to objectionable material.
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` Are you going to say that?
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` MR. STEWART: I -- I hate to give away any
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` but I'll come as close as I possibly can to say, yes, we
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` would give that away. It would be unconstitutional to
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` But I -- I would also say, even in the
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` copyright context, we would distinguish between limits
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` person can't copyright new words or short phrases. Even
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` you can't get copyright protection.
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` We would certainly defend the
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` of copyrightable material, and if there were a First
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` Amendment challenge brought, we would argue that there's
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` the four-word phrase, or you can't write it in print.
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` But there's --
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` JUSTICE GINSBURG: There's a significant
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` difference between the copyright regime, you can't sue
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` for copyright infringement unless you register. Isn't
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` MR. STEWART: You have to have filed an
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` infringement suit. And so the -- the statute -- I
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` believe it's 17 U.S.C. 411(a) indicates that if you
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` that application has been denied, you can still bring
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` your copyright suit, and the register is entitled to be
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` heard on questions of copyrightability.
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` JUSTICE GINSBURG: There's no restriction
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` MR. STEWART: That's correct. You can file
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` the trademark laws either for infringement or of an
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` CHIEF JUSTICE ROBERTS: Counsel, I'm -- I'm
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` we run a program that doesn't include disparaging
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` doesn't seem to me to advance the argument very much.
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` MR. STEWART: Well, I think the
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` disparagement provision is only one of a number of
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` restrictions on copy -- I'm sorry, on trademark
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` itself. For example, words -- marks that are merely
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` else was previously using the mark in commerce, those
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` can't be registered either.
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` JUSTICE BREYER: Well, each of those -- and
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` purpose of a trademark, which is to identify the source
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` don't know all, but I know many of them, and I can
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` relate that. You relate this.
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` MR. STEWART: I think Congress evidently
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` concluded that disparaging trademarks would hinder
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` commercial development in the following way: A
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` JUSTICE BREYER: Right.
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` MR. STEWART: Its function is to tell the
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` public from whom did the goods or services emanate. It
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` commercial actors will attempt to devise trademarks that
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` not only can identify them as the source, but that also
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` are intended to convey positive messages about their
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` products. For example, if you see the -- the name Jiffy
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` mark is -- is sort of a dual-purpose communication. It
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` both identifies the source and it serves as a kind of
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` amicus briefs on our side point out, that when a person
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` common discourse, that it will distract the consumer
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` from the intended purpose of the trademark qua
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` Congress says, as long as you are promoting your own
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` product, saying nice things about people, we'll put up
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` with that level of distraction.
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` JUSTICE GINSBURG: But suppose the -- the
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` application here had been for Slants Are Superior. So
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` that's a complimentary term. Would that then be -- take
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` it outside the disparagement bar?
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` MR. STEWART: I -- I think that under the
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` PTO's historical practice, probably not. I believe --
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` and I think the same thing would be true of other racial
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` epithets, terms that have long been used as slurs for a
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` CHIEF JUSTICE ROBERTS: Why isn't that
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` disparaging of everyone else? Slants Are Superior,
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` well, superior to whom?
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` MR. STEWART: I -- I think the basis for the
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` this -- that case, is that the term "Slants," in and of
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` itself, when used in relation to Asian-Americans --
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` JUSTICE BREYER: I have it. Right. I want
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` question I have for you.
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` The only question I have for you is what
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` purpose related to trademarks objective does this serve?
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` And I want to be sure I have your answer. Your answer
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` so far was, it prevents the -- or it helps to prevent
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` basic message, which is, I made this product.
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` I take it that's your answer. And if that's
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` your answer, I will -- my follow-up question to that
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` would be, I can think probably, and with my law clerks,
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` perhaps 50,000 examples of instances where the space the
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` trademark provides is used for very distracting
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` issue, or disparagement. And what business does
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` Congress have picking out this one, but letting all the
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` MR. STEWART: Well, I think what -- I think
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` of -- for prohibiting registration of different kinds of
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` disparaging trademarks would depend to some extent on
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` who is being disparaged. That is, in the --
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` JUSTICE BREYER: It's not disparaging; your
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` answer was distracting. And -- and -- and one of the
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` great things of 99 percent of all trademarks is they
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` of advertising. So if the answer is distracting, not --
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` you didn't provide an answer to disparagement. You're
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` answer is why disparagement was they don't want
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` distraction from the message.
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` MR. STEWART: They don't want -- they don't
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` want distraction and they don't want particular type --
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` types of distraction. That is, when we're dealing --
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` JUSTICE BREYER: But that's where I have the
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` question. What relation is there to a particular type
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` of distraction, disparagement, and any purpose of a
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` MR. STEWART: The -- the type -- the type of
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` distraction that may be caused by a disparaging
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` of disparagement at issue. That is, in the case of
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` racial epithets, these words are known to cause harm, to
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` cause controversy. They -- in some sense they may no --
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` they may be no more distracting than a positive message,
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` but Congress can determine this is the wrong kind of
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`distraction.
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` JUSTICE KAGAN: Mr. Stewart, please.
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` MR. STEWART: Another type would be a
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` competing soft drink manufacturer who wants to register
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` the trademark Coke Stinks, who wants to identify his own
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` product with a sentiment that is antithetical to one of
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` not to encourage that form of commerce. We can prefer
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` to -- that -- that commercial actors will promote their
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` own products rather than disparage others. Obviously,
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` under the First Amendment, we couldn't prevent that kind
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` of criticism, but we can decline to encourage it.
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` I'm sorry.
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` JUSTICE KAGAN: Assume government speech
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` So why isn't this doing exactly that?
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` MR. STEWART: Because it -- it precludes
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` disparagement of all and it casts a wide net. It --
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` JUSTICE KAGAN: Yes. Well, that's
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` Democrats and Republicans alike, and so forth and so on,
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` but it makes a very important distinction, which is that
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` mark that expressed the idea that all politicians are
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` though I could get a mark saying that all politicians
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` are virtuous, or that all Democrats are virtuous.
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` Either way, it doesn't matter. You see the point.
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` The point is that I can say good things
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` about something, but I can't say bad things about
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` something. And I would have thought that that was a
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` fairly classic case of viewpoint discrimination.
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` MR. STEWART: Well, as we pointed out in our
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` brief, laws like libel laws have -- have not
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` historically been treated as discriminating based on
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` viewpoint, even though they --
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` JUSTICE KAGAN: Well, that's libelism, one
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` of our historically different, but very distinct
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` categories. And you don't make the claim that this
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` falls into a category of low value speech in the way
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` that libel laws and the way that defamation does or
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` fighting words or something like that. And you're not
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` looking to create a new category.
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` So in that case, it seems that the
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` viewpoint-based ban applies, and -- and this -- as I
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` said, I would be interested to hear your answer of why
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` the example that I stated is not viewpoint-based. It
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` says you can say something bad about -- you can say
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` something good about somebody, but not something bad
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` MR. STEWART: Well, certainly if you singled
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` out a particular category of people like political
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` officials and say -- said you can't say anything bad
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` about any of them, but you can say all the good things
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` you want, I think that would be viewpoint-based, because
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` it would be protected a discrete group of people.
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` Let me just give a -- a couple of other
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` JUSTICE KAGAN: But why isn't that this?
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` JUSTICE KENNEDY: But -- but if you didn't
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`answers.
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` limit it, if you -- if you said you can't say anything
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` bad about anybody any time, that's okay?
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` MR. STEWART: Again, it's -- again, we're
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` not saying you can't say anything bad. We're saying we
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` don't register your trademark if it is disparaging.
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` Certainly --
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` JUSTICE KAGAN: No, no, no. That's -- it --
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` as I said, even in a government program, even assuming
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` that this is not just a classic speech restriction,
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` you're still subject to the constraint that you can't
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` discriminate on -- on the basis of viewpoint.
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` MR. STEWART: Well, in -- in Boos v. Barry,
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` it's -- it's not a majority opinion, but the Court there
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` was confronted with a law that made it illegal to -- I
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` intended to bring the foreign government into contempt
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` sweeping too broadly, but at least the -- the plurality
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` would have held that it was not viewpoint-based because
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` it applied to all foreign embassies. It didn't turn on
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` the nature of the criticism.
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` Another example I would give, and it's a
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` hypothetical example, but at least I have a strong
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` instinct as to how the -- the case should be decided.
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` Suppose at a public university the -- the school set
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` aside a particular room where students could post
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` messages on topics that were of interest or concern to
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` them as a way of promoting debate in a
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` nonconfrontational way, and the school said, just two
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` ground rules: No racial epithets and no personal
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` attacks on any other members of the school community.
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` It -- it would seem extraordinary to say
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` that's a viewpoint-based distinction that can't stand
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` because you're allowed to say complimentary things about
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` your fellow students --
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` JUSTICE KENNEDY: So -- so the government is
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` the omnipresent schoolteacher? I mean, is that what
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` MR. STEWART: No.
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` JUSTICE KENNEDY: The government's a
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`MR. STEWART: No. Again, that analysis
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`would apply only if the public school was setting aside
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`a room in its own facility. Clearly, if the government
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`attempted more broadly to restrict disparaging speech by
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` students or others rather than simply to limit the terms
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` under which a forum for communication could be made
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` available, that would involve entirely different
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` questions. That's why the plurality in Boos v. Barry
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` would have found the law unconstitutional even though
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` they found it not to be viewpoint-based.
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` CHIEF JUSTICE ROBERTS: But one distinction
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` is the scope of the government program. If you're
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` talking about a particular discussion venue at a -- at a
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` about the entire trademark program, it seems to me to be
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` MR. STEWART: Well, the -- the trademark
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` is, the Lanham Act defines trademark and service mark
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` purely by reference to their source identification
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`And I think it's -- to -- to get back to
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`copyright for just a second, I think it's at least
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`noteworthy that everyone would recognize that Mr. Tam is
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`not entitled to a copyright on The Slants. The
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`copyright office doesn't register short phrases. Two
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`words is certainly short, especially when one of them --
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` not because of the content or the viewpoint expressed,
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` it's just it's a short phrase, and any short phrase
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` would be no good. This is -- this is -- you can't say
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` Slants because the PTO thinks that's a bad word. Does
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` it not count at all that everyone knows that The Slants
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` is using this term not at all to disparage, but simply
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` to describe?
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` MR. STEWART: I think --
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` JUSTICE GINSBURG: It takes the sting out of
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` MR. STEWART: Well, the trademark examining
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` the word.
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` attorney went through this in a lot of detail. And the
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` trademark examiner acknowledged that Mr. Tam's sincere
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` intent appeared to be to reclaim the word, to use it as
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`1 2 3 4 5 6 7 8 9
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` a symbol of Asian-American pride rather than to use it
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` as a slur. He -- he also found a lot of evidence in
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` form of Internet commentary to the effect that many
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` Asian-Americans, even those who recognized that this was
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` Mr. Tam's intent, still found the use of the word as a
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` band name offensive.
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` But the point I was trying to make about
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` copyright is, is not that copyright protection would be
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` denied on the ground of disparagement. You're right, it
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` would be denied because it's a short phrase and not even
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` an original phrase. But copyright is kind of the branch
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`Alderson Reporting Company
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`

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` Official - Subject to Final Review
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`18
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` of intellectual property law that is specifically
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` intended to foster free expression on matters of
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` cultural and political, among other, significance.
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` JUSTICE ALITO: Do you deny that trademarks
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` are used for expressive purposes?
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` MR. STEWART: I don't deny that trademarks
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` are used for expressive purposes. As I was saying
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` earlier, I think many commercial actors will pick a mark
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` that will not only serve as a