No. 15-1293
`
`
`
`IN THE
`pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=
`_______________
`MICHELLE K. LEE,
`
`v.
`
`SIMON SHIAO TAM,
`
`Petitioner,
`
`Respondent.
`
`_______________
`On Writ Of Certiorari To The
`United States Court Of Appeals
`For The Federal Circuit
`_______________
`BRIEF OF AMICUS CURIAE THE CHAMBER OF
`COMMERCE OF THE UNITED STATES OF
`AMERICA IN SUPPORT OF RESPONDENT
`_______________
`EUGENE SCALIA
` Counsel of Record
`AMIR C. TAYRANI
`MICHAEL R. HUSTON
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, D.C. 20036
`(202) 955-8500
`escalia@gibsondunn.com
`
`LILY FU CLAFFEE
`KATE COMERFORD TODD
`WARREN POSTMAN
`U.S. CHAMBER LITIGATION
`CENTER
`1615 H Street, N.W.
`Washington, D.C. 20062
`(202) 463-5337
`
`
`
`Counsel for Amicus Curiae
`
`
`
`
`
`IN THE
`pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=
`_______________
`MICHELLE K. LEE,
`
`v.
`
`SIMON SHIAO TAM,
`
`Petitioner,
`
`Respondent.
`
`_______________
`On Writ Of Certiorari To The
`United States Court Of Appeals
`For The Federal Circuit
`_______________
`BRIEF OF AMICUS CURIAE THE CHAMBER OF
`COMMERCE OF THE UNITED STATES OF
`AMERICA IN SUPPORT OF RESPONDENT
`_______________
`EUGENE SCALIA
` Counsel of Record
`AMIR C. TAYRANI
`MICHAEL R. HUSTON
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, D.C. 20036
`(202) 955-8500
`escalia@gibsondunn.com
`
`LILY FU CLAFFEE
`KATE COMERFORD TODD
`WARREN POSTMAN
`U.S. CHAMBER LITIGATION
`CENTER
`1615 H Street, N.W.
`Washington, D.C. 20062
`(202) 463-5337
`
`
`
`Counsel for Amicus Curiae
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`INTEREST OF AMICUS CURIAE ............................ 1
`SUMMARY OF ARGUMENT ..................................... 2
`ARGUMENT ............................................................... 4
`I. SECTION 2(a)’S ANTI-DISPARAGEMENT
`PROVISION IS A VIEWPOINT-BASED
`RESTRICTION ON EXPRESSION ......................... 4
`II. SECTION 2(a)’S ANTI-DISPARAGEMENT
`PROVISION IS NOT A PERMISSIBLE
`REGULATION OF “COMMERCIAL SPEECH” ........ 6
`A. “Commercial Speech” Is A Narrow
`Category Limited To Speech Proposing
`A Commercial Transaction ...................... 7
`B. The Government May Not Engage In
`Viewpoint Discrimination Simply
`Because The Speaker Has An Economic
`Interest In A Message .............................. 9
`C. Even If Trademarks Are Commercial
`Speech, Section 2(a)’s Anti-
`Disparagement Provision Is Still
`Subject To Heightened Judicial
`Scrutiny .................................................. 16
`III. SECTION 2(a)’S ANTI-DISPARAGEMENT
`PROVISION IS UNCONSTITUTIONAL UNDER
`ANY STANDARD OF SCRUTINY ........................ 17
`A. The Trademark Registration Program
`Is Not A Government Subsidy ............... 18
`B. Registration Is Critically Important To
`Trademark Holders ................................ 20
`CONCLUSION .......................................................... 25
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Agency for Int’l Dev. v. All. for Open Soc’y
`Int’l, Inc., 133 S. Ct. 2321 (2013) ......................... 19
`Ashcroft v. Am. Civil Liberties Union,
`535 U.S. 564 (2002) ................................................ 5
`B & B Hardware, Inc. v. Hargis Indus.,
`Inc., 135 S. Ct. 1293 (2015) ...................... 12, 14, 19
`Bd. of Trs. of State Univ. of N.Y. v. Fox,
`492 U.S. 469 (1989) .............................................. 15
`Bigelow v. Virginia,
`421 U.S. 809 (1975) .............................................. 14
`Brown v. Entm’t Merch. Ass’n,
`564 U.S. 786 (2011) ................................................ 4
`Cent. Hudson Gas & Elec. Corp. v. Pub.
`Serv. Comm’n of N.Y.,
`447 U.S. 557 (1980) ...................... 4, 5, 7, 11, 13, 16
`City of Cincinnati v. Discovery Network,
`Inc., 507 U.S. 410 (1993) ...................................... 13
`Cox v. Louisiana,
`379 U.S. 536 (1965) .............................................. 22
`Edwards v. South Carolina,
`372 U.S. 229 (1963) .............................................. 22
`Friedman v. Rogers,
`440 U.S. 1 (1979) ............................................ 14, 15
`Hurley v. Irish-Am. Gay, Lesbian &
`Bisexual Grp. of Boston,
`515 U.S. 557 (1995) ................................................ 5
`
`
`
`iii
`
`N.Y. Times Co. v. Sullivan,
`376 U.S. 254 (1964) .............................................. 14
`Nat’l Endowment for the Arts v. Finley,
`524 U.S. 569 (1998) .......................................... 6, 18
`Near v. Minnesota,
`283 U.S. 697 (1931) ................................................ 8
`Ohralik v. Ohio State Bar Ass’n,
`436 U.S. 447 (1978) ................................................ 7
`Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n
`of Cal., 475 U.S. 1 (1986) ....................................... 5
`Regan v. Taxation Without Representation
`of Wash., 461 U.S. 540 (1983) .............................. 18
`Rust v. Sullivan,
`500 U.S. 173 (1991) .............................................. 18
`San Francisco Arts & Athletics, Inc. v.
`United States Olympic Comm.,
`483 U.S. 522 (1987) .................................... 7, 14, 15
`Simon & Schuster, Inc. v. Members of the
`N.Y. State Crime Victims Bd.,
`502 U.S. 105 (1991) .............................................. 21
`Snyder v. Phelps,
`562 U.S. 443 (2011) ................................................ 8
`Sorrell v. IMS Health Inc.,
`564 U.S. 552 (2011) ..................................................
` .................................. 2, 3, 5, 6, 9, 13, 15, 17, 18, 21
`
`United States v. Am. Library Ass’n,
`539 U.S. 194 (2003) .............................................. 19
`United States v. Playboy Entm’t Grp., Inc.,
`529 U.S. 803 (2000) .......................................... 5, 21
`
`
`
`iv
`
`Va. State Bd. of Pharmacy v. Va. Citizens
`Consumer Council, Inc.,
`425 U.S. 748 (1976) ............................................ 3, 7
`Walker v. Texas Div., Sons of Confederate
`Veterans, Inc., 135 S. Ct. 2239 (2015) ................. 22
`Ward v. Rock Against Racism,
`491 U.S. 781 (1989) .......................................... 5, 17
`Statutes
`15 U.S.C. § 1052(a) ...................................................... 2
`Other Authorities
`American flag banned by Calif. university
`students to create ‘inclusive’ atmosphere,
`The Washington Times (Mar. 7, 2015) ................ 24
`Google Co., Our history in depth ............................... 11
`PepsiCo, The Pepsi-Cola Story .................................. 10
`Someone wrote ‘Trump 2016’ on Emory’s
`campus in chalk. Some students said
`they no longer feel safe,
`The Washington Post (Mar. 24, 2016). ................ 24
`
`
`
`
`
`
`
`
`
`BRIEF OF AMICUS CURIAE THE CHAMBER
`OF COMMERCE OF THE UNITED STATES OF
`AMERICA IN SUPPORT OF RESPONDENT
`
`INTEREST OF AMICUS CURIAE1
`The Chamber of Commerce of the United States of
`America (the “Chamber”) is the world’s largest busi-
`ness federation. It represents 300,000 direct members
`and indirectly represents the interests of more than 3
`million companies and professional organizations of
`every size, in every industry sector, and from every
`region of the country. An important function of the
`Chamber is to represent the interests of its members
`in matters before Congress, the Executive Branch,
`and the courts. To that end, the Chamber regularly
`files amicus curiae briefs in cases that raise issues of
`concern to the nation’s business community.
`The Chamber is participating in this case because
`it is deeply concerned about the potential diminution
`of First Amendment rights that could result if the
`Court were to condone viewpoint-based regulation of
`speech when the speaker is engaged in commercial ac-
`tivity. Although this Court has held that some regu-
`lations of “commercial speech” are subject to interme-
`diate rather than strict First Amendment scrutiny, it
`has also made clear that the category of “commercial
`speech” is narrow. And the Court has never applied
`
`
` 1 Pursuant to this Court’s Rule 37.6, amicus curiae states that
`no counsel for any party authored this brief in whole or in part,
`and no entity or person, aside from amicus curiae, its members,
`and its counsel, made any monetary contribution toward the
`brief’s preparation or submission. All parties have consented in
`writing to the filing of this brief.
`
`
`
`
`
`2
`
`intermediate scrutiny to allow the Government to re-
`strict speech because it finds the viewpoint expressed
`to be offensive.
`The Chamber seeks to underscore that the Gov-
`ernment violates the First Amendment whenever it
`withholds important legal protections based on the
`viewpoint expressed by a speaker. Denial of federal
`trademark registration, and the attendant loss of pro-
`cedural protections against infringement, confusion,
`and usurpation, seriously impairs the right of a trade-
`mark holder to use that mark as a means of conveying
`its message. This viewpoint-based burden on speech
`directly implicates the core protections of the First
`Amendment and cannot survive any level of constitu-
`tional scrutiny.
`SUMMARY OF ARGUMENT
`This Court has long condemned viewpoint-based
`regulation of speech, whether the setting is political,
`cultural, or commercial. See Sorrell v. IMS Health
`Inc., 564 U.S. 552, 566 (2011). The anti-disparage-
`ment provision of Section 2(a) of the Lanham Act, 15
`U.S.C. § 1052(a), violates this longstanding prohibi-
`tion on viewpoint-based regulation and burdens the
`fundamental freedom of expression that rests at the
`heart of the First Amendment.
`Section
`(2)(a)’s anti-disparagement provision
`should be subject to strict scrutiny because it regu-
`lates trademarks that involve more than commercial
`communications and that therefore cannot be treated
`simply as “commercial speech.” As the record in this
`case makes clear, trademark holders use their names
`and marks not solely for commercial purposes, but to
`express something about themselves, to contribute to
`the marketplace of ideas, and to speak on matters of
`public concern. These protected expressions are not
`
`
`
`3
`
`subject to reduced constitutional protection just be-
`cause the speakers make them in connection with
`goods they offer for sale.
`Affording full constitutional protection to trade-
`marks that the Government deems “disparaging” is
`the only conclusion consistent with this Court’s prec-
`edent, which describes the category of “commercial”
`speech in narrow terms as speech that does “no more
`than propose a commercial transaction.” Va. State
`Bd. of Pharmacy v. Va. Citizens Consumer Council,
`Inc., 425 U.S. 748, 762 (1976) (emphasis added). Mr.
`Tam, like many other trademark holders, seeks to ex-
`press a unique message, not merely to advertise goods
`and services. And when the Government denies
`trademark registration on the basis of Section 2(a)’s
`anti-disparagement provision, it does so because of
`the expressive content of the holder’s speech, not be-
`cause of the commercial purposes for using the mark.
`Applying the commercial-speech doctrine in this
`case would therefore expand that classification dra-
`matically and result in a corresponding reduction in
`the amount of speech that is entitled to full First
`Amendment protection. Moreover, even if trade-
`marks could properly be treated as commercial
`speech, Section 2(a)’s anti-disparagement provision
`would still be subject to “heightened judicial scrutiny”
`because it is a viewpoint-based restriction. See Sor-
`rell, 564 U.S. at 565.
`The Government cannot evade First Amendment
`scrutiny of the anti-disparagement provision by char-
`acterizing the federal trademark registration system
`as a subsidy program. While the Government has
`broad discretion in disbursing funds to beneficiaries
`or granting tax exemptions, trademark registration
`does not subsidize trademark holders but rather helps
`
`
`
`4
`
`maintain the channels of commerce by providing a
`uniform, nationwide registration system.
`Ultimately, whether Section 2(a) is examined un-
`der strict scrutiny or heightened scrutiny (or even un-
`der the commercial-speech standard of Central Hud-
`son Gas & Electric Corp. v. Public Service Commission
`of New York, 447 U.S. 557, 566 (1980)), the Govern-
`ment cannot meet its burden to justify the speech re-
`strictions imposed by the anti-disparagement provi-
`sion. The statute imposes a severe burden on the First
`Amendment rights of trademark holders by denying
`their “disparaging” messages the procedural and prac-
`tical protections that accompany federal registration.
`Those protections are enormously important, espe-
`cially to a small business. And no one could seriously
`regard a trademark as government speech, or even
`government-condoned speech, so the Government has
`no legitimate interest in disassociating itself from
`“disparaging” trademarks.
`The Federal Circuit’s judgment invalidating Sec-
`tion 2(a)’s anti-disparagement provision as an uncon-
`stitutional restriction on speech should be affirmed.
`ARGUMENT
`I. SECTION 2(a)’S ANTI-DISPARAGEMENT
`PROVISION IS A VIEWPOINT-BASED
`RESTRICTION ON EXPRESSION.
`The First Amendment bars the Government from
`attempting to regulate the marketplace of ideas.
`“[T]he most basic of [First Amendment] principles is
`this: ‘As a general matter, government has no power
`to restrict expression because of its message, its
`ideas, its subject matter, or its content.’” Brown v.
`Entm’t Merch. Ass’n, 564 U.S. 786, 790–91 (2011)
`
`
`
`5
`
`(quoting Ashcroft v. Am. Civil Liberties Union, 535
`U.S. 564, 573 (2002)).
`This principle applies whether the speaker is an
`individual or a corporation, and whether he seeks po-
`litical change, social dialogue, or commercial gain.
`See Sorrell v. IMS Health Inc., 564 U.S. 552, 566
`(2011). “The First Amendment requires heightened
`judicial scrutiny ‘whenever the government creates a
`regulation of speech because of disagreement with the
`message it conveys,’” and “[c]ommercial speech is no
`exception.” Id. (quoting Ward v. Rock Against Racism,
`491 U.S. 781, 791 (1989)). The prohibition on view-
`point discrimination applies both when the Govern-
`ment attempts to prohibit the speech of “business cor-
`porations” and when the Government attempts to
`compel it. Hurley v. Irish-Am. Gay, Lesbian & Bisex-
`ual Grp. of Boston, 515 U.S. 557, 573–74 (1995); see
`also Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of
`Cal., 475 U.S. 1, 16 (1986) (plurality op.) (“For corpo-
`rations as for individuals, the choice to speak includes
`within it the choice of what not to say.”). And the pro-
`hibition applies whether the Government directly
`bans particular speech or indirectly burdens it. See
`United States v. Playboy Entm’t Grp., Inc., 529 U.S.
`803, 812 (2000) (“Government’s content-based bur-
`dens must satisfy the same rigorous scrutiny as its
`content-based bans.”).
`In cases where this Court has approved re-
`strictions on commercial speech, it has done so only
`because the rules directly advanced a substantial gov-
`ernment interest, and only where the Government did
`not target speech based on its viewpoint. See Cent.
`Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of
`N.Y., 447 U.S. 557, 556 (1980). These commercial-
`speech restrictions are permissible only because—and
`only so long as—they do not attempt to “burden the
`
`
`
`6
`
`speech of others in order to tilt public debate in a pre-
`ferred direction.” Sorrell, 564 U.S. at 578–79. Simi-
`larly, where the Government creates a subsidy pro-
`gram, it may enact certain content-based conditions
`on participation in order to further the purposes of the
`program, so long as the Government does not “lever-
`age its power to award subsidies on the basis of sub-
`jective criteria into a penalty on disfavored view-
`points.” Nat’l Endowment for the Arts v. Finley, 524
`U.S. 569, 585, 587 (1998).
`Section 2(a)’s anti-disparagement provision fails
`the core test of the First Amendment: The statute im-
`poses burdens on speech based on the Government’s
`determination that the viewpoint expressed is offen-
`sive. As the Government acknowledges, the anti-
`disparagement provision was enacted with the ex-
`press purpose of disincentivizing the selection of
`trademarks that—in the Government’s view—are
`“disparaging” by denying federal recognition of such
`marks and thereby “diminish[ing] the[ir] effective-
`ness.” Sorrell, 564 U.S. at 565; see also Br. of United
`States 28.
`Although this viewpoint-based restriction on
`speech should be subject to strict scrutiny—or, at a
`minimum, heightened judicial scrutiny—Section 2(a)
`cannot survive any standard of First Amendment re-
`view.
`II. SECTION 2(a)’S ANTI-DISPARAGEMENT
`PROVISION IS NOT A PERMISSIBLE REGULATION
`OF “COMMERCIAL SPEECH.”
`The Government devotes only a sentence in its
`brief to justifying Section 2(a) on the basis of the more
`“limited form of First Amendment protection” that
`this Court has applied to “commercial speech.” Br. of
`
`
`
`7
`
`United States 48 (quoting San Francisco Arts & Ath-
`letics, Inc. v. United States Olympic Comm., 483 U.S.
`522, 535 (1987)). The brevity of the Government’s ar-
`gument is among the best evidence that this Court’s
`commercial-speech precedents do not apply to this
`case. But several judges on the Federal Circuit did
`argue that the constitutionality of the anti-disparage-
`ment provision should be evaluated under the com-
`mercial-speech doctrine, and they are supported by
`several of the Government’s amici in this Court.
`Those arguments are misplaced. Classifying all
`trademarks as commercial speech—including those
`that the Government finds to be “disparaging”—
`would represent a significant and unwarranted ex-
`pansion of the commercial-speech doctrine that ig-
`nores the reason for the doctrine in the first place.
`A. “Commercial Speech” Is A Narrow Cate-
`gory Limited To Speech Proposing A
`Commercial Transaction.
`The First Amendment standards that apply to
`commercial speech, see Cent. Hudson, 447 U.S. at
`562−63, are the constitutional exception, not the rule.
`As this Court has emphasized, the category of “com-
`mercial speech” is narrow. It encompasses only
`speech that does “no more than propose a commercial
`transaction,” Va. State Bd. of Pharmacy v. Va. Citi-
`zens Consumer Council, Inc., 425 U.S. 748, 762 (1976)
`(emphasis added), and that “relate[s] solely to the eco-
`nomic interests of the speaker and its audience.”
`Cent. Hudson, 447 U.S. at 561 (emphasis added); see
`also Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455
`(1978) (commercial speech is “[e]xpression concerning
`purely commercial transactions”). The commercial-
`speech doctrine is manifestly inapplicable to most
`trademarks.
`
`
`
`8
`
`
`As an initial matter, no one seriously disputes
`that Mr. Tam’s message is fully protected speech on a
`matter of public concern: By labeling himself and his
`bandmates “Slants,” he seeks to make a statement
`about racial and ethnic identity, and to marginalize
`racism by—as he puts it—“reclaiming” a slur. He ad-
`vocates social change and challenges perceptions of
`people of Asian descent. See Pet. App. 10a, 24a.
`Mr. Tam could not achieve his goals as effectively
`using a similar mark that would fall outside Section
`2(a)’s prohibition on registering “disparaging” marks.
`Mr. Tam’s mark is designed to provoke and challenge
`his audience in a very particular way that could not
`be replicated by another mark the Government con-
`siders less objectionable. Just as authors and artists
`make particular choices about words, imagery, or de-
`sign in order to convey a specific meaning—and some-
`times in order to disquiet or shock their audience—
`trademark holders choose the words and symbols by
`which they identify themselves in order to convey par-
`ticular messages or promote certain values.
`If Mr. Tam wanted to stand with his bandmates
`on a sidewalk under a banner reading “The Slants” in
`order to provoke a conversation about racial identity,
`any government restriction on the content of that ex-
`pression would be subject to strict scrutiny. Cf.
`Snyder v. Phelps, 562 U.S. 443, 457–59 (2011) (apply-
`ing strict scrutiny and overturning a tort judgment
`based on the viewpoint expressed in speech on mat-
`ters of public concern adjacent to public streets). Like-
`wise, if Mr. Tam chose to publish his views on racial
`stereotypes as a pamphlet authored by “The Slants,”
`the pamphlet would indisputably receive full First
`Amendment protection. Cf. Near v. Minnesota, 283
`
`
`
`9
`
`U.S. 697, 702, 721–22 (1931) (striking down an ordi-
`nance prohibiting publications that are “malicious,
`scandalous and defamatory”). Indeed, the Govern-
`ment concedes that Mr. Tam’s right to promote his
`message through his chosen medium, a dance-rock al-
`bum, is fully protected by the First Amendment. See
`Br. of United States 26.
`The Government and its amici nevertheless assert
`that, because Mr. Tam and other trademark holders
`have decided to enter the commercial realm, their oth-
`erwise-fully-protected expression should be reduced to
`the status of commercial speech. As explained below,
`that proposition finds no support in this Court’s prec-
`edent.
`B. The Government May Not Engage In
`Viewpoint Discrimination Simply Be-
`cause The Speaker Has An Economic In-
`terest In A Message.
`The First Amendment protection that attaches to
`a trademark holder’s speech is not diminished be-
`cause the speaker is both engaging in expression and
`seeking to make a profit. Judge Reyna, dissenting
`from the Federal Circuit’s opinion below, asserted
`that “commercial speech does not transform into core
`political speech with full First Amendment protec-
`tions simply because it ‘links a product to a current
`public debate.’” Pet. App. 111a. But that gets it pre-
`cisely backward: Speech with cultural, social, or po-
`litical content is not transformed into “commercial
`speech” with diminished First Amendment protec-
`tions just because the speaker disseminates her mes-
`sage in the commercial marketplace. See Sorrell, 564
`U.S. at 579 (“The commercial marketplace, like other
`spheres of our social and cultural life, provides a fo-
`rum where ideas and information flourish.”).
`
`
`
`10
`
`Mr. Tam’s use of “The Slants” goes far beyond pro-
`posing a commercial transaction to the public. He pro-
`poses instead to engage his audience in a discussion
`about racial identity and racial stereotypes, see Pet.
`App. 10a, 24a, both of which are matters of genuine
`public concern. And he is not remotely the first trade-
`mark holder to disseminate a message that trans-
`cends commerce. Section 2(a)’s anti-disparagement
`provision targets trademarks that invariably have an
`expressive purpose that goes beyond conveying purely
`commercial information. The holders of these marks
`choose them in order to distinguish themselves, and
`to convey something about who they are, what they
`do, how they do it, and what they believe.
`The trademarked names and imagery of the Na-
`tional Association for the Advancement of Colored
`People, the Human Rights Campaign, and other advo-
`cacy groups plainly communicate far more than a com-
`mercial message. And this is equally true of trade-
`marks used by for-profit businesses. Pepsi-Cola, for
`example, first adopted its iconic red, white, and blue
`color scheme for its bottles during World War II in or-
`der to express support for the troops. See PepsiCo,
`The Pepsi-Cola Story 7.2 That color scheme is still to-
`day incorporated into several of PepsiCo’s registered
`trademarks. Trademarks used by for-profit compa-
`nies can invoke the sense of a place (real or imagined),
`like the “Patagonia” clothing company or the “Atlan-
`tis” Bahamas resort. They can inspire (the San Diego
`“Chargers”), rally a community together (“DC United”
`soccer club), or boast (“Seattle’s Best Coffee,” “The ul-
`timate driving machine”). The trademarked slogans
`of Nike (“Just do it”), Apple (“Think different”), and
`
`
` 2 Available at http://www.pepsi.com/PepsiLegacy_Book.pdf.
`
`
`
`11
`
`Royal Caribbean cruise line (“Get out there”) urge lis-
`teners to adopt a certain lifestyle. And the name
`“Google” was chosen by its founders as “a play on the
`word ‘googol,’ a mathematical term for the number
`represented by the numeral 1 followed by 100 zeros,”
`in order to “reflect[ ] [the founders’] mission to organ-
`ize a seemingly infinite amount of information on the
`web.” Google Co., Our history in depth.3
`These trademarks were not created solely to pro-
`pose a commercial transaction or to generate in-
`creased revenue. They were chosen because they ex-
`pressed a company’s values and embodied its vision.
`Trademarks often play a key role in a company’s
`branding precisely because they link a product with a
`particular idea or lifestyle. In those cases, even if the
`company’s ends are predominantly commercial, its
`chosen means of expression are not.
`The Government’s disapproval of “disparaging”
`trademarks thus goes well beyond regulating “adver-
`tising,” Cent. Hudson, 447 U.S. at 563, which rests at
`the heart of the commercial-speech doctrine. In fact,
`Section 2(a)’s anti-disparagement provision is not
`about advertising at all. The Government seeks to
`discourage holders of allegedly “disparaging” trade-
`marks from calling themselves by those names and
`from using those names in any setting connected with
`their operation, not merely from including those
`names on commercial advertising.
`Nor can most trademarks be reasonably described
`as “expression related solely to the economic interests
`of the speaker and its audience.” Cent. Hudson, 447
`
`
` 3 Available at https://www.google.com/about/company/his-
`tory/.
`
`
`
`12
`
`U.S. at 561 (emphasis added). In his dissenting opin-
`ion, Judge Reyna contended that trademarks are com-
`mercial speech because they are “necessarily tools of
`commerce used with an ‘economic motive,’” and that
`the benefits of trademark registration are purely com-
`mercial because registration allows its owner to gain
`“a competitive advantage in the marketplace” where
`“the interests of both the owner and competitor are
`fundamentally commercial in nature.” Pet. App.
`111a–12a & n.1.
`This view vastly understates the expressive value
`of trademarks, for Mr. Tam specifically and for many
`of amicus’s members more broadly. Most trademark
`holders have more than a mere commercial interest in
`selecting the names by which they identify them-
`selves. And registering those names for trademark
`protection provides many “substantial” benefits to the
`holder, not all of which are economic. B & B Hard-
`ware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1310
`(2015). Among other things, registration is a prereq-
`uisite for a mark to become “incontestable,” and
`“[i]ncontestability is a powerful protection.” Id. (quot-
`ing 15 U.S.C. § 1065). Registration is also an indis-
`pensable tool to prevent others from adopting confus-
`ingly similar identifiers, which allows a speaker to ex-
`press his unique views more clearly.
`Trademark holders rely on these protections to
`ensure that their message is not undermined by imi-
`tators or detractors who might drown out or distort
`the holders’ message. Trademark registration ad-
`vances those expressive interests even if the trade-
`mark holder also relies on his trademark rights to fa-
`cilitate increased sales of products in the marketplace.
`And, of course, the financial benefits that may accom-
`pany trademark registration increase the resources a
`holder has to promote his mark and message.
`
`
`
`13
`
`Moreover, speakers generally have the same type
`of “economic interest” in registering a copyright as in
`registering a trademark: In both cases, registration
`allows the owner to gain “a competitive advantage in
`the marketplace.” Pet. App. 112a (Reyna, J., dissent-
`ing). If the bare fact of those motives sufficed to trig-
`ger the commercial-speech doctrine, then the Govern-
`ment could refuse to grant copyright protection to
`books and films it labels “disparaging.” The Govern-
`ment’s brief does not defend that extraordinary con-
`tention, see Br. of United States 47–48, and with good
`reason—it would come dangerously close to authoriz-
`ing government-imposed burdens on offensive books.
`But just as copyright applicants seek both economic
`and non-economic benefits of registration for their ex-
`pression, trademark applicants nearly always have
`more than a singular commercial motive for register-
`ing the labels they use to express themselves.
`Affording full First Amendment protection to
`trademarks that the Government finds “disparaging”
`is the only approach consistent with the reasoning
`that underlies this Court’s commercial-speech prece-
`dents. This Court has held that constitutional protec-
`tion for commercial speech derives from “the informa-
`tional function of advertising,” Cent. Hudson, 447 U.S.
`at 563, and that “‘commercial speech can be subject to
`greater governmental regulation than noncommercial
`speech’” because of “the government’s legitimate in-
`terest in protecting consumers from ‘commercial
`harms,’” Sorrell, 564 U.S. at 579 (quoting City of Cin-
`cinnati v. Discovery Network, Inc., 507 U.S. 410, 426
`(1993)).
`Section 2(a)’s anti-disparagement provision, how-
`ever, is not about improving the informational func-
`tion of advertising or protecting consumers against
`
`
`
`14
`
`commercial harms. The statutory goal of the trade-
`mark-registration program is to avoid confusion in the
`marketplace, see B & B Hardware, 135 S. Ct. at 1299,
`but barring “disparaging” trademarks has nothing to
`do with that objective. In any event, trademarks that
`the Government deems “disparaging” express the
`views and values of the holder. They are not only con-
`tributions to the commercial marketplace but also
`contributions to the marketplace of ideas, and there-
`fore warrant full constitutional protection. See Bige-
`low v. Virginia, 421 U.S. 809, 820–21 (1975) (holding
`that full First Amendment protection would apply to
`an advertisement that “‘communicated information,
`expressed opinion, recited grievances, protested
`claimed abuses, and sought financial support on be-
`half of a movement whose existence and objectives are
`matters of the highest public interest and concern’”)
`(quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 266
`(1964)).
`In his dissent below, Judge Reyna relied on Fried-
`man v. Rogers, 440 U.S. 1 (1979), and San Francisco
`Arts & Athletics, Inc. v. United States Olympic Com-
`mittee, 483 U.S. 522 (1987), but neither case supports
`his view that Section 2(a)’s anti-disparagement provi-
`sion should be examined under the commercial-speech
`doctrine. In Friedman, this Court stated that some
`trade-name users, like the plaintiff there, “do[ ] not
`wish to editorialize on any subject, cultural, philo-
`sophical, or political,” and have “strictly business”
`purposes. 440 U.S. at 11 (internal quotation marks
`omitted). But that statement clearly does not apply to
`Mr. Tam or many other trademark holders with an
`expressive message. In any event, that aside was not
`part of the central reasoning of the decision, which up-
`held the regulation because of the State’s “substantial
`and well demonstrated” interest in “protecting the
`
`
`
`15
`
`public from the deceptive and misleading use of opto-
`metrical trade names.” Id. at 15. Friedman provides
`no support for the idea that the Government can reg-
`ulate trade names because it disapproves of the mes-
`sage they convey.
`Similarly, San Francisco Arts held that the re-
`striction at issue applied to commercial speech “[t]o
`the extent that” it applied to speech made “for the pur-
`pose of trade or to induce the sale of any goods or ser-
`vices.” 483 U.S. at 535 (emphasis added). But that
`likewise does not describe “The Slants,” which is a
`trademark that seeks to do far more than promote rec-
`ord sales. More broadly, distinguishing between
`“strictly business” trademarks and those that convey
`an editorial, cultural, philosophical, or political pur-
`pose—as Judge Dyk proposed in his opinion, see Pet.
`App. 89a–90a—would only lead courts into hopeless
`line-drawing exercises that are virtually certain to
`produce arbitrary results. It is not clear how a court
`would ever be able to determine that a specific trade-
`mark carries no expressive purpose whatsoever other
`than proposing a commercial transaction. And in a
`situation where commercial speech is intertwined
`with fully protected, noncommercial speech, this
`Court has made clear that “the entirety must . . . be
`classified as noncommercial” speech in order to ensure
`full protection for noncommercial expression. Sorrell,
`564 U.S. at 571 (quoting Bd. of Trs. of State Univ. of
`N.Y. v. Fox, 492 U.S. 469, 474 (1989)).
`Furthermore, even if it were possible to distin-
`guish “strictly business” trademarks from trademarks
`that convey a noncommercial message, Section 2(a)’s
`anti-disparagement provision
`invariably
`targets
`trademarks with expressive, noncommercial charac-
`teristics, rather than those that simply identify the
`sources of goods and services in commerce. As the
`
`
`
`16
`
`Federal Circuit explained, “every time the [Patent and
`Tradema
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