Some Preliminary Thoughts On Matal V. Tam, Trademarks, As Well As The Get-Go Amendment [Updated]

The constitutional analysis inwards the Supreme Court's determination yesterday inwards Matal v. Tam is, with i exception, dissever betwixt ii four-Justice opinions, the kickoff written past times Justice Alito (joined past times the Chief Justice, as well as Justices Thomas as well as Breyer), as well as the minute written past times Justice Kennedy (joined past times Justices Ginsburg. Sotomayor as well as Kagan).   Here are a few preliminary reactions to those opinions.

1.  The "Government Speech?" Diversion.  There is i department of Justice Alito’s constitutional analysis that is an catch for a unanimous Court—Part III-A, inwards which Justice Alito rejects what he calls the Government’s “conten[tion] that trademarks are authorities speech, non individual speech.”  Justice Alito goes on at some length, over half dozen pages, to demonstrate what appears to endure an obvious point—namely, that “it is far-fetched to suggest that the content of a registered [trade]mark is authorities speech.”  “Holding that the registration of a trademark converts the mark into authorities speech,” Justice Alito concludes, “would constitute a huge as well as unsafe extension of the government-speech doctrine” (emphasis added).

Well, yes, that would endure a radical extension of government-speech doctrine.  And yes, it would endure “far-fetched” to suggest that federal registration past times the Patent as well as Trademark Office (PTO) turns a trademark itself into spoken communication past times the US Government.

Which is why the Government didn’t brand that argument.  Contrary to what y'all mightiness squall back from the Court’s opinion, the Government did non “contend” that “trademarks are authorities speech, non individual speech.”  The ground it was so slow for Justice Alito to, well, disparage this declaration is that it’s a straw human being that no political party proposed or defended.

The Government did brand ii arguments that receive got a superficial similarity to the notion that the marks are “government speech,” but those arguments were really distinct from it inwards of import respects. 

First, the Government argued inwards passing that the PTO’s registration of the grade is a cast of authorities spoken communication (and, what’s more, that such authorities spoken communication is a cast of authorities subsidy, a distinct declaration that Justice Alito addressed for a plurality inwards a subsequent department of his opinion—see betoken 2, below).

Of course, the Government is right most that:  The PTO’s certificate of registration—as opposed to the grade itself—is government speech.  As the Solicitor General stressed inwards his brief, it is issued “in the squall of the United States” as well as is transmitted past times the U.S. Government to unusual countries.  Such PTO registration, as well as the ® symbol that grade owners tin as well as so utilization to signal such registration, conveys to the populace that the grade has an official status.  It does, as well as is intended to, mail a message to the viewer (e.g., “this is a federally registered mark”) most how the federal authorities has chosen to process the mark.  That message, inwards turn, farther conveys to the relevant viewers that sure consequences of federal police push clit tin attach if they utilization the grade without authorization.  (At the bottom of page 17 of his opinion, Justice Alito slips from discussing whether the mark is authorities spoken communication to a sentence, perhaps inadvertent, suggesting that “the registration of trademarks” does non “constitut[e] authorities speech.”  If that’s what Justice Alito intended to say, it’s simply mistaken, as well as zilch inwards his catch supports it.)

I do non hateful to suggest that the fact that PTO registration is authorities spoken communication way that denial of such registration to disparaging marks is constitutional.  Primarily for the ground I explicate inwards Point 3, below—and the fact that registration is non only government speech, but also a formal, legally enforceable reallocation of spoken communication rights alongside individual parties—I tend to concur with the Court’s ultimate judgment.  Justice Alito’s extended exegesis on how the grade itself is non authorities speech, however, is simply nonresponsive to the Government’s declaration that registration of the grade is speech past times the U.S. Government.

Second, the Government argued that fifty-fifty though the grade itself is the spoken communication of a individual party, PTO registration is “a cast of authorities assistance that volition closely associate the authorities with offensive terminology.”  The authorities stressed this betoken inwards lodge to constitute a legitimate, benign, justification for its refusal to register disparaging remarks.  “[R]egistration of racial slurs would outcome inwards the incorporation of such slurs into diverse official governmental communications,” explained the government, as well as hence “[t]he authorities has a substantial involvement in disassociating itself from such messages.”

Justice Alito does non specifically position this every bit the Government’s argument, but he really addresses it inwards passing, inwards a unmarried judgement as well as an accompanying citation to a instance involving registration of a grade for condoms:  “The PTO has made it clear that registration does non constitute approving of a mark.  See In re Old Glory Condom Corp., 26 USPQ 2nd 1216, 1220, n. three (TTAB 1993) (‘[I]ssuance of a trademark registration . . . is non a government imprimatur’).”  In other words, Justice Alito contends that the Government has no need to disassociate itself from the offensive mark, because no reasonable audience would conclude that registration constitutes the USG's “association” with, or “approval” of, the grade inwards the kickoff instance.  [UPDATE:  Mike Dorf argues--correctly, I think--that this quick dismissal of the "disassociation" declaration was really valuable, as well as mightiness operate to bound some of the to the lowest degree persuasive aspects of the rationale of the Walker "government speech" spoken communication instance (in which Justice Alito wrote a stinging dissent), fifty-fifty if it was solely a peripheral utilization of the Tam case itself.]

That might, or it mightiness not, endure a sufficient response to the Government’s justification for non registering disparaging marks.  The fact that the grade itself is individual speech, however, is simply inapposite to that question.  [P.S.  Justice Alito also mistakenly wrote that respondent Simon Tam "is the Pb singer" of The Slants.  That would endure Ken Shima.  Tam is principally the bass player.]

2.  Should Trademark Protection endure Treated every bit a Government Benefit--or Subject to Searching First Amendment Scrutiny?  Justice Alito begins his catch with the Court’s conclusion:  The government’s refusal to register “disparaging” marks “offends a bedrock First Amendment principle: Speech may non endure banned on the Blue Planet that it expresses ideas that offend.”  In keeping with this thought that this is a instance involving a “ban” on speech, Justice Alito’s catch is peppered with citations to cases as well as doctrines alarm of First Amendment problems when the terra firma “prohibits,” “restricts” or “suppresses” spoken communication on the soil of viewpoint.  In his opinion, Justice Kennedy likewise writes that “the Court is right to grip [that] §1052(a) constitutes viewpoint discrimination—a cast of spoken communication suppression so rigid that it must endure dependent land to rigorous constitutional scrutiny,” as well as he insists that the instance implicates the “fundamental regulation of the First Amendment that the authorities may non punish or suppress spoken communication based on disapproval of the ideas or perspectives the spoken communication conveys.”

Once again, this is a response to a straw man--an declaration that no political party made.  The Government did non fence that it could “ban,” “restrict,” “punish” or “suppress” disparaging marks:  Indeed, it acknowledged that that would endure unconstitutional—that its rationales “would endure . . . constitutionally insufficient . . . for a ban on the utilization of disparaging language” (Reply Br. 8).

The pump of the government’s instance was, instead, that the PTO’s refusal to register “Slants” was not a ban, or whatsoever variety of a restriction on the band’s legal right to utilization that mark.  Invoking the verb of the Free Speech Clause itself, the authorities insisted that the police push clit does non “abridge” whatsoever spoken communication at all.  The PTO’s refusal to register the grade does non preclude Simon Tam, or the Slants, from maxim anything.  The band remains gratuitous to utilization the mark, every bit it has been doing for many years--indeed, every bit it did for 5 years before it fifty-fifty applied for federal registration.  (The Slants may fifty-fifty utilize common-law as well as other statutory remedies designed to preclude others from using the mark.)  At most, the authorities claims, PTO has denied the band a federal subsidy, or benefit—namely, the robust procedural as well as evidentiary protections available for registered marks nether the Lanham Act.

Indeed, here’s i of the most interesting things most the case:  If as well as when the PTO does register “Slants,” every bit it presumably volition do subsequently yesterday’s decision, that registration itself volition endure speech-suppressive.  That’s because trademark police push clit is a way of allocating spoken communication rights alongside individual parties.  Indeed, the most of import aspect of “owning” a grade is that it gives the possessor exclusive use—a monopoly, of sorts, that prevents competitors as well as others from using the grade inwards a commercial way that would confuse consumers or dilute the value of the owner’s utilization of the mark.  Likewise, federal registration makes it easier for the possessor to prevent others from using the mark.  As the Slants themselves argued, a principal value of federal registration would endure to ensure that other bands do not call themselves “the Slants.”  Now that they’ve won, the discussion “Slants” is less freely available for utilization past times dance-rock bands.  Or squall back of it from the other direction:  If the Court had decided Tam in favor of the PTO, the Earth would shortly endure awash inwards a far greater outpouring of “Redskins” paraphernalia, because Dan Snyder’s monopoly would endure to a greater extent than hard to enforce.

Once again, fifty-fifty if the authorities is right most this—i.e., that the instance involves a authorities “subsidy” or “benefit,” as well as that registering a grade really industrial plant to suppress the powerfulness of some individual parties to beak every bit they wish—that would non necessarily hateful that the anti-disparagement police push clit is constitutional.  Indeed, the Court has held, inwards cases such every bit Denver Area Educational Telecommunications Consortium v. FCC (1996), that content-based regulations allocating spoken communication rights betwixt individual parties—which is what trademark registration does—must endure “scrutinized with the greatest care.”  It does mean, however, that the Court’s repeated invocations of rules regarding spoken communication “bans,” as well as “suppression,” simply don’t engage with the government’s chief argument.

In Part III-B of his opinion, for a four-Justice plurality, Justice Alito does purport to address the government’s subsidy/benefit declaration directly.  If I’m agreement him correctly, he concludes that the Court’s precedents involving content-based discrimination inwards allocating “subsidies” as well as “benefits” are inapposite because trademark registration is a authorities “service” rather than a “benefit” or “subsidy.”  That’s non terribly convincing.  Just because it tin endure (arbitrarily) characterized every bit a “service” does non hateful that trademark registration is non also a do goodness or subsidy—which of course of written report it is.  It is the allotment of sure types of spoken communication rights alongside individual parties--a distribution of legal entitlements.  Nor does Justice Alito offering whatsoever ground why the constitutional handling should endure dissimilar inwards the instance of authorities “services,” i.e., why the authorities should endure precluded from providing gratuitous “services” to individual spoken communication of i viewpoint but non another, inwards a way that would non endure permissible with abide by to "benefits" or "subsidies."

[UPDATE:  It is non precisely clear what the upshot of Justice Alito's Part III-B is intended to be.  On page 12 of his opinion, he suggests that what he is doing inwards Part III is rejecting whatsoever declaration that the First Amendment does non apply to trademark law, or permits "highly permissive rational-basis review."  And inwards Part IV, he appears to endure implying that trademark restrictions are dependent land to commercial spoken communication "Central Hudson review" at a minimum.  Does Justice Alito genuinely hateful to suggest that trademark decisions should endure treated every bit analogous to ordinary spoken communication "bans," or "restrictions"--or at to the lowest degree to such bans or restrictions on commercial speech?  If so, such a asset would opened upward up broad swaths of trademark police push clit to novel constitutional scrutiny because, every bit Rebecca Tushnet has explained (see pp. 406-417), trademark police push clit is shot through with content-based distinctions that would appear non to satisfy most of the doctrinal tests the Court uses to assess ordinary as well as commercial spoken communication restrictions.  There's no indication Justice Alito intended to operate whatsoever such radical constitutionalization of trademark law--and, inwards whatsoever event, his Parts III-B as well as IV did non send a bulk of the Court.

Unfortunately, Justice Kennedy's opinion, too, occasionally lapses into broad generalizations suggesting that trademark police push clit should endure treated just similar ordinary spoken communication restrictions.  He fifty-fifty goes so far every bit to invoke Justice Holmes's dissent inwards Abrams, inwards back upward of his ringing (yet hyperbolic) pronouncement that "in the realm of trademarks, the metaphorical marketplace of ideas becomes a tangible, powerful reality"--as if production names for "designer clothing" as well as "candy bars" (two of Justice Kennedy's examples) should endure accorded constitutional protection on a par with the anti-war leaflets inwards Abrams.  "To permit viewpoint discrimination inwards this context" of trademarks, Justice Kennedy writes, "is to permit
Government censorship."  Taken to its logical conclusion, such an thought would dependent land large swaths of trademark police push clit to constitutional doubts.  I cannot imagine Justice Kennedy intended, however--any to a greater extent than than did Justice Alito--to upend trademark police push clit so fundamentally.  For to a greater extent than regarding the affect of the determination on trademark law, run into Rebecca Tushnet's initial reactions.]

3.   The Narrowest Ground for Resolution--Based Upon An Inadmissible State Objective to Skew Public Debate.  Nevertheless, there was, I think, a fairly simple, as well as relatively narrow, way for the Court to dispose of the instance inwards favor of the Slants--to but hold, every bit Justice Kennedy wrote before inwards his opinion, that "the viewpoint based discrimination at number here necessarily invokes heightened scrutiny," without whatsoever further, to a greater extent than radical implications for viewpoint-based trademark regulations.  Such a narrow asset would, I think, reflect what appears to receive got been most bothering the Justices most the nondisparagement provision; with i possible exception, however--another aside inwards Justice Kennedy's opinion--the Court overlooked it. 

Even inwards the context of authorities benefits, the Court has frequently emphasized that the Free Speech Clause imposes some limits on content- as well as viewpoint-based discrimination:  It has stated repeatedly, for instance, that, fifty-fifty inwards the provision of subsidies, the Government may non “ai[m] at the suppression of unsafe ideas.”  Regan v. Taxation With Representation of Wash. (1983); Legal Services Corp. v. Velazquez (2001).  The Court has also insisted that the authorities receive got at to the lowest degree some legitimate involvement inwards drawing such lines. 

There’s non much of a legitimate involvement here, however.  As I noted above, the authorities made a passing effort to fence that it refuses to register disparaging marks inwards lodge to ensure that others won’t perceive authorities endorsement, or approval, of those marks—the “disassociation” argument.  Although Justice Alito didn’t do plenty to explicate why, I squall back he’s almost for certain right that the disparaging-marks nonregistration dominion is a solution inwards search of a problem:  As Alito notes (citing the examples inwards the Appendix to the Redskins’ amicus brief), “[e]ven today, the principal register is replete with marks that many would regard every bit disparaging to racial as well as ethnic groups.”  In calorie-free of this longstanding PTO practice, no reasonable observer could mayhap conclude that the U.S. authorities approves or endorses all of the marks that it registers.  The “avoiding endorsement” concern, inwards other words, is at best unreasonable, as well as at worst a pretext.

So what is the government’s actual interest, anyway?  The Solicitor General’s briefs are refreshingly candid on that score.  Page 8 of the reply brief, inwards particular, acknowledged that the purpose of refusing registration to disparaging marks is to “[e]ncourag[e] commercial actors to send concern inwards a way that does non insult potential consumers.”  “The authorities . . . has an involvement inwards encouraging marks that position as well as promote a person’s ain goods as well as services without disparaging competitors,” wrote the Solicitor General.  “Congress may seek to encourage the utilization of non-disparaging marks past times making the benefits of federal registration unavailable for racial slurs as well as personal insults.”

In other words, Congress (and the PTO) are trying to utilization the registration organisation to “encourage” people to conduct identifiers that volition avoid insulting or disparaging others--which, inwards this case, way not using marks, for the same goods as well as services, that do disparage (because, after all, when it comes to trademarks, it’s commonly a zero-sum game: either the band volition telephone band itself “the Slants” or it volition conduct a dissimilar name).  That mightiness endure a laudable goal—to skew the individual “marketplace of ideas” inwards the management of civility—but it’s i that classic Free Speech doctrine views with deep skepticism. 

It is true, every bit the authorities noted, the Court has held inwards cases such every bit Rust v. Sullivan (1991) that “Congress may ‘selectively fund a plan to encourage sure activities it believes to endure inwards the populace involvement without at the same fourth dimension funding an option plan which seeks to bargain with the occupation some other way.’”  But where, every bit here, the state’s admitted object is non solely to “encourage sure activities it believes to endure inwards the populace interest,” but also to incentivize people to abjure the utilization of disfavored speech, well, then, every bit inwards Legal Services Corp. v. Velazquez, that seems to come upward awfully about describing what the Court presumably way when it warns that the authorities may non utilization selective spoken communication subsidies to “ai[m] at the suppression of unsafe ideas.”

In other words, the Court mightiness receive got resolved the instance past times simply asset that the government’s acknowledged objective is a constitutionally illegitimate one, at to the lowest degree when it comes to the utilization of authorities subsidies (or “services”).  (To endure sure, the Court has held that the authorities can seek to attain those same ends past times way of its ain speech—using the “bully pulpit,” for example, to implore people to endure to a greater extent than civil to i another.  Public schools learn their students that lesson every day.  See also, e.g., Meese v. Keene (1987); Johanns v. Livestock Marketing Assn. (2005).  Rightly or wrongly, however, the Court has repeatedly said that what the terra firma tin effort to attain past times speaking it cannot ever aim to do via selective conferral of terra firma benefits.)

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There is i judgement inwards Tam that points toward this rationale:  Justice Kennedy writes that “[t]he danger of viewpoint discrimination is that the authorities is attempting to withdraw sure ideas or perspectives from a broader debate.”  Perhaps a bulk of the Court should receive got picked upward on that notion, as well as simply held that the Constitution forbids the viewpoint-based manipulation of authorities subsidies when it is done—as the authorities concedes it was here—in an effort “to withdraw sure ideas or perspectives from a broader debate.”  

Such a asset would hardly receive got resolved all the famously hard questions raised past times doctrinal distinctions betwixt benefits as well as burdens—that would endure besides much to enquire of whatsoever unmarried Free Speech decision.  Most obviously, it would non explicate why it is permissible for the authorities to selectively subsidize individual spoken communication inwards lodge to promote one side of a populace debate (e.g., inwards Rust, discouraging abortions), but non permissible to utilization subsidies every bit a way of persuading others to forego expressing a item viewpoint or perspective (in Justice Kennedy’s words, to “remove” an thought or perspective from the populace debate).  Even so, such a rationale would receive got been to a greater extent than explicable, as well as hence to a greater extent than satisfying, than the hodge-podge of analysis found throughout the ii principal opinions, neither of which commanded a bulk of the Court on the case’s key questions.