Iancu v. Brunetti

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
IANCU, UNDER SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR, PATENT
AND TRADEMARK OFFICE v. BRUNETTI
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
No. 18–302. Argued April 15, 2019—Decided June 24, 2019
Respondent Erik Brunetti sought federal registration of the trademark
FUCT. The Patent and Trademark Office (PTO) denied his applica-
tion under a provision of the Lanham Act that prohibits registration
of trademarks that “[c]onsist[ ] of or comprise[ ] immoral[ ] or scan-
dalous matter,” 15 U.S. C. §1052(a). Brunetti brought a First
Amendment challenge to the “immoral or scandalous” bar in the Fed-
eral Circuit, which invalidated the provision.
Held: The Lanham Act’s prohibition on registration of “immoral[ ] or
scandalous” trademarks violates the First Amendment.
In Matal v. Tam, 582 U. S. ___, this Court declared unconstitution-
al the Lanham Act’s ban on registering marks that “disparage” any
“person[ ], living or dead.” §1052(a). A divided Court agreed on two
propositions. First, if a trademark registration bar is viewpoint
based, it is unconstitutional. And second, the disparagement bar was
viewpoint based.
The “immoral or scandalous” bar similarly discriminates on the
basis of viewpoint and so collides with this Court’s First Amendment
doctrine. Expressive material is “immoral” when it is “inconsistent
with rectitude, purity, or good morals”; “wicked”; or “vicious.” So the
Lanham Act permits registration of marks that champion society’s
sense of rectitude and morality, but not marks that denigrate those
concepts. And material is “scandalous” when it “giv[es] offense to the
conscience or moral feelings”; “excite[s] reprobation”; or “call[s] out
condemnation.” So the Lanham Act allows registration of marks
when their messages accord with, but not when their messages defy,
2 IANCU v. BRUNETTI
Syllabus
society’s sense of decency or propriety. The statute, on its face, dis-
tinguishes between two opposed sets of ideas: those aligned with con-
ventional moral standards and those hostile to them; those inducing
societal nods of approval and those provoking offense and condemna-
tion. This facial viewpoint bias in the law results in viewpoint-
discriminatory application. The PTO has refused to register marks
communicating “immoral” or “scandalous” views about (among other
things) drug use, religion, and terrorism. But all the while, it has
approved registration of marks expressing more accepted views on
the same topics.
The Government says the statute is susceptible of a limiting con-
struction that would remove its viewpoint bias. The Government’s
idea is to narrow the statutory bar to “marks that are offensive [or]
shocking[ ] because of their mode of expression, independent of any
views that they may express,” which would mostly restrict the PTO
to refusing marks that are lewd, sexually explicit, or profane. But
this Court cannot accept the Government’s proposal, because the
statute says something markedly different. The “immoral or scan-
dalous” bar does not draw the line at lewd, sexually explicit, or pro-
fane marks. Nor does it refer only to marks whose “mode of expres-
sion,” independent of viewpoint, is particularly offensive. To cut the
statute off where the Government urges is not to interpret the stat-
ute Congress enacted, but to fashion a new one. And once the “im-
moral or scandalous” bar is interpreted fairly, it must be invalidated.
Pp. 4–11.
877 F.3d 1330, affirmed.
KAGAN, J., delivered the opinion of the Court, in which THOMAS,
GINSBURG, ALITO, GORSUCH and KAVANAUGH, JJ., joined. ALITO, J.,
filed a concurring opinion. ROBERTS, C. J., and BREYER, J., filed opin-
ions concurring in part and dissenting in part. SOTOMAYOR, J., filed an
opinion concurring in part and dissenting in part, in which BREYER, J.,
joined.
Cite as: 588 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
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SUPREME COURT OF THE UNITED STATES
_________________
No. 18–302
_________________
ANDREI IANCU, UNDER SECRETARY OF COMMERCE
FOR INTELLECTUAL PROPERTY AND DIRECTOR,
PATENT AND TRADEMARK OFFICE,
PETITIONER v. ERIK BRUNETTI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 24, 2019]
JUSTICE KAGAN delivered the opinion of the Court.
Two Terms ago, in Matal v. Tam, 582 U. S. ___ (2017),
this Court invalidated the Lanham Act’s bar on the regis-
tration of “disparag[ing]” trademarks. 15 U.S. C.
§1052(a). Although split between two non-majority opin-
ions, all Members of the Court agreed that the provision
violated the First Amendment because it discriminated on
the basis of viewpoint. Today we consider a First
Amendment challenge to a neighboring provision of the
Act, prohibiting the registration of “immoral[ ] or scandal-
ous” trademarks. Ibid. We hold that this provision in-
fringes the First Amendment for the same reason: It too
disfavors certain ideas.
I
Respondent Erik Brunetti is an artist and entrepreneur
who founded a clothing line that uses the trademark
FUCT. According to Brunetti, the mark (which functions
as the clothing’s brand name) is pronounced as four let-
ters, one after the other: F-U-C-T. See Brief for Respond-
2 IANCU v. BRUNETTI
Opinion of the Court
ent 1. But you might read it differently and, if so, you
would hardly be alone. See Tr. of Oral Arg. 5 (describing
the brand name as “the equivalent of [the] past participle
form of a well-known word of profanity”). That common
perception caused difficulties for Brunetti when he tried to
register his mark with the U. S. Patent and Trademark
Office (PTO).
Under the Lanham Act, the PTO administers a federal
registration system for trademarks. See 15 U.S. C.
§§1051, 1052. Registration of a mark is not mandatory.
The owner of an unregistered mark may still use it in
commerce and enforce it against infringers. See Tam, 582
U. S., at ___ (slip op., at 4). But registration gives trade-
mark owners valuable benefits. For example, registration
constitutes “prima facie evidence” of the mark’s validity.
§1115(a). And registration serves as “constructive notice
of the registrant’s claim of ownership,” which forecloses
some defenses in infringement actions. §1072. Generally,
a trademark is eligible for registration, and receipt of such
benefits, if it is “used in commerce.” §1051(a)(1). But the
Act directs the PTO to “refuse[ ] registration” of certain
marks. §1052. For instance, the PTO cannot register a
mark that “so resembles” another mark as to create a
likelihood of confusion. §1052(d). It cannot register a
mark that is “merely descriptive” of the goods on which it
is used. §1052(e). It cannot register a mark containing
the flag or insignia of any nation or State. See §1052(b).
There are five or ten more (depending on how you count).
And until we invalidated the criterion two years ago, the
PTO could not register a mark that “disparage[d]” a “per-
son[ ], living or dead.” §1052(a); see Tam, 582 U. S. ___.
This case involves another of the Lanham Act’s prohibi-
tions on registration—one applying to marks that
“[c]onsist[ ] of or comprise[ ] immoral[ ] or scandalous mat-
ter.” §1052(a). The PTO applies that bar as a “unitary
provision,” rather than treating the two adjectives in it
Cite as: 588 U. S. ____ (2019) 3
Opinion of the Court
separately. In re Brunetti, 877 F.3d 1330, 1336 (CA Fed.
2017); Brief for Petitioner 6 (stating that the PTO “has
long treated the two terms as composing a single category”).
To determine whether a mark fits in the category, the
PTO asks whether a “substantial composite of the general
public” would find the mark “shocking to the sense of
truth, decency, or propriety”; “giving offense to the con-
science or moral feelings”; “calling out for condemnation”;
“disgraceful”; “offensive”; “disreputable”; or “vulgar.” 877
F.3d, at 1336 (internal quotation marks omitted); see
Brief for Petitioner 6 (agreeing that the PTO “generally
defines” the category in that way).
Both a PTO examining attorney and the PTO’s Trade-
mark Trial and Appeal Board decided that Brunetti’s
mark flunked that test. The attorney determined that
FUCT was “a total vulgar” and “therefore[ ] unregistrable.”
App. 27–28. On review, the Board stated that the mark
was “highly offensive” and “vulgar,” and that it had “de-
cidedly negative sexual connotations.” App. to Pet. for
Cert. 59a, 64a–65a. As part of its review, the Board also
considered evidence of how Brunetti used the mark. It
found that Brunetti’s website and products contained
imagery, near the mark, of “extreme nihilism” and “anti-
social” behavior. Id., at 64a. In that context, the Board
thought, the mark communicated “misogyny, depravity,
[and] violence.” Ibid. The Board concluded: “Whether one
considers [the mark] as a sexual term, or finds that [Bru-
netti] has used [the mark] in the context of extreme mi-
sogyny, nihilism or violence, we have no question but that
[the term is] extremely offensive.” Id., at 65a.
Brunetti then brought a facial challenge to the “immoral
or scandalous” bar in the Court of Appeals for the Federal
Circuit. That court found the prohibition to violate the
First Amendment. As usual when a lower court has inval-
idated a federal statute, we granted certiorari. 586 U. S.
___ (2019).
4 IANCU v. BRUNETTI
Opinion of the Court
II
This Court first considered a First Amendment chal-
lenge to a trademark registration restriction in Tam, just
two Terms ago. There, the Court declared unconstitutional
the Lanham Act’s ban on registering marks that “dispar-
age” any “person[ ], living or dead.” §1052(a). The eight-
Justice Court divided evenly between two opinions and
could not agree on the overall framework for deciding the
case. (In particular, no majority emerged to resolve
whether a Lanham Act bar is a condition on a government
benefit or a simple restriction on speech.) But all the
Justices agreed on two propositions. First, if a trademark
registration bar is viewpoint-based, it is unconstitutional.
See 582 U. S., at ___–___, ___–___ (opinion of ALITO, J.)
(slip op., at 1–2, 22–23); id., at ___–___, ___ (opinion of
Kennedy, J.) (slip op., at 1–2, 5). And second, the dispar-
agement bar was viewpoint-based. See id., at ___–___,
___–___ (opinion of ALITO, J.) (slip op., at 1–2, 22–23); id.,
at ___–___ (opinion of Kennedy, J.) (slip op., at 2–5).
The Justices thus found common ground in a core postu-
late of free speech law: The government may not discrimi-
nate against speech based on the ideas or opinions it
conveys. See Rosenberger v. Rector and Visitors of Univ. of
Va., 515 U.S. 819, 829–830 (1995) (explaining that view-
point discrimination is an “egregious form of content
discrimination” and is “presumptively unconstitutional”).
In Justice Kennedy’s explanation, the disparagement bar
allowed a trademark owner to register a mark if it was
“positive” about a person, but not if it was “derogatory.”
Tam, 582 U. S., at ___ (slip op., at 2). That was the “es-
sence of viewpoint discrimination,” he continued, because
“[t]he law thus reflects the Government’s disapproval of a
subset of messages it finds offensive.” Id., at ___–___ (slip
op., at 2–3). JUSTICE ALITO emphasized that the statute
“denie[d] registration to any mark” whose disparaging
message was “offensive to a substantial percentage of the
Cite as: 588 U. S. ____ (2019) 5
Opinion of the Court
members of any group.” Id., at ___ (slip op., at 22). The
bar thus violated the “bedrock First Amendment principle”
that the government cannot discriminate against “ideas
that offend.” Id., at ___–___ (slip op., at 1–2). Slightly
different explanations, then, but a shared conclusion:
Viewpoint discrimination doomed the disparagement bar.
If the “immoral or scandalous” bar similarly discrimi-
nates on the basis of viewpoint, it must also collide with
our First Amendment doctrine. The Government does not
argue otherwise. In briefs and oral argument, the Gov-
ernment offers a theory for upholding the bar if it is
viewpoint-neutral (essentially, that the bar would then be
a reasonable condition on a government benefit). See
Brief for Petitioner 14–26. But the Government agrees
that under Tam it may not “deny registration based on the
views expressed” by a mark. Tr. of Oral Arg. 24. “As the
Court’s Tam decision establishes,” the Government says,
“the criteria for federal trademark registration” must be
“viewpoint-neutral to survive Free Speech Clause review.”
Pet. for Cert. 19. So the key question becomes: Is the
“immoral or scandalous” criterion in the Lanham Act
viewpoint-neutral or viewpoint-based?
It is viewpoint-based. The meanings of “immoral” and
“scandalous” are not mysterious, but resort to some dic-
tionaries still helps to lay bare the problem. When is
expressive material “immoral”? According to a standard
definition, when it is “inconsistent with rectitude, purity,
or good morals”; “wicked”; or “vicious.” Webster’s New
International Dictionary 1246 (2d ed. 1949). Or again,
when it is “opposed to or violating morality”; or “morally
evil.” Shorter Oxford English Dictionary 961 (3d ed.
1947). So the Lanham Act permits registration of marks
that champion society’s sense of rectitude and morality,
but not marks that denigrate those concepts. And when is
such material “scandalous”? Says a typical definition,
when it “giv[es] offense to the conscience or moral feel-
6 IANCU v. BRUNETTI
Opinion of the Court
ings”; “excite[s] reprobation”; or “call[s] out condemna-
tion.” Webster’s New International Dictionary, at 2229.
Or again, when it is “shocking to the sense of truth, decency,
or propriety”; “disgraceful”; “offensive”; or “disreputable.”
Funk & Wagnalls New Standard Dictionary 2186 (1944).
So the Lanham Act allows registration of marks when
their messages accord with, but not when their messages
defy, society’s sense of decency or propriety. Put the pair
of overlapping terms together and the statute, on its face,
distinguishes between two opposed sets of ideas: those
aligned with conventional moral standards and those
hostile to them; those inducing societal nods of approval
and those provoking offense and condemnation. The
statute favors the former, and disfavors the latter. “Love
rules”? “Always be good”? Registration follows. “Hate
rules”? “Always be cruel”? Not according to the Lanham
Act’s “immoral or scandalous” bar.
The facial viewpoint bias in the law results in
viewpoint-discriminatory application. Recall that the PTO
itself describes the “immoral or scandalous” criterion
using much the same language as in the dictionary defini-
tions recited above. See supra, at 3. The PTO, for exam-
ple, asks whether the public would view the mark as
“shocking to the sense of truth, decency, or propriety”;
“calling out for condemnation”; “offensive”; or “disrepu-
table.” Brief for Petitioner 6 (internal quotation marks
omitted). Using those guideposts, the PTO has refused to
register marks communicating “immoral” or “scandalous”
views about (among other things) drug use, religion, and
terrorism. But all the while, it has approved registration
of marks expressing more accepted views on the same
topics. See generally Gilson & LaLonde, Trademarks Laid
Bare, 101 Trademark Reporter 1476, 1510–1513, 1518–
1522 (2011); Brief for Barton Beebe et al. as Amici Curiae
28–29.
Here are some samples. The PTO rejected marks con-
Cite as: 588 U. S. ____ (2019) 7
Opinion of the Court
veying approval of drug use (YOU CAN’T SPELL
HEALTHCARE WITHOUT THC for pain-relief medica-
tion, MARIJUANA COLA and KO KANE for beverages)
because it is scandalous to “inappropriately glamoriz[e]
drug abuse.” PTO, Office Action of Aug. 28, 2010, Serial
No. 85038867; see Office Action of Dec. 24, 2009, Serial
No. 77833964; Office Action of Nov. 17, 2009, Serial No.
77671304. But at the same time, the PTO registered
marks with such sayings as D.A.R.E. TO RESIST DRUGS
AND VIOLENCE and SAY NO TO DRUGS—REALITY IS
THE BEST TRIP IN LIFE. See PTO, Reg. No. 2975163
(July 26, 2005); Reg. No. 2966019 (July 12, 2005). Simi-
larly, the PTO disapproved registration for the mark
BONG HITS 4 JESUS because it “suggests that people
should engage in an illegal activity [in connection with]
worship” and because “Christians would be morally out-
raged by a statement that connects Jesus Christ with
illegal drug use.” Office Action of Mar. 15, 2008, Serial
No. 77305946. And the PTO refused to register trade-
marks associating religious references with products
(AGNUS DEI for safes and MADONNA for wine) because
they would be “offensive to most individuals of the Chris-
tian faith” and “shocking to the sense of propriety.” Ex
parte Summit Brass & Bronze Works, 59 U.S.P.Q. (BNA) 22, 23
(Dec. Com. Pat. 1943); In re Riverbank Canning Co., 95 F.
2d 327, 329 (CCPA 1938). But once again, the PTO ap-
proved marks—PRAISE THE LORD for a game and
JESUS DIED FOR YOU on clothing—whose message
suggested religious faith rather than blasphemy or irrev-
erence. See Reg. No. 5265121 (Aug. 15, 2017); Reg. No.
3187985 (Dec. 19, 2006). Finally, the PTO rejected marks
reflecting support for al-Qaeda (BABY AL QAEDA and
AL-QAEDA on t-shirts) “because the bombing of civilians
and other terrorist acts are shocking to the sense of decency
and call out for condemnation.” Office Action of Nov. 22,
2004, Serial No. 78444968; see Office Action of Feb. 23,
8 IANCU v. BRUNETTI
Opinion of the Court
2005, Serial No. 78400213. Yet it approved registration of
a mark with the words WAR ON TERROR MEMORIAL.
Reg. No. 5495362 (Jun. 19, 2018). Of course, all these
decisions are understandable. The rejected marks express
opinions that are, at the least, offensive to many Ameri-
cans. But as the Court made clear in Tam, a law disfavor-
ing “ideas that offend” discriminates based on viewpoint,
in violation of the First Amendment. 582 U. S., at ___
(opinion of ALITO, J.) (slip op., at 2); see id., at ___–___
(slip op., at 22–23); id., at ___–___ (opinion of Kennedy, J.)
(slip op., at 2–3).
How, then, can the Government claim that the “immoral
or scandalous” bar is viewpoint-neutral? The Government
basically asks us to treat decisions like those described
above as PTO examiners’ mistakes. See Brief for Petitioner
46. Still more, the Government tells us to ignore how
the Lanham Act’s language, on its face, disfavors some
ideas. In urging that course, the Government does not
dispute that the statutory language—and words used to
define it—have just that effect. At oral argument, the
Government conceded: “[I]f you just looked at the words
like ‘shocking’ and ‘offensive’ on their face and gave them
their ordinary meanings[,] they could easily encompass
material that was shocking [or offensive] because it ex-
pressed an outrageous point of view or a point of view that
most members” of society reject. Tr. of Oral Arg. 6. But
no matter, says the Government, because the statute is
“susceptible of” a limiting construction that would remove
this viewpoint bias. Id., at 7 (arguing that the Court
should “attempt to construe [the] statute in a way that
would render it constitutional”). The Government’s idea,
abstractly phrased, is to narrow the statutory bar to
“marks that are offensive [or] shocking to a substantial
segment of the public because of their mode of expression,
independent of any views that they may express.” Id., at
11 (emphasis added); see Brief for Petitioner 27–28. More
Cite as: 588 U. S. ____ (2019) 9
Opinion of the Court
concretely, the Government explains that this reinterpre-
tation would mostly restrict the PTO to refusing marks
that are “vulgar”—meaning “lewd,” “sexually explicit or
profane.” Id., at 27, 30. Such a reconfigured bar, the
Government says, would not turn on viewpoint, and so we
could uphold it.
But we cannot accept the Government’s proposal, be-
cause the statute says something markedly different. This
Court, of course, may interpret “ambiguous statutory
language” to “avoid serious constitutional doubts.” FCC v.
Fox Television Stations, Inc., 556 U.S. 502, 516 (2009).
But that canon of construction applies only when ambiguity
exists. “We will not rewrite a law to conform it to consti-
tutional requirements.” United States v. Stevens, 559
U.S. 460, 481 (2010) (internal quotation marks and alter-
ation omitted). So even assuming the Government’s read-
ing would eliminate First Amendment problems, we may
adopt it only if we can see it in the statutory language.
And we cannot. The “immoral or scandalous” bar stretches
far beyond the Government’s proposed construction.
The statute as written does not draw the line at lewd,
sexually explicit, or profane marks. Nor does it refer only
to marks whose “mode of expression,” independent of
viewpoint, is particularly offensive. Brief for Petitioner 28
(internal quotation marks omitted). It covers the universe
of immoral or scandalous—or (to use some PTO synonyms)
offensive or disreputable—material. Whether or not lewd
or profane. Whether the scandal and immorality comes
from mode or instead from viewpoint. To cut the statute
off where the Government urges is not to interpret the
statute Congress enacted, but to fashion a new one.*
——————
*We reject the dissent’s statutory surgery for the same reason. Al-
though conceding that the term “immoral” cannot be saved, the dissent
thinks that the term “scandalous” can be read as the Government
proposes. See post, at 1–2 (SOTOMAYOR, J., concurring in part and
dissenting in part). But that term is not “ambiguous,” as the dissent
10 IANCU v. BRUNETTI
Opinion of the Court
And once the “immoral or scandalous” bar is interpreted
fairly, it must be invalidated. The Government just barely
argues otherwise. In the last paragraph of its brief, the
Government gestures toward the idea that the provision is
salvageable by virtue of its constitutionally permissible
applications (in the Government’s view, its applications to
lewd, sexually explicit, or profane marks). See id., at 47.
In other words, the Government invokes our First
Amendment overbreadth doctrine, and asks us to uphold
the statute against facial attack because its unconstitu-
tional applications are not “substantial” relative to “the
statute’s plainly legitimate sweep.” Stevens, 559 U.S., at
473 (internal quotation marks omitted). But to begin
with, this Court has never applied that kind of analysis to
a viewpoint-discriminatory law. In Tam, for example, we
did not pause to consider whether the disparagement
clause might admit some permissible applications (say, to
certain libelous speech) before striking it down. The
Court’s finding of viewpoint bias ended the matter. And
similarly, it seems unlikely we would compare permissible
and impermissible applications if Congress outright
banned “offensive” (or to use some other examples, “divi-
sive” or “subversive”) speech. Once we have found that a
law “aim[s] at the suppression of ” views, why would it
——————
argues, post, at 3; it is just broad. Remember that the dictionaries
define it to mean offensive, disreputable, exciting reprobation, and so
forth. See supra, at 5–6; post, at 3 (accepting those definitions). Even if
hived off from “immoral” marks, the category of scandalous marks thus
includes both marks that offend by the ideas they convey and marks
that offend by their mode of expression. And its coverage of the former
means that it discriminates based on viewpoint. We say nothing at all
about a statute that covers only the latter—or, in the Government’s
more concrete description, a statute limited to lewd, sexually explicit,
and profane marks. Nor do we say anything about how to evaluate
viewpoint-neutral restrictions on trademark registration, see post, at
14–17—because the “scandalous” bar (whether or not attached to the
“immoral” bar) is not one.
Cite as: 588 U. S. ____ (2019) 11
Opinion of the Court
matter that Congress could have captured some of the
same speech through a viewpoint-neutral statute? Tam,
582 U. S., at ___ (opinion of Kennedy, J.) (slip op., at 2).
But in any event, the “immoral or scandalous” bar is sub-
stantially overbroad. There are a great many immoral and
scandalous ideas in the world (even more than there are
swearwords), and the Lanham Act covers them all. It
therefore violates the First Amendment.
We accordingly affirm the judgment of the Court of
Appeals.
It is so ordered.
Cite as: 588 U. S. ____ (2019) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–302
_________________
ANDREI IANCU, UNDER SECRETARY OF COMMERCE
FOR INTELLECTUAL PROPERTY AND DIRECTOR,
PATENT AND TRADEMARK OFFICE,
PETITIONER v. ERIK BRUNETTI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 24, 2019]
JUSTICE ALITO, concurring.
For the reasons explained in the opinion of the Court,
the provision of the Lanham Act at issue in this case
violates the Free Speech Clause of the First Amendment
because it discriminates on the basis of viewpoint and
cannot be fixed without rewriting the statute. Viewpoint
discrimination is poison to a free society. But in many
countries with constitutions or legal traditions that claim
to protect freedom of speech, serious viewpoint discrimina-
tion is now tolerated, and such discrimination has become
increasingly prevalent in this country. At a time when
free speech is under attack, it is especially important for
this Court to remain firm on the principle that the First
Amendment does not tolerate viewpoint discrimination.
We reaffirm that principle today.
Our decision is not based on moral relativism but on the
recognition that a law banning speech deemed by govern-
ment officials to be “immoral” or “scandalous” can easily
be exploited for illegitimate ends. Our decision does not
prevent Congress from adopting a more carefully focused
statute that precludes the registration of marks contain-
ing vulgar terms that play no real part in the expression of
ideas. The particular mark in question in this case could
2 IANCU v. BRUNETTI
ALITO, J., concurring
be denied registration under such a statute. The term
suggested by that mark is not needed to express any idea
and, in fact, as commonly used today, generally signifies
nothing except emotion and a severely limited vocabulary.
The registration of such marks serves only to further
coarsen our popular culture. But we are not legislators
and cannot substitute a new statute for the one now in
force.
Cite as: 588 U. S. ____ (2019) 1
ROBERTS, C. J., concurring inOBERTS
Opinion of R part and
, C. dissenting
J. in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–302
_________________
ANDREI IANCU, UNDER SECRETARY OF COMMERCE
FOR INTELLECTUAL PROPERTY AND DIRECTOR,
PATENT AND TRADEMARK OFFICE,
PETITIONER v. ERIK BRUNETTI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 24, 2019]
CHIEF JUSTICE ROBERTS, concurring in part and dissent-
ing in part.
The Lanham Act directs the Patent and Trademark
Office to refuse registration to marks that consist of or
comprise “immoral, deceptive, or scandalous matter.” 15
U.S. C. §1052(a). Although the statute lists “immoral”
and “scandalous” separately, the PTO has long read those
terms together to constitute a unitary bar on “immoral or
scandalous” marks.
The Government concedes that the provision so read is
broad enough to reach not only marks that offend because
of their mode of expression (such as vulgarity and profanity)
but also marks that offend because of the ideas they con-
vey. The Government urges, however, that the provision
can be given a narrowing construction—it can be under-
stood to cover only marks that offend because of their
mode of expression.
The Court rejects that proposal on the ground that it
would in effect rewrite the statute. I agree with the ma-
jority that the “immoral” portion of the provision is not
susceptible of a narrowing construction that would elimi-
nate its viewpoint bias. As JUSTICE SOTOMAYOR explains,
however, the “scandalous” portion of the provision is sus-
2 IANCU v. BRUNETTI
ROBERTS, C. J., concurring inOBERTS
Opinion of R part and
, C. dissenting
J. in part
ceptible of such a narrowing construction. Standing alone,
the term “scandalous” need not be understood to reach
marks that offend because of the ideas they convey; it can
be read more narrowly to bar only marks that offend
because of their mode of expression—marks that are
obscene, vulgar, or profane. That is how the PTO now
understands the term, in light of our decision in Matal v.
Tam, 582 U. S. ___ (2017). See Tr. of Oral Arg. 4–5. I
agree with JUSTICE SOTOMAYOR that such a narrowing
construction is appropriate in this context.
I also agree that, regardless of how exactly the trade-
mark registration system is best conceived under our
precedents—a question we left open in Tam—refusing
registration to obscene, vulgar, or profane marks does not
offend the First Amendment. Whether such marks can be
registered does not affect the extent to which their owners
may use them in commerce to identify goods. No speech is
being restricted; no one is being punished. The owners of
such marks are merely denied certain additional benefits
associated with federal trademark registration. The Gov-
ernment, meanwhile, has an interest in not associating
itself with trademarks whose content is obscene, vulgar, or
profane. The First Amendment protects the freedom of
speech; it does not require the Government to give aid and
comfort to those using obscene, vulgar, and profane modes
of expression. For those reasons, I concur in part and
dissent in part.
Cite as: 588 U. S. ____ (2019) 1
Opinion of BREYER, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–302
_________________
ANDREI IANCU, UNDER SECRETARY OF COMMERCE
FOR INTELLECTUAL PROPERTY AND DIRECTOR,
PATENT AND TRADEMARK OFFICE,
PETITIONER v. ERIK BRUNETTI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 24, 2019]
JUSTICE BREYER, concurring in part and dissenting in
part.
Our precedents warn us against interpreting statutes in
ways that would likely render them unconstitutional.
Virginia v. American Booksellers Assn., Inc., 484 U.S. 383,
397 (1988) (noting that a law “will be upheld” if it is
“ ‘readily susceptible’ to a narrowing construction that
would make it constitutional”); United States v. 12 200-ft.
Reels of Super 8MM. Film, 413 U.S. 123, 130, n. 7 (1973)
(noting our “duty” to adopt a “ ‘fairly possible’ ” construc-
tion by which constitutional doubts “ ‘may be avoided’ ”
(quoting United States v. Thirty-seven Photographs, 402
U.S. 363, 369 (1971))). Following these precedents, I
agree with JUSTICE SOTOMAYOR that, for the reasons she
gives, we should interpret the word “scandalous” in the
present statute to refer only to certain highly “vulgar” or
“obscene” modes of expression. See post, at 6–7 (opinion
concurring in part and dissenting in part).
The question, then, is whether the First Amendment
permits the Government to rely on this statute, as nar-
rowly construed, to deny the benefits of federal trademark
registration to marks like the one at issue here, which
involves the use of the term “FUCT” in connection with a
2 IANCU v. BRUNETTI
Opinion of BREYER, J.
clothing line that includes apparel for children and in-
fants. Like JUSTICE SOTOMAYOR, I believe the answer is
“yes,” though my reasons differ slightly from hers.
I
A
In my view, a category-based approach to the First
Amendment cannot adequately resolve the problem before
us. I would place less emphasis on trying to decide whether
the statute at issue should be categorized as an exam-
ple of “viewpoint discrimination,” “content discrimination,”
“commercial speech,” “government speech,” or the like.
Rather, as I have written before, I believe we would do
better to treat this Court’s speech-related categories not as
outcome-determinative rules, but instead as rules of
thumb. See Reed v. Town of Gilbert, 576 U. S. ___, ___
(2015) (opinion concurring in judgment) (slip op., at 1).
After all, these rules are not absolute. The First
Amendment is not the Tax Code. Indeed, even when we
consider a regulation that is ostensibly “viewpoint discrim-
inatory” or that is subject to “strict scrutiny,” we some-
times find the regulation to be constitutional after weigh-
ing the competing interests involved. See, e.g., Morse v.
Frederick, 551 U.S. 393, 397 (2007) (“[S]chools may take
steps to safeguard those entrusted to their care from
speech that can reasonably be regarded as encouraging
illegal drug use”); Williams-Yulee v. Florida Bar, 575 U.S.
433, ___ (2015) (slip op., at 8) (explaining that although
“ ‘it is the rare case’ ” when a statute satisfies strict scru-
tiny, “those cases do arise” (quoting Burson v. Freeman, 504
U.S. 191, 211 (1992) (plurality opinion))).
Unfortunately, the Court has sometimes applied these
rules—especially the category of “content discrimina-
tion”—too rigidly. In a number of cases, the Court has
struck down what I believe are ordinary, valid regulations
that pose little or no threat to the speech interests that the
Cite as: 588 U. S. ____ (2019) 3
Opinion of BREYER, J.
First Amendment protects. See Janus v. State, County,
and Municipal Employees, 585 U. S. ___, ___–___ (2018)
(KAGAN, J., dissenting) (slip op., at 27–28); Sorrell v. IMS
Health Inc., 564 U.S. 552, 589–592 (2011) (BREYER, J.,
dissenting); see generally Reed, 576 U. S., at ___–___
(opinion of BREYER, J.) (slip op., at 2–4).
Rather than deducing the answers to First Amendment
questions strictly from categories, as the Court often does,
I would appeal more often and more directly to the values
the First Amendment seeks to protect. As I have previ-
ously written, I would ask whether the regulation at issue
“works speech-related harm that is out of proportion to its
justifications.” United States v. Alvarez, 567 U.S. 709,
730 (2012) (opinion concurring in judgment); see Reed, 576
U. S., at ___ (opinion concurring in judgment) (slip op., at
4) (discussing the matter further, particularly in respect to
the category of content discrimination).
B
This case illustrates the limits of relying on rigid First
Amendment categories, for the statute at issue does not fit
easily into any of these categories.
The Court has not decided whether the trademark
statute is simply a method of regulating pure “commercial
speech.” See Matal v. Tam, 582 U. S. ___, ___ (2017)
(opinion of ALITO, J.) (slip op., at 24) (leaving open the
question whether trademarks are commercial speech); id.,
at ___ (opinion of Kennedy, J.) (slip op., at 5) (same).
There may be reasons for doubt on that score. Trade-
marks, after all, have an expressive component in addition
to a commercial one, and the statute does not bar anyone
from speaking. To be sure, the statute does regulate the
commercial function of trademarks. But it does so in a
limited way designed primarily to ensure that a mark
identifies the product’s source. See Wal-Mart Stores, Inc.
v. Samara Brothers, Inc., 529 U.S. 205, 212 (2000).
4 IANCU v. BRUNETTI
Opinion of BREYER, J.
The trademark statute cannot easily be described as a
regulation of “government speech,” either. Tam, 582 U. S.,
at ___–___ (slip op., at 12–18). The Government, however,
may be loosely associated with the mark because it regis-
ters the mark and confers certain benefits upon the owner.
What about the concept of a “public forum”? Trademark
registration has little in common with a traditional public
forum, as the register of trademarks is not a public park, a
street, or a similar forum for public debate. See Perry Ed.
Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45
(1983). But one can find some vague resemblance between
trademark registration and what this Court refers to as a
“limited public forum” created by the government for
private speech. See post, at 15 (opinion of SOTOMAYOR, J.);
Christian Legal Soc. Chapter of Univ. of Cal., Hastings
College of Law v. Martinez, 561 U.S. 661, 679, n. 11
(2010). The trademark registration system also bears
some resemblance to cases involving government subsidies
for private speech, as such programs—like trademark
registration—may grant a benefit to some forms of speech
without prohibiting other forms of speech. See post, at 15
(opinion of SOTOMAYOR, J.); Legal Services Corporation v.
Velazquez, 531 U.S. 533, 543–544 (2001) (noting that the
First Amendment rules applicable to limited public forums
may be “instruc[tive]” “when the government establishes a
subsidy for specified ends”).
As for the concepts of “viewpoint discrimination” and
“content discrimination,” I agree with JUSTICE
SOTOMAYOR that the boundaries between them may be
difficult to discern. Post, at 10; see Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U.S. 819, 831 (1995)
(“[T]he distinction is not a precise one”). Even so, it is
hard to see how a statute prohibiting the registration of
only highly vulgar or obscene words discriminates based
on “viewpoint.” Of course, such words often evoke power-
ful emotions. Standing by themselves, however, these
Cite as: 588 U. S. ____ (2019) 5
Opinion of BREYER, J.
words do not typically convey any particular viewpoint.
See FCC v. Pacifica Foundation, 438 U.S. 726, 746, n. 22
(1978) (noting that the Government’s regulation of vulgar
words was based not on “point of view,” but on “the way in
which [speech] is expressed”). Moreover, while a re-
striction on the registration of highly vulgar words argu-
ably places a content-based limit on trademark registration,
it is hard to see why that label should be outcome-
determinative here, for regulations governing trademark
registration “inevitably involve content discrimination.”
Reed, 576 U. S., at ___ (opinion of BREYER, J.) (slip op., at
3); see Tam, 582 U. S., at ___ (opinion of Kennedy, J.)
(slip op., at 6) (noting that the constitutionality of some
content-based trademark restrictions is “well settled”);
Katyal, Trademark Intersectionality, 57 UCLA L. Rev.
1601, 1602 (2010) (noting that trademark law is “indelibly
rooted in content-based considerations”).
In short, the trademark statute does not clearly fit
within any of the existing outcome-determinative catego-
ries. Why, then, should we rigidly adhere to these catego-
ries? Rather than puzzling over categorization, I believe
we should focus on the interests the First Amendment
protects and ask a more basic proportionality question:
Does “the regulation at issue wor[k] harm to First
Amendment interests that is disproportionate in light of
the relevant regulatory objectives”? Reed, 576 U. S., at ___
(opinion of BREYER, J.) (slip op., at 4).
II
Based on this proportionality analysis, I would conclude
that the statute at issue here, as interpreted by JUSTICE
SOTOMAYOR, does not violate the First Amendment.
How much harm to First Amendment interests does a
bar on registering highly vulgar or obscene trademarks
work? Not much. The statute leaves businesses free to
use highly vulgar or obscene words on their products, and
6 IANCU v. BRUNETTI
Opinion of BREYER, J.
even to use such words directly next to other registered
marks. Indeed, a business owner might even use a vulgar
word as a trademark, provided that he or she is willing to
forgo the benefits of registration. See post, at 2 (opinion
of SOTOMAYOR, J.); Tam, 582 U. S., at ___–___ (slip op.,
at 4–5).
Moreover, the field at issue here, trademark law, is a
highly regulated one with a specialized mission: to “hel[p]
consumers identify goods and services that they wish to
purchase, as well as those they want to avoid.” Id., at ___
(slip op., at 2). As I have noted, that mission, by its very
nature, requires the Government to impose limitations on
speech. Supra, at 5. Trademark law therefore forbids the
registration of certain types of words—for example, those
that will likely “cause confusion,” or those that are “merely
descriptive.” 15 U.S. C. §§1052(d), (e). For that reason,
an applicant who seeks to register a mark should not
expect complete freedom to say what she wishes, but
should instead expect linguistic regulation.
Now consider, by way of contrast, the Government’s
interests in barring the registration of highly vulgar or
obscene trademarks. For one thing, when the Government
registers a mark, it is necessarily “involv[ed] in promot-
ing” that mark. Post, at 18 (opinion of SOTOMAYOR, J.).
The Government has at least a reasonable interest in
ensuring that it is not involved in promoting highly vulgar
or obscene speech, and that it will not be associated with
such speech.
For another, scientific evidence suggests that certain
highly vulgar words have a physiological and emotional
impact that makes them different in kind from most other
words. See M. Mohr, Holy S***: A Brief History of Swear-
ing 252 (2013) (Mohr) (noting the “emotional impact” of
certain profane words that “excite the lower-brain circuitry
responsible for emotion,” resulting in “electrical impulses
that can be measured in the skin”). These vulgar words
Cite as: 588 U. S. ____ (2019) 7
Opinion of BREYER, J.
originate in a different part of our brains than most other
words. Id., at 250. And these types of swear words tend
to attract more attention and are harder to forget than
other words. See Jay, Caldwell-Harris, & King, Recalling
Taboo and Nontaboo Words, 121 Am. J. Psych. 83, 83–86
(2008) (collecting research). Notably, that has remained
true even as the list of offensive swear words has changed
over time: In the last few centuries, the list has evolved
away from words of religious disrespect and toward words
that are sexually explicit or that crudely describe bodily
functions. Mohr 253. And the list of swear words may be
evolving yet again, perhaps in the direction of including
race-based epithets. Id., at 254, 256.
These attention-grabbing words, though financially
valuable to some businesses that seek to attract interest in
their products, threaten to distract consumers and disrupt
commerce. And they may lead to the creation of public
spaces that many will find repellant, perhaps on occasion
creating the risk of verbal altercations or even physical
confrontations. (Just think about how you might react if
you saw someone wearing a t-shirt or using a product
emblazoned with an odious racial epithet.) The Govern-
ment thus has an interest in seeking to disincentivize the
use of such words in commerce by denying the benefit of
trademark registration. Cf. Brandenburg v. Ohio, 395
U.S. 444, 447 (1969) (per curiam) (permitting regulation
of words “directed to inciting or producing imminent law-
less action” and “likely to incite or produce such action”).
Finally, although some consumers may be attracted to
products labeled with highly vulgar or obscene words,
others may believe that such words should not be dis-
played in public spaces where goods are sold and where
children are likely to be present. They may believe that
trademark registration of such words could make it more
likely that children will be exposed to public displays
involving such words. To that end, the Government may
8 IANCU v. BRUNETTI
Opinion of BREYER, J.
have an interest in protecting the sensibilities of children
by barring the registration of such words. See Denver
Area Ed. Telecommunications Consortium, Inc. v. FCC,
518 U.S. 727, 743 (1996) (plurality opinion) (noting the
Government’s interest in “protec[ting] children from expo-
sure to patently offensive sex-related material”); Ginsberg
v. New York, 390 U.S. 629, 640 (1968) (noting the gov-
ernment’s “interest in the well-being of its youth”).
The upshot of this analysis is that the narrowing con-
struction articulated by JUSTICE SOTOMAYOR risks some
harm to First Amendment interests, but not very much.
And applying that interpretation seems a reasonable
way—perhaps the only way—to further legitimate gov-
ernment interests. Of course, there is a risk that the
statute might be applied in a manner that stretches it
beyond the few vulgar words that are encompassed by the
narrow interpretation JUSTICE SOTOMAYOR sets forth.
That risk, however, could be mitigated by internal agency
review to ensure that agency officials do not stray beyond
their mandate. In any event, I do not believe that this risk
alone warrants the facial invalidation of this statute.
I would conclude that the prohibition on registering
“scandalous” marks does not “wor[k] harm to First
Amendment interests that is disproportionate in light of
the relevant regulatory objectives.” Reed, 576 U. S., at ___
(opinion of BREYER, J.) (slip op., at 4). I would therefore
uphold this part of the statute. I agree with the Court,
however, that the bar on registering “immoral” marks
violates the First Amendment. Because JUSTICE
SOTOMAYOR reaches the same conclusions, using roughly
similar reasoning, I join her opinion insofar as it is con-
sistent with the views set forth here.
Cite as: 588 U. S. ____ (2019) 1
Opinion of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–302
_________________
ANDREI IANCU, UNDER SECRETARY OF COMMERCE
FOR INTELLECTUAL PROPERTY AND DIRECTOR,
PATENT AND TRADEMARK OFFICE,
PETITIONER v. ERIK BRUNETTI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 24, 2019]
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins,
concurring in part and dissenting in part.
The Court’s decision today will beget unfortunate re-
sults. With the Lanham Act’s scandalous-marks provi-
sion, 15 U.S. C. §1052(a), struck down as unconstitutional
viewpoint discrimination, the Government will have no
statutory basis to refuse (and thus no choice but to begin)
registering marks containing the most vulgar, profane, or
obscene words and images imaginable.
The coming rush to register such trademarks—and the
Government’s immediate powerlessness to say no—is
eminently avoidable. Rather than read the relevant text
as the majority does, it is equally possible to read that
provision’s bar on the registration of “scandalous” marks
to address only obscenity, vulgarity, and profanity. Such a
narrowing construction would save that duly enacted
legislative text by rendering it a reasonable, viewpoint-
neutral restriction on speech that is permissible in the
context of a beneficial governmental initiative like the
trademark-registration system. I would apply that nar-
rowing construction to the term “scandalous” and accord-
ingly reject petitioner Erik Brunetti’s facial challenge.
2 IANCU v. BRUNETTI
Opinion of SOTOMAYOR, J.
I
Trademark registration, as the majority notes, is not
required for using, owning, or suing others for infringing a
trademark. Rather, the trademark-registration system is
an ancillary system set up by the Government that confers
a small number of noncash benefits on trademark-holders
who register their marks. See ante, at 2.
The Government need not provide this largely commer-
cial benefit at all. Once the Government does provide the
benefit, however, it may not restrict access on the basis of
the viewpoint expressed by the relevant mark. See ante,
at 4–5. For that reason, the Court concluded in Matal v.
Tam, 582 U. S. ___ (2017), that §1052(a)’s provision direct-
ing the U. S. Patent and Trademark Office (PTO) to deny
registration to “disparag[ing]” trademarks was unconstitu-
tional. This case centers on a neighboring set of re-
strictions: §1052(a)’s provision barring registration of
marks featuring “immoral . . . or scandalous matter.”
The majority finds viewpoint discrimination here by
treating the terms “scandalous” and “immoral” as compris-
ing a unified standard that allows messages “aligned with
conventional moral standards” but forbids messages “hos-
tile to” such standards. See ante, at 6. While the major-
ity’s interpretation of the statute is a reasonable one, it is
not the only reasonable one.
A
As the majority notes, there are dictionary definitions
for both “immoral” and “scandalous” that do suggest a
viewpoint-discriminatory meaning. See ante, at 5–6. And
as for the word “immoral,” I agree with the majority that
there is no tenable way to read it that would ameliorate
the problem. The word clearly connotes a preference for
“rectitude and morality” over its opposite. See ante, at 5.
It is with regard to the word “scandalous” that I part
ways with the majority. Unquestionably, “scandalous” can
Cite as: 588 U. S. ____ (2019) 3
Opinion of SOTOMAYOR, J.
mean something similar to “immoral” and thus favor some
viewpoints over others. See ante, at 6. But it does not
have to be read that way. To say that a word or image is
“scandalous” can instead mean that it is simply indecent,
shocking, or generally offensive. See Funk & Wagnalls
New Standard Dictionary 2186 (1944) (Funk & Wagnalls)
(“shocking to the sense of truth, decency, or propriety;
disgraceful, offensive” (emphasis added)); Webster’s New
International Dictionary 2229 (1942) (“exciting reproba-
tion; calling out condemnation”); 9 Oxford English Diction-
ary 175 (1933) (“Of the nature of, or causing, a ‘stumbling-
block’ or occasion of offence”); 8 Century Dictionary
and Cyclopedia 5374 (1911) (Century Dictionary) (“Caus-
ing scandal or offense; exciting reproach or reprobation;
extremely offensive to the sense of duty or propriety;
shameful; shocking”); see also Webster’s New College
Dictionary 1008 (3d ed. 2005) (“shocking or offensive”).
That offensiveness could result from the views expressed,
but it could also result from the way in which those views
are expressed: using a manner of expression that is
“shocking to [one’s] sense of . . . decency,” Funk & Wag-
nalls 2186, or “extremely offensive to the sense of . . .
propriety,” 8 Century Dictionary 5374.
The word “scandalous” on its own, then, is ambiguous:
It can be read broadly (to cover both offensive ideas and
offensive manners of expressing ideas), or it can be read
narrowly (to cover only offensive modes of expression).
That alone raises the possibility that a limiting construc-
tion might be appropriate. But the broader text confirms
the reasonableness of the narrower reading, because the
word “scandalous” appears in the statute alongside other
words that can, and should, be read to constrain its scope.
It is foundational “that a statute is to be read as a
whole, since the meaning of statutory language, plain or
not, depends on context.” King v. St. Vincent’s Hospital,
502 U.S. 215, 221 (1991) (citation omitted). “ ‘Words are
4 IANCU v. BRUNETTI
Opinion of SOTOMAYOR, J.
not pebbles in alien juxtaposition; they have only a com-
munal existence; and not only does the meaning of each
interpenetrate the other, but all in their aggregate take
their purport from the setting in which they are used.’ ”
Ibid. (quoting NLRB v. Federbush Co., 121 F.2d 954, 957
(CA2 1941) (L. Hand, J.)). Accordingly, and relatedly,
courts should, to the extent possible, read statutes so that
“ ‘no clause, sentence, or word shall be superfluous, void, or
insignificant.’ ” TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001).1
Here, Congress used not only the word “scandalous,” but
also the words “immoral” and “disparage,” in the same
block of statutory text—each as a separate feature that
could render a mark unregistrable. See §1052(a). Tam
already decided that “disparage” served to prohibit marks
that were offensive because they derided a particular
person or group. See 582 U. S., at ___ (opinion of ALITO,
J.) (slip op., at 22) (“It denies registration to any mark that
is offensive to a substantial percentage of the members of
any group”); id., at ___ (opinion of Kennedy, J.) (slip op., at
2) (“[A]n applicant may register a positive or benign mark
but not a derogatory one”). That defines one of the three
words. Meanwhile, as the majority explains, the word
“immoral” prohibits marks that are offensive because they
transgress widely held moral beliefs. See ante, at 5. That
defines a second of the three words.
With marks that are offensive because they are dispar-
aging and marks that are offensive because they are im-
moral already covered, what work did Congress intend for
——————
1 For example, McDonnell v. United States, 579 U. S. ___ (2016), in-
volved a statute that defined an “ ‘official act’ ” as “ ‘any decision or
action on any question, matter, cause, suit, proceeding or controversy.’ ”
Id., at ___ (slip op., at 13). The Court declined to read “ ‘question’ ” and
“ ‘matter’ ” as covering “a typical meeting, call, or event arranged by a
public official” because doing so would deprive the words “ ‘cause, suit,
proceeding or controversy’ ” of meaning. Id., at ___ (slip op., at 16).
Cite as: 588 U. S. ____ (2019) 5
Opinion of SOTOMAYOR, J.
“scandalous” to do? A logical answer is that Congress
meant for “scandalous” to target a third and distinct type
of offensiveness: offensiveness in the mode of communica-
tion rather than the idea. The other two words cover
marks that are offensive because of the ideas they express;
the “scandalous” clause covers marks that are offensive
because of the mode of expression, apart from any particu-
lar message or idea.
To be sure, there are situations in which it makes sense
to treat adjoining words as expressing the same or highly
similar concepts (even at the risk of some redundancy).
Cf. Swearingen v. United States, 161 U.S. 446, 450 (1896)
(construing “ ‘obscene, lewd or lascivious’ ” to have a uni-
fied meaning). That is essentially the approach that the
majority takes. See ante, at 6.2 But that is not the ap-
proach that Congress appears to have intended here. For
example, “scandalous” does not serve as a broader catchall
at the end of a list of similar words that all point in one
direction. E.g., Washington State Dept. of Social and
Health Servs. v. Guardianship Estate of Keffeler, 537 U.S.
371, 384 (2003). Nor is “scandalous” simply grouped
among a number of closely related terms that help define
its meaning. E.g., Gustafson v. Alloyd Co., 513 U.S. 561,
575 (1995).
The text of §1052, instead, is a grab bag: It bars the
registration of marks featuring “immoral, deceptive, or
scandalous matter,” as well as, inter alia, disparaging
marks, flags, insignias, mislabeled wines, and deceased
Presidents. See §§1052(a)–(e). This is not, in other words,
a situation in which Congress was simply being “verbos[e]
——————
2 That interpretive move appears to accord with the Federal Circuit
and the PTO’s past practice. Ante, at 2–3. Nevertheless, it is by no
means the only reasonable way to read this text, and indeed some
courts have suggested that “scandalous” can and should be applied
independently of “immoral,” see, e.g., In re McGinley, 660 F.2d 481,
485, n. 6 (CCPA 1981).
6 IANCU v. BRUNETTI
Opinion of SOTOMAYOR, J.
and proli[x],” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 236
(2011), using two synonyms in rapid-fire succession when
one would have done fine. Instead, “scandalous” and
“immoral” are separated by an unrelated word (“decep-
tive”) and mixed in with a lengthy series of other, unre-
lated concepts. The two therefore need not be interpreted as
mutually reinforcing under the Court’s precedents. See
Graham County Soil and Water Conservation Dist. v.
United States ex rel. Wilson, 559 U.S. 280, 288 (2010).
For that reason, while the majority offers a reasonable
reading of “scandalous,” it also unnecessarily and ill-
advisedly collapses the words “scandalous” and “immoral.”
Instead, it should treat them as each holding a distinct,
nonredundant meaning, with “immoral” covering marks
that are offensive because they transgress social norms,
and “scandalous” covering marks that are offensive be-
cause of the mode in which they are expressed.
What would it mean for “scandalous” in §1052(a) to
cover only offensive modes of expression? The most obvi-
ous ways—indeed, perhaps the only conceivable ways—in
which a trademark can be expressed in a shocking or
offensive manner are when the speaker employs obscenity,
vulgarity, or profanity.3 Obscenity has long been defined
by this Court’s decision in Miller v. California, 413 U.S.
15 (1973). See id., at 24–26. As for what constitutes
“scandalous” vulgarity or profanity, I do not offer a list,
but I do interpret the term to allow the PTO to restrict
(and potentially promulgate guidance to clarify) the small
group of lewd words or “swear” words that cause a visceral
reaction, that are not commonly used around children, and
that are prohibited in comparable settings.4 Cf. 18
——————
3 Other modes of expression, such as fighting words or extremely loud
noises, could also be called shocking or offensive in certain contexts, see
R. A. V. v. St. Paul, 505 U.S. 377, 386 (1992), but it is hard to see how
they would apply in the context of a trademark.
4 Although the Government represents, and case law and scholarship
Cite as: 588 U. S. ____ (2019) 7
Opinion of SOTOMAYOR, J.
U. S. C. §1464 (prohibiting “obscene, indecent, or profane
language” in radio communications); FCC v. Pacifica
Foundation, 438 U.S. 726, 746, and n. 22 (1978) (opinion
of Stevens, J.) (regulator’s objection to a monologue con-
taining various “four-letter words” was not to its “point of
view, but to the way in which it [wa]s expressed”); 46 CFR
§67.117(b)(3) (2018) (Coast Guard regulation prohibiting
vessel names that “contain” or are “phonetically identical
to obscene, indecent, or profane language, or to racial or
ethnic epithets”); see also Jacobs, The Public Sensibilities
Forum, 95 Nw. U. L. Rev. 1357, 1416–1417, and n. 432
(2001) (noting that “swear words” are “perhaps more than
any other categor[y] capable of specific articulation” and
citing one state agency’s list). Of course, “scandalous”
offers its own limiting principle: if a word, though not
exactly polite, cannot be said to be “scandalous”—e.g.,
“shocking” or “extremely offensive,” 8 Century Dictionary
5374—it is clearly not the kind of vulgarity or profanity
that Congress intended to target. Everyone can think of a
small number of words (including the apparent homonym
of Brunetti’s mark) that would, however, plainly qualify.5
——————
appear to confirm, that “scandalous” in §1052(a) has often been applied
to cover this kind of content, see Brief for United States 27; In re
Boulevard Entertainment, Inc., 334 F.3d 1336, 1340 (CA Fed. 2003);
Snow, Denying Trademark for Scandalous Speech, 51 U. C. D. L. Rev.
2331, 2339 (2018) (Snow), the majority notes that the PTO has hardly
amassed a perfect track record of consistency, see ante, at 6–8. Be that
as it may, the Government undeniably receives a large volume of
trademark applications that easily would fit under this rubric (exam-
ples of which I will spare the reader). See In re Brunetti, 877 F.3d
1330, 1355 (CA Fed. 2017) (noting an appendix containing marks
denied registration “whose offensiveness cannot be reasonably ques-
tioned”). As a result of today’s ruling, all of those marks will now
presumably have to be registered.
5 There is at least one particularly egregious racial epithet that would
fit this description as well. While Matal v. Tam, 582 U. S. ___ (2017),
removed a statutory basis to deny the registration of racial epithets in
general, the Government represented at oral argument that it is
8 IANCU v. BRUNETTI
Opinion of SOTOMAYOR, J.
B
A limiting construction like the one just discussed is
both appropriate in this context and consistent with past
precedent. First, while a limiting construction must al-
ways be at least reasonable, there are contexts in which
imposing such a construction is more appropriate than
others. The most obvious example of a setting where more
caution is required is in the realm of criminal statutes,
where considerations such as the prohibition against
vagueness and the rule of lenity come into play. See Reno
v. American Civil Liberties Union, 521 U.S. 844, 872
(1997) (noting that “[t]he severity of criminal sanctions”
can increase First Amendment concerns); Board of Airport
Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S.
569, 575–576 (1987) (declining to apply a limiting con-
struction to a provision that banned “ ‘First Amendment
activities’ ” from an airport and noting that the limiting
construction proposed would “ ‘confe[r] on police a virtually
unrestrained power to arrest and charge persons with a
violation,’ ” leading to “ ‘self-evident’ ” “ ‘opportunity for
abuse’ ”). Here, however, the question is only whether the
Government must be forced to provide the ancillary bene-
fit of trademark registration to pre-existing trademarks
that use even the most extreme obscenity, vulgarity, or
profanity. The stakes are far removed from a situation in
which, say, Brunetti was facing a threat to his liberty, or
even his right to use and enforce his trademark in
commerce.
Second, the Court has in the past accepted or applied
similarly narrow constructions to avoid constitutional
——————
holding in abeyance trademark applications that use that particular
epithet. See Tr. of Oral Arg. 61. As a result of today’s ruling, the
Government will now presumably be compelled to register marks
containing that epithet as well rather than treating it as a “scandalous”
form of profanity under §1052(a).
Cite as: 588 U. S. ____ (2019) 9
Opinion of SOTOMAYOR, J.
infirmities. In Chaplinsky v. New Hampshire, 315 U.S.
568 (1942), for example, the Court accepted the New
Hampshire Supreme Court’s narrowing of a state statute
covering “ ‘any offensive, derisive or annoying word,’ ” id.,
at 569, to reach only those words that would strike the
average person as being “plainly likely to cause a breach of
the peace by the addressee,” id., at 573. “[T]hus con-
strued,” this Court decided, the statute did not violate the
right to free speech. Ibid.; see also Boos v. Barry, 485
U.S. 312, 329–330 (1988) (accepting Court of Appeals’
construction of a statute making it illegal “ ‘to congregate
within 500 feet of any [embassy, legation, or consulate]
and refuse to disperse after having been ordered so to do
by the police’ ” to reach only “congregations that are di-
rected at an embassy” and “ ‘only when the police reason-
ably believe that a threat to the security or peace of the
embassy is present’ ”).
In Frisby v. Schultz, 487 U.S. 474 (1988), the Court
addressed an ordinance that prohibited “ ‘picketing before
or about the residence or dwelling of any individual.’ ” Id.,
at 477. The Court construed the statute to reach only
“focused picketing taking place solely in front of a particu-
lar residence.” Id., at 483. Given that “narrow scope,” the
statute was not facially unconstitutional. Id., at 488; see
also In re Brunetti, 877 F.3d 1330, 1358 (CA Fed. 2017)
(Dyk, J., concurring in judgment) (noting this Court’s
narrow constructions of federal obscenity statutes).
Taking the word “scandalous” to target only those
marks that employ an offensive mode of expression follows
a similar practice. To be sure, the word could be read
more broadly, thereby sweeping unconstitutionally into
viewpoint discrimination. And imposing a limiting con-
struction is, of course, “not a license for the judiciary to
rewrite language enacted by the legislature.” United
States v. Albertini, 472 U.S. 675, 680 (1985). But where
the Court can reasonably read a statute like this one to
10 IANCU v. BRUNETTI
Opinion of SOTOMAYOR, J.
save it, the Court should do so. See Stern v. Marshall, 564
U.S. 462, 477–478 (2011); NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 30 (1937).
II
Adopting a narrow construction for the word “scandal-
ous”—interpreting it to regulate only obscenity, vulgarity,
and profanity—would save it from unconstitutionality.
Properly narrowed, “scandalous” is a viewpoint-neutral
form of content discrimination that is permissible in the
kind of discretionary governmental program or limited
forum typified by the trademark-registration system.
A
Content discrimination occurs whenever a government
regulates “particular speech because of the topic discussed
or the idea or message expressed.” Reed v. Town of Gil-
bert, 576 U. S. ___, ___ (2015) (slip op., at 6); see also Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989) (“Gov-
ernment regulation of expressive activity is content neu-
tral so long as it is ‘justified without reference to the con-
tent of the regulated speech’ ”). Viewpoint discrimination
is “an egregious form of content discrimination” in which
“the government targets not subject matter, but particular
views taken by speakers on a subject.” Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U.S. 819, 829
(1995).
While the line between viewpoint-based and viewpoint-
neutral content discrimination can be “slippery,” see
Corbin, Mixed Speech: When Speech Is Both Private and
Governmental, 83 N. Y. U. L. Rev. 605, 651 (2008), it is in
any event clear that a regulation is not viewpoint discrim-
inatory (or even content discriminatory) simply because it
has an “incidental effect” on a certain subset of views.
Ward, 491 U.S., at 791. Some people, for example, may
have the viewpoint that society should be more sexually
Cite as: 588 U. S. ____ (2019) 11
Opinion of SOTOMAYOR, J.
liberated and feel that they cannot express that view
sufficiently without the use of pornographic words or
images. That does not automatically make a restriction on
pornography into viewpoint discrimination, despite the
fact that such a restriction limits communicating one’s
views on sexual liberation in that way. See ibid.; Renton
v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986).
Restrictions on particular modes of expression do not
inherently qualify as viewpoint discrimination; they are
not by nature examples of “the government target[ing] . . .
particular views taken by speakers on a subject.” Rosen-
berger, 515 U.S., at 829. For example, a ban on lighting
fires in the town square does not facially violate the First
Amendment simply because it makes it marginally harder
for would-be flag-burners to express their views in that
place. See R. A. V. v. St. Paul, 505 U.S. 377, 385 (1992).
By the same token, “fighting words are categorically ex-
cluded from the protection of the First Amendment” not
because they have no content or express no viewpoint
(often quite the opposite), but because “their content em-
bodies a particularly intolerable (and socially unnecessary)
mode of expressing whatever idea the speaker wishes to
convey.” Id., at 393; see id., at 385–386; cf. Bolger v.
Youngs Drug Products Corp., 463 U.S. 60, 84 (1983) (Ste-
vens, J., concurring in judgment) (“It matters whether a
law regulates communications for their ideas or for their
style”).
A restriction on trademarks featuring obscenity, vulgar-
ity, or profanity is similarly viewpoint neutral, though it is
naturally content-based.6 See R. A. V., 505 U.S., at 383
——————
6 Of course, obscenity itself is subject to a longstanding exception to
First Amendment protection, see Brown v. Entertainment Merchants
Assn., 564 U.S. 786, 791 (2011), so it is proscribable in any event. As
for vulgarity and profanity, however, they are not subject to any such
exception, and a regulation like §1052(a)’s ban on the registration of
scandalous marks is not “ ‘justified without reference to the content of
12 IANCU v. BRUNETTI
Opinion of SOTOMAYOR, J.
(kinds of speech like “obscenity, defamation, etc.” may “be
regulated because of their constitutionally proscribable
content” (emphasis deleted)); see also Bethel School Dist.
No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (treating
punishment of “offensively lewd and indecent speech” as
viewpoint neutral); Pacifica, 438 U.S., at 745–746, and
n. 22 (treating regulation of profane monologue as view-
point neutral). Indeed, the statute that the Court upheld
in Chaplinsky itself had been construed to cover, among
other kinds of “disorderly words,” “profanity, obscenity
and threats,” 315 U.S., at 573, despite the fact that such
words had been used in that case to communicate an
expressive message, id., at 574. To treat a restriction on
vulgarity, profanity, or obscenity as viewpoint discrimina-
tion would upend decades of precedent.7
Brunetti invokes Cohen v. California, 403 U.S. 15
(1971), to argue that the restriction at issue here is view-
point discriminatory. But Cohen—which did not employ
the precise taxonomy that is more common today—does
not reach as far as Brunetti wants. Cohen arose in the
criminal context: Cohen had been arrested and imprisoned
under a California criminal statute targeting disturbances
of the peace because he was “wearing a jacket bearing the
words ‘F[***] the Draft.’ ” Id., at 16. The Court held that
applying that statute to Cohen because of his jacket vio-
lated the First Amendment. Id., at 26. But the Court did
——————
the regulated speech’ ” in the way that a simple regulation of time,
place, or manner is. Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (emphasis deleted).
7 It would also risk destabilizing government practice in a number of
other contexts. Governments regulate vulgarity and profanity, for
example, on city-owned buses and billboards, e.g., American Freedom
Defense Initiative v. Massachusetts Bay Transp. Auth., 989 F. Supp. 2d
182, 183 (Mass. 2013) (noting such a prohibition), on registered vessels,
46 CFR §67.117(b)(3) (Coast Guard regulations), and at school events,
e.g., Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 677–678, 685
(1986) (upholding discipline of high school student).
Cite as: 588 U. S. ____ (2019) 13
Opinion of SOTOMAYOR, J.
not suggest that the State had targeted Cohen to suppress
his view itself (i.e., his sharp distaste for the draft), such
that it would have accepted an equally colorful statement
of praise for the draft (or hostility toward war protesters).
Rather, the Court suggested that the State had simply
engaged in what later courts would more precisely call
viewpoint-neutral content discrimination—it had regu-
lated “the form or content of individual expression.” Id., at
24; see id., at 25–26.
Cohen also famously recognized that “words are often
chosen as much for their emotive as their cognitive force,”
id., at 26, and that “one man’s vulgarity is another’s lyric,”
id., at 25. That is all consistent with observing that a
plain, blanket restriction on profanity (regardless of the
idea to which it is attached) is a viewpoint-neutral form of
content discrimination. The essence of Cohen’s discussion
is that profanity can serve to tweak (or amplify) the view-
point that a message expresses, such that it can be hard to
disentangle the profanity from the underlying message—
without the profanity, the message is not quite the same.
See id., at 25–26. But those statements merely reinforce
that profanity is still properly understood as protected
First Amendment content. See also R. A. V., 505 U.S., at
384–385. Cohen’s discussion does not also go further to
declare, as Brunetti suggests, that a provision that treats
all instances of profanity equally is nevertheless by nature
an instance of “the government target[ing] . . . particular
views taken by speakers on a subject.” Rosenberger, 515
U.S., at 829. To be sure, such a restriction could have the
incidental effect of tamping down the overall volume of
debate on all sides. But differential effects alone, as ex-
plained above, do not render a restriction viewpoint (or
even content) discriminatory. See Ward, 491 U.S., at
791–792.8
——————
8 That does not mean, of course, that a government may elude harsher
14 IANCU v. BRUNETTI
Opinion of SOTOMAYOR, J.
Cohen therefore does not resolve this case in Brunetti’s
favor. Yes, Brunetti has been, as Cohen was, subject to
content discrimination, but that content discrimination is
properly understood as viewpoint neutral. And whereas
even viewpoint-neutral content discrimination is (in all
but the most compelling cases, such as threats) impermis-
sible in the context of a criminal prosecution like the one
that Cohen faced, Brunetti is subject to such regulation
only in the context of the federal trademark-registration
system. I discuss next why that distinction matters.
B
While the Court has often subjected even viewpoint-
neutral content discrimination to strict constitutional
scrutiny, see, e.g., Reed, 576 U. S., at ___ (slip op., at 6),
there are contexts in which it does not, see, e.g., Rosen-
berger, 515 U.S., at 829–830. When that is the case, the
difference between viewpoint-based and viewpoint-neutral
content discrimination can be decisive. The federal
trademark-registration system is such a context.
Rights to a trademark itself arise through use, not
registration. Regardless of whether a trademark is regis-
tered, it can be used, owned, and enforced against would-
be infringers. See B&B Hardware, Inc. v. Hargis Indus-
tries, Inc., 575 U. S. ___, ___, ___ (2015) (slip op., at 3, 5).
Trademark registration, meanwhile, confers several ancil-
——————
scrutiny or invalidation of a regulation by simply claiming disinter-
est in a speaker’s message, see United States v. Eichman, 496 U.S.
310, 315–317 (1990), or by concealing an attempt to favor some views
over others in superficially neutral garb, see Renton v. Playtime Thea-
tres, Inc., 475 U.S. 41, 46–49 (1986); cf. Church of Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U.S. 520, 533–534 (1993). But there is no evidence
in the record from which to conclude that Congress enacted the scandalous-
marks provision in order to advantage certain views over others.
And where a denial of trademark registration by the PTO raises such a
concern, it would be proper for an applicant to bring an as-applied
challenge. See infra, at 18–19.
Cite as: 588 U. S. ____ (2019) 15
Opinion of SOTOMAYOR, J.
lary benefits on trademark-holders who meet Congress’
specifications, including for example, additional protec-
tions against infringers. See ante, at 2; Tam, 582 U. S., at
___ (slip op., at 5). Registering a mark in the Govern-
ment’s searchable register puts the world on notice
(whether actual or constructive) that a party is asserting
ownership of that mark.9 Registration, in short, is a help-
ful system, but it is one that the Government is under no
obligation to establish and that is collateral to the exist-
ence and use of trademarks themselves. There is no evi-
dence that speech or commerce would be endangered if the
Government were not to provide it at all.
When the Court has talked about governmental initia-
tives like this one before, it has usually used one of two
general labels. In several cases, the Court has treated
such initiatives as a limited public (or nonpublic) forum.
See, e.g., Christian Legal Soc. Chapter of Univ. of Cal.,
Hastings College of Law v. Martinez, 561 U.S. 661, 669–
670, 682 (2010) (“ ‘Registered Student Organization’ ”
program providing various financial and nonfinancial
benefits to recognized law-school student groups); Rosen-
berger, 515 U.S., at 823–824, 829–830 (“Student Activities
Fund” for registered campus student groups); Cornelius v.
NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788,
790–791, 799–801, 806 (1985) (“Combined Federal Cam-
paign” literature enabling approved charitable organiza-
tions to solicit donations from federal employees). In other
situations, the Court has discussed similar initiatives as
government programs or subsidies. See, e.g., Legal Ser-
vices Corporation v. Velazquez, 531 U.S. 533, 536, 543–
544 (2001) (government program distributing funds to
legal-services organizations); National Endowment for
——————
9 See 15 U.S. C. §1072; U. S. Patent & Trademark Office, Search
Trademark Database, https://www.uspto.gov/trademarks-application-
process/search-trademark-database (as last visited June 20, 2019).
16 IANCU v. BRUNETTI
Opinion of SOTOMAYOR, J.
Arts v. Finley, 524 U.S. 569, 573, 585–587 (1998) (compet-
itive government grant-making program to support the
arts).10 In each of these situations, a governmental body
established an initiative that supported some forms of
expression without restricting others. Some speakers
were better off, but no speakers were worse off.
Regardless of the finer distinctions between these labels,
reasonable, viewpoint-neutral content discrimination is
generally permissible under either framework. See Chris-
tian Legal Soc., 561 U.S., at 679 (“Any access barrier
must be reasonable and viewpoint neutral”); Velazquez,
531 U.S., at 543–544, 548–549 (analogizing to limited-
forum cases and explaining that “[w]here private speech is
involved, even Congress’ antecedent funding decision
cannot be aimed at the suppression of ideas thought inim-
ical to the Government’s own interest”); see also Ysursa v.
Pocatello Ed. Assn., 555 U.S. 353, 355 (2009) (finding
government conduct that did not restrict speech but sim-
ply “decline[d] to promote” it valid where it was “reasonable
in light of the State’s interest”). Perhaps for that reason,
the Court has often discussed the two frameworks as at
least closely related. See, e.g., Christian Legal Society,
561 U.S., at 682 (“[T]his case fits comfortably within the
limited-public forum category, for [the plaintiff], in seek-
——————
10 In Tam, four Justices concluded that cash-subsidy programs like
the one in Finley were “not instructive in analyzing” trademark regis-
tration. 582 U. S., at ___ (opinion of ALITO, J.) (slip op., at 20). Trade-
mark registration differs, of course, because any “subsidy” comes in the
form of a noncash benefit, but that difference does not foreclose under-
standing the registration system as a beneficial, noncash governmental
program. No Justice, meanwhile, rejected the limited-public-forum
analogy, see id., at ___–___, and n. 16 (slip op., at 22–23, and n. 16)
(calling such cases “[p]otentially more analogous” and reserving the
question), and scholars have noted arguments for adopting it. See Snow
2364–2366; Katyal, Trademark Intersectionality, 57 UCLA L. Rev.
1601, 1676–1681 (2010); Lefstin, Note, Does the First Amendment Bar
Cancellation of REDSKINS? 52 Stan. L. Rev. 665, 706–707 (2000).
Cite as: 588 U. S. ____ (2019) 17
Opinion of SOTOMAYOR, J.
ing what is effectively a state subsidy, faces only indirect
pressure . . . ”); Velazquez, 531 U.S., at 544 (“As this suit
involves a subsidy, limited forum cases . . . may not be
controlling in a strict sense, yet they do provide some
instruction”).
Whichever label one chooses here, the federal system of
trademark registration fits: It is, in essence, an opportun-
ity to include one’s trademark on a list and thereby secure
the ancillary benefits that come with registration.11 Just
as in the limited-forum and government-program cases,
some speakers benefit, but no speakers are harmed.
Brunetti, for example, can use, own, and enforce his mark
regardless of whether it has been registered. Whether he
may register his mark can therefore turn on reasonable,
viewpoint-neutral content regulations.12
C
Prohibiting the registration of obscene, profane, or
vulgar marks qualifies as reasonable, viewpoint-neutral,
content-based regulation. Apart from any interest in
regulating commerce itself, the Government has an inter-
est in not promoting certain kinds of speech, whether
because such speech could be perceived as suggesting
governmental favoritism or simply because the Govern-
ment does not wish to involve itself with that kind of
speech. See, e.g., Ysursa, 555 U.S., at 359–360; Cornelius,
473 U.S., at 809. While “there is no evidence that the
——————
11 Not every registration system would necessarily fit the same bill,
whether because not every such system invites expressive content like
trademarks or simply because other forms of registration may not be so
ancillary as to qualify solely as a “benefit.”
12 Though I do not address the constitutionality of provisions not be-
fore the Court, I note as well that the “scandalous” bar in §1052(a) is
hardly the only provision in §1052 that could be characterized as
content discriminatory. See, e.g., §1052(b) (no flags or insignias);
§1052(c) (no unapproved markers of deceased U. S. Presidents during
the lives of their spouses).
18 IANCU v. BRUNETTI
Opinion of SOTOMAYOR, J.
public associates the contents of trademarks with the
Federal Government,” Tam, 582 U. S., at ___ (slip op., at
17), registration nevertheless entails Government in-
volvement in promoting a particular mark. Registration
requires the Government to publish the mark, as well as
to take steps to combat international infringement. See 15
U.S. C. §§1062, 1124; see also Brief for United States 35.
The Government has a reasonable interest in refraining
from lending its ancillary support to marks that are ob-
scene, vulgar, or profane. Cf. Hustler Magazine, Inc. v.
Falwell, 485 U.S. 46, 56 (1988) (“[S]peech that is vulgar,
offensive, and shocking is not entitled to absolute constitu-
tional protection under all circumstances” (internal quota-
tion marks omitted)).
III
“The cardinal principle of statutory construction is to
save and not to destroy.” Jones & Laughlin Steel Corp.,
301 U.S., at 30; see also Hooper v. California, 155 U.S.
648, 657 (1895) (“The elementary rule is that every rea-
sonable construction must be resorted to, in order to save
a statute from unconstitutionality”). In directing the PTO
to deny the ancillary benefit of registration to trademarks
featuring “scandalous” content, Congress used a word that
is susceptible of different meanings. The majority’s read-
ing would render the provision unconstitutional; mine
would save it. Under these circumstances, the Court
ought to adopt the narrower construction, rather than
permit a rush to register trademarks for even the most
viscerally offensive words and images that one can
imagine.13
——————
13 As noted above, I agree with the majority that §1052(a)’s bar on the
registration of “immoral” marks is unconstitutional viewpoint discrimi-
nation. See supra, at 2. I would simply sever that provision and
uphold the bar on “scandalous” marks. See Reno v. American Civil
Liberties Union, 521 U.S. 844, 882–883 (1997); Brockett v. Spokane
Cite as: 588 U. S. ____ (2019) 19
Opinion of SOTOMAYOR, J.
That said, I emphasize that Brunetti’s challenge is a
facial one. That means that he must show that “ ‘a sub-
stantial number of [the scandalous-marks provision’s]
applications are unconstitutional, judged in relation to the
[provision’s] plainly legitimate sweep.’ ” United States v.
Stevens, 559 U.S. 460, 473 (2010). With “scandalous”
narrowed to reach only obscene, profane, and vulgar con-
tent, the provision would not be overly broad. Cf. Frisby,
487 U.S., at 488 (rejecting a facial challenge after adopt-
ing a limiting construction); Boos, 485 U.S., at 331 (same).
Even so, hard cases would remain, and I would expect
courts to take seriously as-applied challenges demonstrat-
ing a danger that the provision had been used to restrict
speech based on the views expressed rather than the mode
of expression.14 Cf. Finley, 524 U.S., at 587 (reserving the
possibility of as-applied challenges).
Freedom of speech is a cornerstone of our society, and
the First Amendment protects Brunetti’s right to use
words like the one at issue here. The Government need
not, however, be forced to confer on Brunetti’s trademark
(and some more extreme) the ancillary benefit of trade-
mark registration, when “scandalous” in §1052(a) can
reasonably be read to bar the registration of only those
marks that are obscene, vulgar, or profane. Though I
concur as to the unconstitutionality of the term “immoral”
in §1052(a), I respectfully dissent as to the term “scandal-
ous” in the same statute and would instead uphold it
under the narrow construction discussed here.
——————
Arcades, Inc., 472 U.S. 491, 504–507 (1985); see also Tam, 582 U. S., at
___ (slip op., at 26) (striking down only the disparagement clause).
14 The majority adverts to details in the record that could call into
question whether the PTO engaged in viewpoint discrimination in this
very case. See ante, at 3. Because a facial challenge is the only chal-
lenge before the Court, I do not address whether an as-applied chal-
lenge could have merit here.