Iancu v. Brunetti

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, 108 S.Ct. 636, 98 L.Ed.2d 782 (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, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) (noting our "duty" to adopt a " 'fairly possible' " construction by which constitutional doubts " 'may be avoided' " (quoting United States v. Thirty-Seven Photographs , 402 U.S. 363, 369, 91 S.Ct. 1400, 28 L.Ed.2d 822 (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 2310 - 2312 (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 narrowly 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 clothing line that includes apparel for children and infants. 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 example 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. ----, ----, 135 S.Ct. 2218, 2235, 192 L.Ed.2d 236 (2015) (opinion concurring in judgment).

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 discriminatory" or that is subject to "strict scrutiny," we sometimes find the regulation to be constitutional after weighing the competing interests involved. See, e.g. , Morse v. Frederick , 551 U.S. 393, 397, 127 S.Ct. 2618, 168 L.Ed.2d 290 (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, ----, 135 S.Ct. 1656, 1665-1666, 191 L.Ed.2d 570 (2015) (explaining that although " 'it is the rare case' " when a statute satisfies strict scrutiny, "those cases do arise" (quoting Burson v. Freeman , 504 U.S. 191, 211, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (plurality opinion))).

Unfortunately, the Court has sometimes applied these rules-especially the category of "content discrimination"-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 First Amendment protects. See *2305Janus v. State, County, and Municipal Employees , 585 U. S. ----, ---- - ----, 138 S.Ct. 2448, 2501-2502, 201 L.Ed.2d 924 (2018) (KAGAN, J., dissenting); Sorrell v. IMS Health Inc. , 564 U.S. 552, 589-592, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011) (BREYER, J., dissenting); see generally Reed , 576 U. S., at ---- - ----, 135 S.Ct., at 2234-2236 (opinion of BREYER, J.).

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 previously 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, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (opinion concurring in judgment); see Reed , 576 U. S., at ----, 135 S.Ct., at 2235-2236 (opinion concurring in judgment) (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. ----, ----, 137 S.Ct. 1744, 1764, 198 L.Ed.2d 366 (2017) (opinion of ALITO, J.) (leaving open the question whether trademarks are commercial speech); id. , at ----, 137 S.Ct., at 1753 (opinion of Kennedy, J.)(same). There may be reasons for doubt on that score. Trademarks, 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, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000).

The trademark statute cannot easily be described as a regulation of "government speech," either. Tam , 582 U. S., at ---- - ----, 137 S.Ct., at 1757-1760. The Government, however, may be loosely associated with the mark because it registers 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, 103 S.Ct. 948, 74 L.Ed.2d 794 (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 2316 (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, 130 S.Ct. 2971, 177 L.Ed.2d 838 (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 2316 (opinion of SOTOMAYOR, J.); Legal Services Corporation v. Velazquez , 531 U.S. 533, 543-544, 121 S.Ct. 1043, 149 L.Ed.2d 63 (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,"

*2306I agree with Justice SOTOMAYOR that the boundaries between them may be difficult to discern. Post , at 2313; see Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819, 831, 115 S.Ct. 2510, 132 L.Ed.2d 700 (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 powerful emotions. Standing by themselves, however, these words do not typically convey any particular viewpoint. See FCC v. Pacifica Foundation , 438 U.S. 726, 746, n. 22, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (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 restriction on the registration of highly vulgar words arguably 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 ----, 135 S.Ct., at 2234-2235 (opinion of BREYER, J.); see Tam , 582 U. S., at ----, 137 S.Ct., at 1768 (opinion of Kennedy, J.) (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 categories. Why, then, should we rigidly adhere to these categories? 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 ----, 135 S.Ct., at 2235-2236 (opinion of BREYER, J.)

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 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 2308 - 2309 (opinion of SOTOMAYOR, J.); Tam , 582 U. S., at ---- - ----, 137 S.Ct., at 1752-1753.

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 ----, 137 S.Ct., at 1751. As I have noted, that mission, by its very nature, requires the Government to impose limitations on speech. Supra , at 2306. 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.

*2307For one thing, when the Government registers a mark, it is necessarily "involv[ed] in promoting" that mark. Post , at 2317 - 2318 (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 Swearing 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 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 Government 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, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam ) (permitting regulation of words "directed to inciting or producing imminent lawless 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 displayed 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 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, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (plurality opinion) (noting the Government's interest in "protec[ting] children from exposure to patently offensive sex-related material"); Ginsberg v. New York , 390 U.S. 629, 640, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (noting the government's "interest in the well-being of its youth").

The upshot of this analysis is that the narrowing construction 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 government interests. Of course, there is a risk that the *2308statute 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 ----, 135 S.Ct., at 2235-2236 (opinion of BREYER, J.). 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 consistent with the views set forth here.

Justice SOTOMAYOR, with whom Justice BREYER joins, concurring in part and dissenting in part.

The Court's decision today will beget unfortunate results. With the Lanham Act's scandalous-marks provision, 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 narrowing construction to the term "scandalous" and accordingly reject petitioner Erik Brunetti's facial challenge.

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 2297 - 2298.

The Government need not provide this largely commercial 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 2305 - 2306. For that reason, the Court concluded in Matal v. Tam , 582 U. S. ----, 137 S.Ct. 1744, 198 L.Ed.2d 366 (2017), that § 1052(a) 's provision directing the U. S. Patent and Trademark Office (PTO) to deny registration to "disparag[ing]" trademarks was unconstitutional. This case centers on a neighboring set of restrictions: § 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 comprising a unified standard that allows messages "aligned with conventional moral standards" but forbids messages "hostile to" such standards. See ante , at 2299 - 2300.

*2309While the majority'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 2299 - 2300. 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 2299.

It is with regard to the word "scandalous" that I part ways with the majority. Unquestionably, "scandalous" can mean something similar to "immoral" and thus favor some viewpoints over others. See ante , at 2300. 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 reprobation; calling out condemnation"); 9 Oxford English Dictionary 175 (1933) ("Of the nature of, or causing, a 'stumbling-block' or occasion of offence"); 8 Century Dictionary and Cyclopedia 5374 (1911) (Century Dictionary) ("Causing 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 & Wagnalls 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 construction 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, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991) (citation omitted). " 'Words are not pebbles in alien juxtaposition; they have only a communal 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 (C.A.2 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, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001).1

*2310Here, 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 ----, 137 S.Ct., at 1749 (opinion of ALITO, J.) ("It denies registration to any mark that is offensive to a substantial percentage of the members of any group"); id., at ----, 137 S.Ct., at 1750 (opinion of Kennedy, J.) ("[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 2299 - 2300. That defines a second of the three words.

With marks that are offensive because they are disparaging and marks that are offensive because they are immoral already covered, what work did Congress intend for "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 communication 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 particular message or idea.

To be sure, there are situations in w