May it please the court. The provision at issue in the case, 15 u. S. Beliefs or National Symbols. Based on that provision, the pto denied to region the slants, as a service mark of the band. It did not limit the ability to use the mark in commerce or to otherwise engage in expression or debate on any subject that he wishes. Because of the disparagement provision restricts the program and not speech, it does not violate the First Amendment. It was a copy righted Government Program . I would say copright and c y copyright registration is tied to values of Free Expression. The part that seems to me that ignore the fact that we have a culture in which we have tshirts and logos and rock bands and so forth, but we are expressing a pouint of view, thy are using the market to express views. Disparagement would not clearly work with copyright, that is a powerful, important Government Program. Through their music, the slants are expressing views on social and political issues. They are able to copyright their songs and get incideprotection way. If congress attempted to prohibit them either have having copyright protection or copyright registration on their music, that would pose a much more substantial First Amendment issue. I was somewhat surprised that in your brief you couldnt bring yourself to say that the government could not deny copyright protection to objectionable material. Are you willing to say that . I hate to give away any hypothetical statute without hearing the justification. But ill come as close as i possibly can to say yes, we would give that away. It would be unconstitutional to deny copyright protection on that ground. But i would also say even in the copyright context we would distinguish between limits on copyright protection and restrictions on speech. For instance, its historically been the case and it remains the position of the Copyright Office that a person cant copyright new words or short phrases even if a person comes up with something that is original, that is pithy, that makes a point, if its too short you cant get copyright protection. We would certainly defend the constitutionality of that traditional limit on the scope of copyrightable material. And if there were a First Amendment challenge brought, we would argue that theres a fundamental distinction between saying you cant copyright a fourword phrase and saying you cant say the fourword phrase or you cant write it in print. Theres a significant difference between the copyright regime. You cant sue for Copyright Infringement unless you register. Isnt that so . You have to have filed an application to register in order to pursue an infringement suit. So the statute, i believe its 17 u. S. C 411a indicates that if you filed an application to register your copyright even if the application has been denied you can still bring your copyright suit and the register is entitled to be heard on questions of copyrightability. There are no comparable restrictions on the trademark. Thats correct. You can file a suit under section 1125a of title 15 under the Trademark Laws either for infringement of an unregistered trademark or for unfair competition more generally. Counsel, im concerned that your Government Program argument is circular. The claim is youre not registering my mark because its disparaging. And your claim is we run a program that doesnt include disparaging trademarks, thats why youre excluded. It doesnt seem to advance the argument very much. Disparagement provision is only one of a number of restrictions on copy im sorry, on trademark registerability that couldnt be placed on speech itself. For example, marks that are merely descriptive, that are generic, marks that the applicant is not the true owner because somebody was previously using the mark in commerce, those cant be registered either. Each one of those and i know there are several. Are related to the ultimate purpose of the trademark. Which is to identify the source of a product. So every trademark makes that statement. Now, what is that purpose or objective of trademark protection does this particular disparagement provision help along or further, and im thinking of the provision that says you can Say Something nice about a Minority Group but you cant Say Something bad about them. With all the i dont know the others. I dont know all but i know many of them. And i can relate that. You relate this. I think congress evidently concluded that disparaging trademarks would hinder commercial development in the following way. A trademark in and of itself is a source identifier. Its function is to tell the public from whom do the services emanate. It is not expressive in its own right. It is certainly true that many commercial actors will attempt to devise trademarks that not only identify them as the source but also are intended to convey positive messages about their products. For example, if you see the name jiffy lube or a b b thats kind piney vista, the mark is sort of a dual purpose communication. It both identifies the source and it serves as a kind of miniature advertisement. There is always the danger as some of the amicus briefs on our side point out, that when a person uses as his mark words that have other meanings in common discourse it will distract the consumer from the intended purpose of the trademark qua trademark, which is to identify source. And basically, Congress Says as long as you are promoting your own product saying nice things about people well put up with that level of distraction. Suppose the application here had been for slants are superior. Thats a complimentary term. Would that then be taken outside the disparagement bar . I think that under the ptos historical practice probably not. And i think the same thing would be true of other racial epithets, terms that have long been used as slurs for particular Minority Groups. Why isnt that disparaging of everyone else . Slants are superior. Superior to whom . I think the basis for the ptos practice, and we obviously dont have that case, is the term slants in and of itself when used with regard to asia asian americans. The only question i have for you is what purpose related to trademarks objective does this serve . And i want to be sure i have your answer. Your answer so far was it prevents the or it helps to prevent the user of the product from being distracted from the basic message, which is i made this product. I take it thats your answer. And if thats your answer, my followup question to that would be i can think probably and with my law clerks perhaps 50,000 examples of instances where the space the trademark provides is used for very distracting messages, probably as much or more so than the one at issue, or disparagement. And what business does congress have picking out this one but letting all the other distractions exist . Well, i think what youve described is my first line answer, and i think the precise justification for different kinds of for prohibiting registration of different kinds of disparaging trademarks would depend to some extent on who is being disparaged your answer was distracting. And one of the great things of 99 of all trademarks is they dont just identify. Boy, do they distract. Its a form of advertising. So if the answer is distracting, not you didnt provide an answer to disparagement. Your answer to why disparagement was they dont want distraction from the message. They dont want distraction and they dont want particular types of distraction. That is thats where i have the question. What relation is there to the particular type of distraction, disparagement, and any purpose of a trademark . The type of distraction that may be caused by a disparaging trademark will depend significantly on the precise type of disparagement at issue. That is, in the case of racial epithets these words are known to cause harm, to cause controversy. In some sense they may be no more distracting than a positive message. But congress can determine this is the wrong kind of distraction. Mr. Please. Another type would be a Software Manufacturer who wants to register the trademark coke stinks, who wants to identify his own product with a sentiment that is antithetical to one of his competitors. Congress can determine we would prefer not to encourage that form of commerce, we can prefer that commercial actors will promote their own products rather than disparage others. Obviously, under the First Amendment we couldnt prevent that kind of criticism but we can decline tone courage im sorry. Assuming government speech itself is not involved, i always thought that Government Programs were subject to one extremely important constraint, which is that they cant make distinctions based on viewpoint. So why isnt this doing exactly that . Because it precludes disparagement of and casts a wide net. Thats absolutely true. It precludes disparagement of democrats and republicans alike and so forth and so on. But it makes a very important distinction, which is that you can say good things about some person or group but you cant say bad things about some person or group. So for example, lets say that i wanted a mark that expressed the idea that all politicians are corrupt or just that democrats are corrupt. Either way. It doesnt matter. I couldnt get that mark. Even though i could get a mark saying that all politicians are virtuous or that all democrats are virtuous, either way. Doesnt matter. You see the point. The point is that i can say good things about something but i cant say bad things about something. And i would have thought that that was a fairly classic case of viewpoint discrimination. As we pointed out, laws like libel laws have not been historically treated as discriminatory based on viewpoint well, libel is one of our historically different but very distinct categories. And you dont make a claim that this falls into a category of low value speech in the way that libel laws, in the way that defamation does or fighting words or Something Like that. And youre not looking to create a new category. So in that case it seems the viewpointbased ban applies. And as i said i would be interested to hear your answer of why the example i stated is not viewpoint based. You can Say Something good about somebody but not something bad about somebody or something. Certainly if you singled out a particular category of people like political officials and said you cant say anything bad about any of them but you can say all the good things you want, i think that would be viewpointbased because it would be protecting a Discrete Group of people. Let me give a couple of answers. But why isnt that but if you didnt limit it, if you said you cant say anything bad about anybody anytime, thats okay . Were saying dont register your trademark if its disparaging. Certainly no, no, no. I said even in a Government Program, even assuming that this is not just a classic speech restriction, youre still subject to the constraint that you cant discriminate on the basis of viewpoint. In booth versus berry its not a majority opinion but the court there was confronted with a law that made it illegal to i believe it was post signs or engage in expressive activity within 500 feet of a Foreign Embassy that was intended to bring the Foreign Government into contempt or disrepute. And the law was struck down as sweeping too broadly. But at least the plurality would have held that it was not viewpointbased because it applied to all foreign embassies. It didnt turn on the nature of the criticism. Another example i would give, and its a hypothetical example but at least i have a strong instinct as to how the case should be decided. Suppose at a Public University the school set aside a particular room where students could post messages on topics that were of interest or concern to them as a way of promoting debate in a nonconfrontational way and the school said just two ground rules. No racial epithets and no personal attacks on any other members of the school community. It would seem extraordinary to say thats a viewpointbased distinction that cant stand because youre allowed to say complimentary things about your fellow students so the government is the omnipresent schoolteacher . Is that what youre saying . The governments a schoolteacher . No. Again, that analysis would apply only if the Public School was setting aside a room in its own facility. Clearly if the government attempted more broadly to restrict disparaging speech by students or others rather than simply to limit the terms under which a forum for communication could be made available, that would involve entirely different questions. Thats were the plurality in booth versus berry would find it unconstitutional even though but one distinction is the scope of the Government Program. If youre talking about a particular discussion venue at a Public University, thats one thing. If youre talking about the entire trademark program, it seems to me to be something else. The trademark Registration Program and trademarks generally have not historically served as vehicles for expression. The landon act defines trademark and servicemark entrepreneur purely by reference to their source identification functions. And i think its to get back to copyright for just a second, i think its at least noteworthy that everyone would recognize that mr. Tam is not entitled to a copyright on the slants. The Copyright Office doesnt register short phrases. Two words is certainly short. One not because of the content or the viewpoint expressed. Its just its a short phrase. And any short phrase would be no good. This is you cant say slants because the pto thinks thats a bad word. Does it not count at all that everyone knows that the slants is using this term not at all to disparage but simply to describe . And take the sting out of the word. Trademark examining attorney went through this in a lot of detail, and the trademark examiner acknowledged that mr. Tams sincere intent appeared to be to reclaim the word, to use it as a symbol of asianamerican pride rather than to use it as a slur. He also found a lot of evidence in the form of internet commentary to the effect that many asianamericans, even those who recognized that this was mr. Tams intent, still found the use of the word as a band name offensive. The point i was trying to make about copyright is not that copyright protection would be denied on the ground of disparagement. Youre right, it would be denied because its a short phrase and not even an original phrase. But copyright is the branch of intellectual property law that is specifically intended to foster Free Expression on matters of cultural and political among other significance. Do you deny that trademarks are used for expressive purposes . I dont deny that trademarks are used for expressive purposes. As i was saying earlier, i think many commercial actors will pick a mark that will not only serve as a source identifier but that will cast their products in an attractive light and or that will communicate a message on some other topic. My only point is in deciding whether a particular trademark should be registered congress is entitled to focus exclusively on the source identification aspect. I wonder if you were not stretching the concept of a Government Program past the breaking point. The government provides lots of services to the general public, and i dont think you would say that those fall within the line of government cases youre talking about. Like providing Police Protection to the general public or providing Fire Protection to the general public. Those cost money and those are Government Programs. Can the government say, well, were going to provide protection for some groups but not for other groups . No. I think those would raise serious i mean, depending on the nature of the distinction, equal protection problems, potential the potential First Amendment problems too if the nature of the distinction was based on the persons speech, isnt that right . Well, clearly if it was based on viewpoint and clearly i would say so absolutely clearly if it was based on viewpoint. And so i guess i dont want to interrupt your answer to justice alito. But i want to get back to because i dont really understand the answer that you gave me before. You said a government regulation that distinguished between saying politicians are good and virtuous and politicians are corrupt would clearly be viewpointbased, is that right . And similarly, if you said that the flag is a wonderful emblem, this applies to National Symbols, but you could say the flag is a wonderful emblem but you cant say that the flag is a terrible emblem. That would be viewpointbased. I mean, thats what this regulation does. It says you can say one of those things but you cant say the other and get trademark. But it sweeps with a broad brush. And i think the reason that viewpointbased discrimination has historically been the most disfavored type of regulation from a First Amendment perspective is that it creates the danger that the government is attempting to suppress disfavored messages. Theres a tee tab, an appeal board decision from 1969 that declined to register a proposed trademark that was essentially the soviet hammer and sickle with a slash through it. And registration was denied on the ground that it disparaged the National Symbol of the soviet union. Now, obviously, hostility toward the soviet union was not inconsistent with United States policy in 1969. No one would have perceived the denial of trademark registration as an a