Lead Opinion
*2297Two Terms ago, in Matal v. Tam , 582 U. S. ----,
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 letters, one after the other: F-U-C-T. See Brief for Respondent 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
This case involves another of the Lanham Act's prohibitions on registration-one applying to marks that "[c]onsist[ ] of or comprise[ ] immoral[ ] or scandalous matter." § 1052(a). The PTO applies that bar as a "unitary provision," rather than treating the two adjectives in it separately. In re Brunetti ,
Both a PTO examining attorney and the PTO's Trademark 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 "decidedly 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.
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 invalidated a federal statute, we granted certiorari. 586 U. S. ----,
II
This Court first considered a First Amendment challenge 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 "disparage" 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 *2299whether 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 ---- - ----, ---- - ----,
The Justices thus found common ground in a core postulate of free speech law: The government may not discriminate against speech based on the ideas or opinions it conveys. See Rosenberger v. Rector and Visitors of Univ. of Va. ,
If the "immoral or scandalous" bar similarly discriminates 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 Government 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 dictionaries 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 feelings"; "excite[s] reprobation";
*2300or "call[s] out condemnation." 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 definitions recited above. See supra, at 2298. The PTO, for example, asks whether the public would view the mark as "shocking to the sense of truth, decency, or propriety"; "calling out for condemnation"; "offensive"; or "disreputable." 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 conveying approval of drug use (YOU CAN'T SPELL HEALTHCARE WITHOUT THC for pain-relief medication, 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). Similarly, 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 outraged 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 trademarks associating religious references with products (AGNUS DEI for safes and MADONNA for wine) because they would be "offensive to most individuals of the Christian faith" and "shocking to the sense of propriety." Ex parte Summit Brass & Bronze Works ,
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 expressed 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 concretely, the Government explains that this reinterpretation 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, because 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. ,
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
We accordingly affirm the judgment of the Court of Appeals.
It is so ordered.
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. ,
Concurrence Opinion
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 discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under *2303attack, 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 government 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 containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could 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.
Concurrence 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."
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 convey. The Government urges, however, that the provision can be given a narrowing construction-it can be understood 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 majority that the "immoral" portion of the provision is not susceptible of a narrowing construction that would eliminate its viewpoint bias. As Justice SOTOMAYOR explains, however, the "scandalous" portion of the provision is susceptible 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. ----,
I also agree that, regardless of how exactly the trademark 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 Government, 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 *2304using obscene, vulgar, and profane modes of expression. For those reasons, I concur in part and dissent in part.
Concurrence in Part
Our precedents warn us against interpreting statutes in ways that would likely render them unconstitutional. Virginia v. American Booksellers Assn., Inc. ,
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. ----, ----,
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 ,
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. ----, ---- - ----,
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 ,
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. ----, ----,
The trademark statute cannot easily be described as a regulation of "government speech," either. Tam , 582 U. S., at ---- - ----,
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. ,
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. ,
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 ---- - ----,
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."
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.
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 ,
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 ,
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,
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. ----,
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 ,
*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 ----,
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 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 ,
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] and proli[x]," Bruesewitz v. Wyeth LLC ,
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 because 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 obvious 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.
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 always 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 ,
Second, the Court has in the past accepted or applied similarly narrow constructions to avoid constitutional infirmities. In Chaplinsky v. New Hampshire ,
In Frisby v. Schultz ,
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 construction is, of course, "not a license for the judiciary to rewrite language enacted by the legislature." United States v. Albertini ,
II
Adopting a narrow construction for the word "scandalous"-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 Gilbert , 576 U. S. ----, ----,
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,
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." Rosenberger ,
A restriction on trademarks featuring obscenity, vulgarity, or profanity is similarly viewpoint neutral, though it is naturally content-based.
Brunetti invokes Cohen v. California ,
Cohen also famously recognized that "words are often chosen as much for their emotive as their cognitive force,"
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) impermissible 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 ----, 135 S.Ct., at 2227, there are contexts in which it does not, see, e.g., Rosenberger ,
Rights to a trademark itself arise through use, not registration. Regardless of whether a trademark is registered, it can be used, owned, and enforced against would-be infringers. See B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. ----, ----, ----,
When the Court has talked about governmental initiatives 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 ,
Regardless of the finer distinctions between these labels, reasonable, viewpoint-neutral *2317content discrimination is generally permissible under either framework. See Christian Legal Soc. ,
Whichever label one chooses here, the federal system of trademark registration fits: It is, in essence, an opportunity to include one's trademark on a list and thereby secure the ancillary benefits that come with registration.
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 interest in not promoting certain kinds of speech, whether because such speech could be perceived as suggesting governmental favoritism or simply because the Government does not wish to involve itself with that kind of speech. See, e.g., Ysursa ,
III
"The cardinal principle of statutory construction is to save and not to destroy." Jones & Laughlin Steel Corp. ,
That said, I emphasize that Brunetti's challenge is a facial one. That means that he must show that " 'a substantial number of [the scandalous-marks provision's] applications are unconstitutional, judged in relation to the [provision's] plainly legitimate sweep.' " United States v. Stevens ,
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 trademark 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 "scandalous" in the same statute and would instead uphold it under the narrow construction discussed here.
We reject the dissent's statutory surgery for the same reason. Although 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 2308 - 2309 (SOTOMAYOR, J., concurring in part and dissenting in part). But that term is not "ambiguous," as the dissent argues, post, at 2309; it is just broad. Remember that the dictionaries define it to mean offensive, disreputable, exciting reprobation, and so forth. See supra, at 2299 - 2300; post, at 2309 (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 2315 - 2317-because the "scandalous" bar (whether or not attached to the "immoral" bar) is not one.
For example, McDonnell v. United States , 579 U. S. ----,
That interpretive move appears to accord with the Federal Circuit and the PTO's past practice. Ante, at 2297 - 2298. 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 ,
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 ,
Although the Government represents, and case law and scholarship 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. ,
There is at least one particularly egregious racial epithet that would fit this description as well. While Matal v. Tam , 582 U. S. ----,
Of course, obscenity itself is subject to a longstanding exception to First Amendment protection, see Brown v. Entertainment Merchants Assn. ,
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. ,
That does not mean, of course, that a government may elude harsher scrutiny or invalidation of a regulation by simply claiming disinterest in a speaker's message, see United States v. Eichman ,
See
In Tam , four Justices concluded that cash-subsidy programs like the one in Finley were "not instructive in analyzing" trademark registration. 582 U. S., at ----,
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."
Though I do not address the constitutionality of provisions not before 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).
As noted above, I agree with the majority that § 1052(a) 's bar on the registration of "immoral" marks is unconstitutional viewpoint discrimination. See supra, at 2308 - 2309. I would simply sever that provision and uphold the bar on "scandalous" marks. See Reno v. American Civil Liberties Union ,
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 2298. Because a facial challenge is the only challenge before the Court, I do not address whether an as-applied challenge could have merit here.
