Supreme Court Slants in Favor of the First Amendment Page 13 Spring/Summer 2018 be banned because it offends.6 It held that the First Amendment ensures the government cannot regulate, muffle, or silence certain viewpoints, unless it is government speech.7 The Court questioned that “if trademarks rep- resent government speech, what does the Gov- ernment have in mind when it advises Ameri- cans to ‘make.believe’ (Sony), ‘Think differ- ent’ (Apple), ‘Just do it’ (Nike), or ‘Have it your way’ (Burger King)? Was the Government warning about a coming disaster when it registered the mark ‘EndTime Ministries’?”8 Further, the Court held that trademark registra- tion was not a government subsidy program because almost every gov- ernment service requires the ex- penditure of government funds, and making that the sole factor of subsi- dization means every regulatory scheme could be considered a subsidy program.9 Finally, the Court held that the disparagement clause can- not be saved by analogizing it to a government program where content and viewpoint re- strictions are permissible because the cases used in the Government’s argument were ir- relevant.10 The Court also affirmed the Federal Circuit’s conclusion that the disparagement clause could not survive the Central Hudson test be- cause the test required that the “regulatory technique may only extend as far as the inter- est it serves” and the government’s interests of protecting “unrepresented groups” from be- ing “bombarded with demeaning messages in commercial advertising” failed this require- ment.11 The Court proudly held that speech which demeans based on race, ethnicity, gen- der, religion, age, or disability is hateful, but the basis of the United States’ free speech ju- risprudence is to protect all speech—including the hateful speech.12 Implications So now what? First, what can be trademarked has been significantly broadened. On one (Continued from page 12) hand, this allows groups, such as The Slants, to reclaim words that had negative connota- tions and use them proudly. On the other hand, what may seem offensive to one may no longer be denied trademark registration. Therefore, one is likely to encounter trademarks that may be offensive to them. Second, the Tam decision is likely also a win for Pro Football, Inc., which has sought to register Redskins as a trade- mark.13 There, applying the same Lanham Act provision, the USPTO rejected trademark pro- tection for the football team the Washington Redskins, stating that Redskins is disparaging to a substantial composite of Native Ameri- cans. Now, sure, in Tam the motive behind Simon Tam’s use of the word Slants was to change its negative con- notation. However, the Washington Redskins case does not involve any cul- tural reappropriation. However, the fundamental principle of the First Amendment is free speech and free speech may be positive or negative. There is no way to lawfully censor some speech without allowing the gov- ernment to censor all speech. The Supreme Court’s decision, while allowing for speech that is disparaging, has opened up the space for dia- logue and communication. That being said, since trademarks are source identifiers, people with trademarks that are offensive to a section of the population may just be alienating them from using their goods and services. Therefore, although one may have a personal preference to register marks that may be disparaging to a section of the population, it may not be the best business decision. Further, as consumers, if one finds a trademark dispar- aging, he or she can do their part by calling the companies out, boycotting those companies, and ensuring that their spending reflects their values. Next, there is some confusion regarding the “scandalous” provision of the Lanham Act.14 The USPTO issued Examination Guide 01-17 on Monday, June 26, 2017, guiding examiners on how to apply the Tam decision. It stated that the constitutionality of the “scandalous” provision in the Lanham Act remains in ques- tion.15 The statute does not define (Continued on page 15) “[T]here is some confusion regarding the ‘scandalous’ provision of the Lanham Act.”