As discussed in a previous post, Oregon band "The Slants" has been locked in a battle with the USPTO over the Office's refusal to allow them to register their name as a trademark.
Today the US Supreme Court struck down the governments improper restriction on registering marks it believes are disparaging. The Court first took the USPTO to task for even suggesting trademarks are government speech, and confirmed that trademarks are no such thing. What really seemed to seal it for the Government was the analogy to Copyright - if trademarks are government speech by way of registration, the so too are copyrighted material - which is everything.
If federal registration makes a trademark government speech and thus eliminates all First Amendment protection, would the registration of the copyright for a book produce a similar transformation? See 808 F.3d, at 1346 (explaining that if trademark registration amounts to government speech, “then copyright registration” which“has identical accoutrements” would “likewise amount to government speech”).
Next, the Court distinguished cases where the government can impose regulations through subsidies. Here, trademark registration was easily distinguished from subsidies since one must actually pay the Office for registration - not the other way around.
The Court then confirmed that whether trademarks are commercial speech is irrelevant as the Office's refusal to register marks it believes are disparaging cannot even withstand the lower level of scrutiny for commercial speech. As the Court explains:
But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).