Matal v. Tam

Following is the case brief for Matal v. Tam, 137 S. Ct. 1744 (2017)

Case Summary of Matal v. Tam:

  • Simon Tam and his band, “The Slants,” tried to register the band’s name with the Patent and Trademark Office (PTO).
  • The PTO denied the registration, finding that the band name was disparaging to Asians in violation of the Disparagement Clause of the Lanham Act.
  • The full Court of Appeals for the Federal Circuit held that the Disparagement Clause violated the First Amendment.
  • The U.S. Supreme Court agreed, holding that allowing a trademark does not change private speech into government speech.  Thus, the Lanham Act’s Disparagement Clause is unconstitutional under the First Amendment.

Matal v. Tam Case Brief

Statement of the Facts:

Simon Tam and his rock band (all of whom are of Asian descent) chose the name “The Slants” in order to take ownership of the term and negate its power as derogatory slang for Asians.  When Tam tried to register the name, however, the Patent and Trademark Office (PTO) denied registration under the Lanham Act’s Disparagement Clause.  That Clause prohibits trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.”

Procedural History:

  • Tam appealed the decision administratively, and the PTO stood by its initial decision.
  • The Court of Appeals for the Federal Circuit, sitting en banc, held that the Disparagement Clause was unconstitutional as violating the First Amendment’s Free Speech Clause.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Does the Lanham Act’s Disparagement Clause violate free speech under the First Amendment?  Yes.


The decision of the Court of Appeals for the Federal Circuit is affirmed.

Rule of Law or Legal Principle Applied:

A trademark cannot be denied because it disparages a person or group of people because such denial violates freedom of speech under the First Amendment.


The Court’s judgment to affirm was unanimous, but a majority of the justices could only agree to the following reasoning:

First, the Disparagement Clause applies to members of a racial or ethnic group.  While Tam argues that it only applies to natural persons, the Court finds that the plain language of the Disparagement Clause applies to groups of people.

Second, trademarks are private speech, not government speech.  The Court noted that if trademark registration transforms private speech into government speech, then the government is “babbling prodigiously and incoherently.”

Third, by denying trademarks that allegedly disparage groups of people, the Disparagement Clause is viewpoint discrimination.  Speech is still protected even if it is offensive.  Offensive speech is a viewpoint.  Therefore, denying offensive speech is denying a particular viewpoint.

Writing for a plurality, Justice Alito added that the government’s attempts to save the Disparagement Clause under the “subsidized-speech cases” or the “government-program” doctrine are not persuasive, as viewpoint discrimination is still forbidden in those contexts.  Further, there is no need to resolve the question of whether a standard less than strict scrutiny is required here.

Concurring and Dissenting Opinions:

Concurring Opinion (Kennedy):

The government argues that the Disparagement Clause is viewpoint neutral.  That, however, is unpersuasive.  By “mandating positivity,” the law has the ability to censor dissent and “distort the marketplace of ideas.”  The problem with the viewpoint discrimination here is that the government is taking certain ideas out of the broad debate.  Further, even if the trademark here is viewed as “commercial speech,” it is still protected from viewpoint discrimination.  In sum, free and open discussion safeguards against too much offensive speech.  The government should not be the arbiter of what should be, or not be, included in our social debate.

Concurring Opinion (Thomas):

Strict scrutiny should be applied here regardless of whether the speech is private or commercial.  Even under a less stringent standard, the Disparagement Clause is unconstitutional.


Matal v. Tam is a landmark decision because it struck down part of a 1946 law, finding that racially offensive trademarks, like the “The Slants” or the football team name “The Redskins,” enjoy full freedom of speech protection under the First Amendment.  Accordingly, the government cannot deny such trademarks.

Student Resources:

Read the Full Court Opinion

Listen to the Oral Arguments

Washington Post Article With Detail on the Court’s Decision