Matal v. Tam

Simon Tam is the lead singer and bassist of The Slants, a Portland-based dance rock band composed entirely of Asian-American musicians. Tam chose the name deliberately: 'slant' is a racial slur used against Asian Americans, and the band adopted it to reappropriate the term, strip it of its power to demean, and make a statement about identity and self-definition. When Tam applied for a federal trademark in 2011, the United States Patent and Trademark Office rejected the application under Section 2(a) of the Lanham Act, which prohibited registration of marks that 'may disparage' any person, group, or institution.

The PTO's trademark examining attorney and the Trademark Trial and Appeal Board both ruled that 'The Slants' was likely to disparage people of Asian descent, regardless of Tam's intent to reclaim the term. Tam argued that the disparagement clause violated the First Amendment by conditioning a government benefit on the government's approval of the viewpoint the mark expressed. The Federal Circuit agreed and struck down the clause; the government appealed.

The Supreme Court issued a unanimous judgment striking down the disparagement clause, though the eight justices split on reasoning across two opinions. Justice Alito wrote the principal opinion for four justices, holding that the disparagement clause was facially unconstitutional viewpoint discrimination. Trademark registration is a government benefit, but the government cannot condition access to that benefit on whether the expressive content of the mark aligns with the government's view of acceptable speech. 'Giving offense is a viewpoint,' Alito wrote — a viewpoint the government has no authority to disfavor.

Justice Kennedy wrote a concurrence for four justices reaching the same result on a somewhat broader viewpoint-discrimination analysis. The practical effect was unanimous: the disparagement clause fell. The ruling immediately affected the parallel dispute over the Washington Football Team's 'Redskins' trademarks, which had also been cancelled on disparagement grounds; after Tam, those cancellations could not stand.

Matal v. Tam is one of the clearest statements of the viewpoint-discrimination principle in First Amendment law. The government may create benefit programs and impose reasonable conditions on eligibility, but it cannot make viewpoint approval the price of admission. When the government denies trademark registration specifically because it disapproves of the message a mark conveys — that message being offensive to some group — it is engaging in the precise kind of viewpoint-based discrimination the First Amendment prohibits.

The decision extended the viewpoint-discrimination principle into the government-benefit context, closing off a strategy by which the government might use benefit denial rather than direct prohibition to suppress disfavored speech. Before Tam, some lower courts had applied only intermediate scrutiny to government-benefit programs that excluded disfavored expression; after Tam, the categorical prohibition on viewpoint discrimination applies equally regardless of the regulatory mechanism.

Tam also set up Iancu v. Brunetti (2019), in which the Court extended the same analysis to strike down the Lanham Act's prohibition on registering 'immoral or scandalous' marks. Taken together, Tam and Brunetti eliminated all of the Lanham Act's content-based grounds for trademark denial, leaving only content-neutral grounds.

Tam and its sequel Iancu v. Brunetti have reshaped the landscape of trademark registration. The PTO can no longer use subjective judgments about the offensiveness or impropriety of a mark's message as a basis for denial. The decisions have also been applied by lower courts to government grant programs, professional licensing schemes, and occupational regulations that condition benefits on speech compliance.

The Washington Football Team's 'Redskins' trademarks were ultimately reregistered after Tam, though the team subsequently changed its name following sustained sponsor and public pressure — demonstrating that legal protection and cultural consequences can diverge. Tam's broader significance is the constitutional principle: that access to government infrastructure cannot be rationed by viewpoint.

Tam directly governs ongoing disputes about whether government programs — grants, contracts, permits, licenses — can lawfully exclude applicants based on the viewpoint expressed in their work or organizational missions. As governments at federal and state levels have proposed conditioning grants and contracts on acceptance of particular positions on contested social and political questions, Tam provides the constitutional framework for challenging those conditions.

The decision also intersects with debates about AI content moderation policies adopted by government actors or imposed through government leverage. If government pressure causes platforms to disfavor particular viewpoints, Tam's analysis of unconstitutional viewpoint discrimination — though originally applied to formal benefit denial — informs the constitutional analysis.