This educational guide is based on the linked primary sources. It is not a Court publication, is not affiliated with the Court, and is not legal advice.
In brief
Overview
According to Petitioner (Malcolm L. Stewart), according to Petitioner (Malcolm L. Stewart), the petitioner argues that Section 52(a)’s disparagement provision merely places a reasonable limit on access to a government program and does not restrict speech, so it does not violate the First Amendment.
According to John C. Connell, the registration denial blocks the applicant from obtaining trademark protection, creating a burden that harms the ability to compete in the marketplace.
Background and question before the Court
What each side argues
Petitioner (Director, USPTO) Position
According to Petitioner (Malcolm L. Stewart), according to Petitioner (Malcolm L. Stewart), section 52(a)’s disparagement provision is a reasonable limit on a government program, not a speech restriction, and therefore does not violate the First Amendment.
Respondent (Simon Shiao Tam) Position
According to John C. Connell, the registration denial blocks the applicant from obtaining trademark protection, creating a burden that harms the ability to compete in the marketplace.
According to Mr. Connell, the register simply records marks that the government has approved, similar to other ministerial registrations such as patents or vehicle titles.
According to Mr. Connell, viewpoint discrimination is prohibited in commercial speech under the Sorrell case.
According to Mr. Connell, disparaging messages in trademarks control a component of the overall message but do not interfere with source identification.
According to Mr. Connell, all distinctions made by the Lanham Act are viewpoint‑neutral and further its commercial objectives of reducing consumer confusion.
What happened at oral argument
Justice Kennedy asked whether copyright is a government program.
According to Justice Ginsburg, justice Ginsburg inquired whether a complimentary term like “Slants Are Superior” would fall outside the disparagement bar.
Justice Ginsburg asked about the term “scandalous.”
Chief Justice Roberts asked whether the federal courts, as a government program, are open for actions to enforce infringement of a disparaging trademark.
Justice Kennedy asked whether the statute meets strict scrutiny or an intermediate level of review.
Justice Sotomayor asked whether the statute is not clear enough for them to get it right.
Justice Sotomayor raised a hypothetical about a trademark that is also libelous and asked whether canceling it would abridge the First Amendment.
Justice Kennedy likened trademark law to a public park, asking whether it is a public forum where any speech is allowed.
- [1] bc294f85d3a1e8196126-r1-ce7908ff3073fe9b.pdf, p. 3
- [2] bc294f85d3a1e8196126-r1-ce7908ff3073fe9b.pdf, p. 9
- [3] bc294f85d3a1e8196126-r1-ce7908ff3073fe9b.pdf, p. 22
- [4] bc294f85d3a1e8196126-r1-ce7908ff3073fe9b.pdf, p. 23
- [5] bc294f85d3a1e8196126-r1-ce7908ff3073fe9b.pdf, p. 24
- [6] bc294f85d3a1e8196126-r1-ce7908ff3073fe9b.pdf, p. 26
- [7] bc294f85d3a1e8196126-r1-ce7908ff3073fe9b.pdf, p. 37
- [8] bc294f85d3a1e8196126-r1-ce7908ff3073fe9b.pdf, p. 41
What the Court decided
Why it matters
Terms to know
No glossary terms are available for this guide.
Primary sources
Read the source materials on the official site or open the immutable repository copy used for this guide.
- bc294f85d3a1e8196126-r1-ce7908ff3073fe9b.pdforal argument transcript
Guide generated September 25, 2026. Automated validation accepted this version.