Matal v. Tam Is Still Rewriting Free Speech Law
When I started fighting for the right to register The Slants as a trademark, most experts expected the case to remain narrow. A dispute involving one provision of the Lanham Act, one seldom used by the Trademark Office to deny registrations. Even after the Federal Circuit ruled in our favor, the prevailing view was that whatever the Supreme Court decided, the holding would be carefully cabined.
I used to describe the journey of the case like this: it began as an ax, and by the time it reached the Court, it had been sharpened to a razor blade. Most trademark lawyers expected it to stay that way, but it didn't. Nine years later, Matal v. Tam shows up in cases about social media regulation, professional speech doctrine, government coercion of private speakers, and criminal procedure. Seeing your own case cited in contexts you never imagined is uncomfortable, unexpected, and exciting all at once — which is, I've come to think, a hallmark of any real First Amendment case.
Worth noting before going further: the Court was unanimous on the result in Tam, but not on the reasoning. Justice Alito's opinion didn't command a majority on every section, which is part of why the case's "afterlife" has developed as much through subsequent decisions as through the opinion itself. What follows is where things stand in 2026. For background on what the decision held, What Matal v. Tam Actually Decided — And What It Didn't covers that ground directly.
What Tam Changed — and What It Didn't
It established that trademark registration operates within First Amendment constraints. Before Tam, many courts treated registration as something closer to an administrative benefit — one Congress could condition however it chose. The Court rejected that framing for the disparagement clause specifically: trademark registration implicates private speech, the act of registering a mark does not transform it into government speech, and the government cannot deny registration based on viewpoint. The Court treated the registry as a government-administered system for recording and protecting private expression, rather than as a platform for endorsing approved messages. Trademark law could still protect consumers from fraud and confusion — but not from hurt feelings.
It eliminated viewpoint discrimination from one part of trademark law. Viewpoint discrimination means the government permits debate on a subject but penalizes one side of it. The disparagement clause worked exactly that way: the USPTO had to decide, case by case, what counted as disparaging — a line the Cato Institute's amicus brief in the case argued was "impossible to draw" objectively. That brief, filed jointly with what it called "a basket of deplorable people and organizations" (a direct jab at a 2016 campaign-trail insult), opened with the question: does the government get to decide what's a slur? It catalogued decades of reclaimed and provocative language across American culture — band names, book titles, comedy routines — to argue that "disparaging" was never a category anyone could apply consistently. Reclaiming language is a complex, ongoing process, and it would be difficult to legislate the ever-changing relationship a community has with its own language as it evolves alongside society. (I've written more about what that process actually looks like in Why Can't I Say That Word Too?.) The Court agreed that a framework allowing the government to approve one side of a viewpoint debate while suppressing the other was unconstitutional. Giving offense is a viewpoint. So is defining what offense is.
It narrowed the government-speech doctrine — within limits. The Court warned that treating registration as government speech would mean "the Federal Government is babbling prodigiously and incoherently" — speaking through every trademark simultaneously (Matal v. Tam, 582 U.S. 218, 235–36 (2017)). That line set a real limit on how far the government-speech doctrine could travel, and Shurtleff v. Boston is a clean example of courts applying it since. But the doctrine remains far from settled — courts are still divided on how it applies to specialty and personalized license plates specifically, where Walker v. Sons of Confederate Veterans survived and Tam was later distinguished rather than extended. More on that below.
It became part of general First Amendment doctrine — though rarely as the controlling authority. This surprised almost everyone. A trademark dispute involving an Asian American rock band is now cited across professional speech, platform regulation, and government-coercion cases. It's worth being precise about what that means: in most of these cases, Tam is invoked as one strand of a broader anti-viewpoint-discrimination principle rather than as the case that decided the outcome. Tam influenced this doctrine considerably. It rarely controls it alone.
What it did not do. Tam did not weaken trademark infringement law — likelihood of confusion, dilution, and counterfeiting continue to be enforced, and it created no First Amendment defense to ordinary infringement disputes between private parties. It did not eliminate all registration restrictions: Vidal v. Elster later confirmed that content-based, viewpoint-neutral restrictions grounded in historical tradition can survive. Tam blocked viewpoint-based refusals. It did not establish that every content-based condition on a government registration system is unconstitutional.
Why This Pattern Matters
Courts spend most of their time not on grand acts of censorship but on mundane administrative decisions — licenses, permits, registrations, certifications. Tam mattered institutionally because it recognized that constitutional values can be threatened just as easily through bureaucratic discretion as through outright bans. A government that would never dare announce "we are banning speech we find offensive" can accomplish something close to that outcome through a registration form, a licensing standard, or a content moderation policy — as long as courts are willing to treat the administrative system as exempt from ordinary scrutiny. Tam's core contribution was refusing that exemption in one specific context. Its descendants have been testing how far that refusal extends.
A study published in Kyklos suggests that individuals who place a high value on free speech also tend to exhibit greater racial and ethnic tolerance. That correlation tracks something I've observed directly: the burden of government restrictions on speech falls hardest on those with the least power. The rich and powerful get deference or find workarounds. Those traditionally marginalized don't. Megan Carpenter and Kathryn Murphy documented this directly in their 2010 law review article "Calling Bullshit on the Lanham Act", which found that the disparagement and scandalousness bars were applied inconsistently and arbitrarily long before Tam reached the Court — nearly every slur, scandalous term, or disparaging mark imaginable had already been registered by someone, while the bar fell disproportionately on marks attempting reappropriation, satire, or expressive challenge to existing norms. A follow-up empirical study by Carpenter and Mary Garner, "NSFW: An Empirical Study of Scandalous Trademarks", found the burden of the scandalousness bar fell disproportionately on small businesses and individual applicants — exactly the people with the least ability to litigate their way around an inconsistent standard. The rule didn't prevent offensive marks from reaching the register. It mostly prevented the wrong people from registering them. Studies conducted after Tam — including Toward a More Civil Discourse and Queer Trademarks — have documented real benefits to minority groups specifically from the decision, particularly communities engaged in linguistic reappropriation.
This doesn't mean every outcome the principle produces is one I'd have chosen. The same reasoning that protected The Slants also helped clear the path for the Washington Football Team to keep a racist mascot for a time. Protecting the most vulnerable requires being willing to protect those who might take advantage of the same principle — though they've usually already benefited from existing power structures regardless. That discomfort is the price of a principle applied consistently rather than selectively.
Some of the Biggest Cases
Iancu v. Brunetti (2019) — The Court struck down the Lanham Act's bar on "immoral or scandalous" trademarks 6-3. Brunetti applied Tam's viewpoint-discrimination reasoning to a closely related provision — both bars had functioned through the same unconstitutional machinery. Read the amicus brief I filed here.
NIFLA v. Becerra (2018) — California required crisis pregnancy centers to notify clients about state abortion services. The Court struck the law down, citing Tam while rejecting a broad "professional speech" category that would have let the government regulate licensed professionals' speech with less scrutiny. One of Tam's earliest and most consequential non-trademark appearances — Tam was influential here, not controlling.
Shurtleff v. City of Boston (2022) — Boston denied a request to fly a Christian flag on a city flagpole otherwise available to public groups. The Court ruled unanimously for the private speakers, relying in part on Tam's warning against treating government facilitation of private expression as government speech itself.
NetChoice v. Moody — Florida's regulation of social media content moderation. In its original 2022 decision, the Eleventh Circuit relied on Tam to strike down major portions of the law, citing the principle that the government cannot discriminate against speech because of the ideas expressed. The Supreme Court later vacated and remanded the case in 2024 for application of its Moody framework, so the Eleventh Circuit's specific holding no longer stands as precedent — but Tam's viewpoint-discrimination principle remains very much part of the broader, ongoing debate over platform regulation.
303 Creative v. Elenis (2023) — Colorado sought to require a website designer to create expressive content for same-sex weddings. Tam was not central to the Court's reasoning here, but the decision reflects the same anti-compelled-speech and anti-viewpoint-discrimination principles Tam helped establish.
NRA v. Vullo (2024) — The NRA alleged a New York regulator coerced banks and insurers to cut ties with the organization to suppress its gun advocacy. The Court cited Tam for the principle that the government may speak its own views but may not use official power to suppress disfavored private expression.
Vidal v. Elster (2024) — Steve Elster sought to register "Trump Too Small." The Court unanimously upheld the Lanham Act's names clause — which bars registering a living person's name without their consent — but without a majority rationale. The plurality grounded its reasoning in historical tradition rather than the viewpoint-discrimination framework Tam and Brunetti established. Vidal v. Elster confirmed that Tam did not provide a comprehensive theory of trademark registration and the First Amendment — it blocked viewpoint-based refusals, but the Court has not yet said how far that principle extends against other content-based restrictions.
Gilliam v. Tennessee (2025) — Leah Gilliam's personalized plate under Tennessee's personalized plate program — "69PWNDU" — was revoked after a decade. The Tennessee Supreme Court found the program constitutes government speech and distinguished Tam on that basis. I filed a joint amicus brief with the Institute for Free Speech urging the Court to "exercise great caution before extending our government-speech precedents." A petition for certiorari is pending. If SCOTUS takes this case, it will likely have to resolve the tension between Walker v. Sons of Confederate Veterans, which found license plates to be government speech, and Tam's anti-viewpoint-discrimination principle, directly.
Rap on Trial (ongoing) — In 2019, I joined Chance the Rapper, Killer Mike, Meek Mill, and Luther Campbell on an amicus brief urging the U.S. Supreme Court to hear Knox v. Commonwealth of Pennsylvania. I'd invited Campbell to sign on directly — I'd studied his own First Amendment case, Campbell v. Acuff-Rose Music (1994), while writing my memoir, and it felt right to have him in the room for this one. Jamal Knox, a Pittsburgh rapper, had been convicted of terroristic threats and witness intimidation after releasing a song naming the officers who arrested him; the Pennsylvania Supreme Court held the lyrics crossed from artistic expression into a "true threat," finding they lacked "political, social, or academic commentary" and were not "facially satirical or ironic." The brief argued that standard effectively asked judges to be literary critics, applying a more skeptical, literal reading to rap specifically. The argument draws on the same logic as Tam: the government cannot treat one expressive form as presumptively literal without engaging in content-based discrimination. A murder ballad in country music doesn't get introduced as criminal evidence. A rap song about the same subject frequently does. The Supreme Court declined to hear Knox, leaving the Pennsylvania ruling in place, but the constitutional question remains active. I later joined Killer Mike on a panel at the Washington Post's "Free to State" summit to discuss the disparate impact of laws like this on communities of color. Several states have since passed or are considering legislation limiting the admissibility of rap lyrics as criminal evidence.
The case keeps accumulating. Can’t stop, won't stop.
Nine years ago, I filed a trademark application for a band name. The question underneath all of this doctrine was simpler than any of it: the answer the Court gave was that government may not decide which perspectives about identity are acceptable enough to qualify for equal treatment under the law. That principle has traveled far beyond trademark law, and it is still accumulating consequences.
One reason Tam has endured is that it attracted an unusual coalition of supporters who disagreed about almost everything except the danger of letting government decide which viewpoints deserve equal treatment.
For background on the original decision, see What Matal v. Tam Actually Decided — And What It Didn't. For First Amendment and IP questions, simontam.org/ip-law-keynote-speaker is the place to start.
