Vidal v. Elster, 602 U.S. ___ (2024) (2024)

NOTICE: This opinion is subject toformal revision before publication in the United States Reports.Readers are requested to notify the Reporter of Decisions, SupremeCourt of the United States, Washington, D.C. 20543,pio@supremecourt.gov, of any typographical or other formalerrors.SUPREME COURT OF THE UNITED STATES_________________No. 22–704_________________KATHERINE K. VIDAL, UNDER SECRETARY OFCOMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, UNITED STATESPATENT AND TRADEMARK OFFICE, PETITIONER v. STEVE ELSTERon writ of certiorari to the united statescourt of appeals for the federal circuit[June 13, 2024]Justice Thomas announced the judgment of theCourt and delivered the opinion of the Court with respect to PartsI, II, and IV, and an opinion with respect to Part III, in whichJustice Alito and Justice Gorsuch join.[1]*Steve Elster sought to register the trademark“Trump too small.” But, the Patent and Trademark Office (PTO)refused to register the mark because the Lanham Act prohibitsregistration of a trademark that “[c]onsists of or comprises a name... identifying a particular living individual exceptby his written consent.” 60Stat. 428, 15 U.S.C.§1052(c). Elster contends that this prohibition violates his FirstAmendment right to free speech. We hold that it does not.IA trademark is “a symbol or a device todistinguish the goods or property made or sold by the person whosemark it is, to the exclusion of use by all other persons.”Trade-Mark Cases, 100 U.S.82, 92 (1879); see also §1127. As we have explained, “[t]heprinciple underlying trademark protection is that distinctivemarks—words, names, symbols, and the like—can help distinguish aparticular artisan’s goods from those of others.” B&BHardware, Inc. v. Hargis Industries, Inc., 575 U.S.138, 142 (2015). So “[o]ne who first uses a distinct mark incommerce thus acquires rights to that mark,” which “includepreventing others from using the mark.” Ibid.Trademark rights are primarily a matter of statelaw, but an owner can obtain important rights through federalregistration. The Lanham Act creates a federaltrademark-registration system administered by the PTO. Federal“[r]egistration of a mark is not mandatory,” and “[t]he owner of anunregistered mark may still use it in commerce and enforce itagainst infringers.” Iancu v. Brunetti, 588 U.S. 388,391 (2019). Federal registration, however, “confers important legalrights and benefits.” B&B Hardware, 575 U.S., at142 (internal quotation marks omitted). For example, a registrantmay rely on registration in litigation as prima facie evidence ofhis exclusive right to use the mark. §1115(a). And, registrationprovides nationwide constructive notice of the registrant’s claimof ownership of the mark. §1072.Only marks that meet certain criteria arefederally registerable. Among other criteria, the Lanham Actcontains what we will call the “names clause”—a prohibition on theregistration of a mark that “[c]onsists of or comprises a name... identifying a particular living individual exceptby his written consent.” §1052(c). The names clause excludes fromregistration “not only full names but also surnames, shortenednames, and nicknames, so long as the name does in fact identify aparticular living individual.” 2 J. McCarthy, Trademarks and UnfairCompetition §13:37, p.31 (5th ed. 2024) (McCarthy).Steve Elster sought to register the trademark“Trump too small,” accompanied by an illustration of a handgesture, to use on shirts and hats. The mark draws on an exchangebetween then-candidate Donald Trump and Senator Marco Rubio duringa 2016 Presidential primary debate.The PTO examiner refused registration under thenames clause because the mark used President Trump’s name withouthis consent. The Trademark Trial and Appeal Board affirmed, and italso rejected Elster’s argument that the names clause violates hisFirst Amendment right to free speech.[2] The Federal Circuit reversed, holding that the namesclause violated the First Amendment. Inre Elster, 26F.4th 1328 (CA Fed. 2022). The court first concluded that thenames clause is a viewpoint-neutral, content-based restriction onspeech subject to at least intermediate scrutiny. See id.,at 1331, 1333–1334. It next concluded that the Government could notsatisfy even intermediate scrutiny because the names clause doesnot advance any substantial governmental interest. See id.,at 1339.We granted certiorari to resolve whether theLanham Act’s names clause violates the First Amendment. 598U.S. ___ (2023).IIAThe First Amendment provides that “Congressshall make no law ... abridging the freedom of speech.”In general, we have held that the First Amendment prohibits theGovernment from restricting or burdening “expression because of itsmessage, its ideas, its subject matter, or its content.”Ashcroft v. American Civil Liberties Union, 535 U.S.564, 573 (2002) (internal quotation marks omitted). “Whenenforcing this prohibition, our precedents distinguish betweencontent-based and content-neutral regulations of speech.”National Institute of Family and Life Advocates v.Becerra, 585 U.S. 755, 766 (2018). A content-basedregulation “target[s] speech based on its communicative content,”restricting discussion of a subject matter or topic. Reed v.Town of Gilbert, 576 U.S.155, 163 (2015). “As a general matter,” a content-basedregulation is “‘presumptively unconstitutional and may bejustified only if the government proves that [it is] narrowlytailored to serve compelling state interests.’” NationalInstitute of Family and Life Advocates, 585 U.S., at 766.Our precedents distinguish further a particularly “egregious formof content discrimination”—viewpoint discrimination.Rosenberger v. Rector and Visitors of Univ. of Va.,515 U.S.819, 829 (1995). A viewpoint-based regulation targets notmerely a subject matter, “but particular views taken by speakers ona subject.” Ibid. It is also generally subject to heightenedscrutiny, though viewpoint discrimination’s “violation of the FirstAmendment is ... more blatant.” Ibid. Becauseour precedents dictate that these distinctions inform ourassessment under the First Amendment, we start with them toevaluate the names clause.In the trademark context, we have twiceconcluded that trademark restrictions that discriminate based onviewpoint violate the First Amendment. In Matal v.Tam, 582 U.S. 218, 223 (2017), we held that the Lanham Act’sbar on disparaging trademarks violated the First Amendment. AllJustices in Tam agreed that this bar was viewpoint basedbecause it prohibited trademarks based only on one viewpoint:“[g]iving offense.” Id., at 243 (plurality opinion); seealso id., at 248–249 (Kennedy, J., concurring in part andconcurring in judgment). And, in Brunetti, we held that theLanham Act’s bar on trademarks containing immoral or scandalousmatter likewise violated the First Amendment. 588 U.S., at390. We concluded that the bar was viewpoint based because itprohibited trademarks based only on one viewpoint, immoral orscandalous matter, while permitting trademarks based on otherviewpoints. Id., at 393–394.The names clause does not facially discriminateagainst any viewpoint. No matter the message a registrant wants toconvey, the names clause prohibits marks that use another person’sname without consent. It does not matter “whether the use of [the]name is flattering, critical or neutral.” 2 McCarthy §13:37.50. TheGovernment is thus not singling out a trademark “based on thespecific motivating ideology or the opinion or perspective of thespeaker.” Reed, 576 U.S., at 168 (internal quotationmarks omitted); accord, Brunetti, 588 U.S., at 394(explaining that a viewpoint-based trademark law “distinguishesbetween two opposed sets of ideas”).Elster suggests that the names clause verges onviewpoint discrimination in practice. According to Elster, it iseasier to obtain consent for a trademark that flatters a personrather than mocks him. This Court has found that a law candiscriminate based on viewpoint in its practical operation. SeeSorrell v. IMS Health Inc., 564U.S. 552, 565 (2011); R.A.V. v. St.Paul, 505 U.S.377, 391 (1992). But, here, there are many reasons why a personmay be unable to secure another’s consent to register a trademarkbearing his name. Even when the trademark’s message is neutral orcomplimentary, a person may withhold consent to avoid anyassociation with the goods, or to prevent his name from beingexploited for another’s gain.[3]Although the names clause is not viewpointbased, it is content based. As we have explained, a restriction onspeech is content based if the “law applies to particular speechbecause of the topic discussed or the idea or message expressed.”Reed, 576 U.S., at 163. The names clause turns on thecontent of the proposed trademark—whether it contains a person’sname. If the trademark does contain a person’s name, and theregistrant lacks that person’s consent, then the names clauseprohibits registration. Because trademarks containing names “aretreated differently from [trademarks] conveying other types ofideas,” the names clause is content based. Id., at 164.We thus confront a situation we did not addressin Tam or Brunetti. In Tam, we were careful to“leave open” the framework “for deciding free speech challenges toprovisions of the Lanham Act.” 582 U.S., at 245, n.17(plurality opinion); see id., at 244, n.16. And, inBrunetti, we declined to “say anything about how to evaluateviewpoint-neutral restrictions on trademark registration.” 588U.S., at 398,n.BBecause we must now consider for the firsttime the constitutionality of a content-based—butviewpoint-neutral—trademark restriction, we begin by addressing howthe nature of trademark law informs the applicable constitutionalscrutiny. Although a content-based regulation of speech ispresumptively unconstitutional as a general matter, we have notdecided whether heightened scrutiny extends to a viewpoint-neutraltrademark restriction. Several features of trademark counselagainst a perse rule of applying heightened scrutinyto viewpoint-neutral, but content-based trademark regulations.Most importantly, trademark rights have alwayscoexisted with the First Amendment, despite the fact that trademarkprotection necessarily requires content-based distinctions. Seegenerally Tam, 582 U.S., at 223–224; Trade-MarkCases, 100 U.S., at 92. Trademark rights “ha[ve] beenlong recognized by the common law and the chancery courts ofEngland and of this country, and by the statutes of some of theStates,” and that protection continues today. Id., at 92. Aswe all agree, this “[h]istory informs the understanding thatcontent-based distinctions are an intrinsic feature of trademarks.”Post, at 6 (Sotomayor, J., concurring in judgment); accord,post, at 2–6 (Barrett, J., concurring in part). And, for theduration of that history, the inherently content-based nature oftrademark law has never been a cause for constitutionalconcern.Our country has recognized trademark rightssince the founding. See B. Pattishall, The ConstitutionalFoundations of American Trademark Law, 78 Trademark Rep. 456,457–459 (1988). At the outset, there were few recorded decisions,and the law developed slowly. Much of early American trademark law“was lifted essentially from that of England.” Id., at 457.The protection of trademarks under English law was an inherentlycontent-based endeavor. For example, an early English law made it“lawful to and for every Trader, Dealer and Weaver of LinenManufacture, to weave his Name, or fix some known Mark in any Pieceof Linen Manufacture by him made.” 13 Geo. I, c. 26, p.458(1726). And, a person could be liable for fraud if he sold aproduct under another person’s mark. See, e.g.,id., at 459; Singleton v. Bolton, 3 Dougl.293, 99 Eng. Rep. 661 (K. B. 1783); Southern v. How,Pop. 143, 144, 79 Eng. Rep. 1243, 1244 (K. B. 1618) (mentioningthat an “action did well lie” if a clothier “used the same mark” asanother); J. Baker, Sources of English Legal History: Private Lawto 1750, p.675 (2d ed. 2010) (discussing J. G. v.Samford, also known as Sandforth’s Case, which heldin 1584 that an action could lie when a clothier “used another[clothier’s] mark”); see also G. Jacob, A New-Law Dictionary (1729)(defining “Mark to Goods” as “what ascertains the Property orGoodness thereof ... And if one Man shall use theMark of another, to the Intent to do him Damage, Action uponthe Case lieth”). So, the content of the mark (whether it was thesame as another person’s) triggered the restriction.Although there was an early push for federallegislation to protect trademarks, no such law was enacted duringour country’s infancy. See B. Paster, Trademarks—Their EarlyHistory, 59 Trademark Rep. 551, 565–566 (1969); see also F.Schechter, Historical Foundations of the Law Relating toTrade-Marks 131 (1925) (Schechter). Instead, trademark law felllargely within “the province of the States” for the 18th and mostof the 19th century. Tam, 582 U.S., at 224. Forexample, Massachusetts passed a private bill incorporating a cottoncorporation on the condition that it affix a label to its goods“with the seal of the said Corporation.” 1 Mass. Private andSpecial Laws, 1789, ch. 43, §5, p.226 (1805). The law alsoprevented others from “us[ing] a like seal or label” by subjectingthem to treble damages. Ibid. To be sure, for most of ourfirst century, most commerce was local and most consumers thereforeknew the source of the goods they purchased. See R. Bone, HuntingGoodwill: A History of the Concept of Goodwill in Trademark Law, 86B.U. L.Rev. 547, 575 (2006). “[E]ven as late as 1860the term ‘trademark’ really denoted only the name of themanufacturer.” B. Pattishall, Two Hundred Years of AmericanTrademark Law, 68 Trademark Rep. 121, 128 (1978). There wasnonetheless “a certain amount of litigation in the state courts inthe early nineteenth century,” though it went unrecorded. Schechter133.The “first reported American decision that maybe described as a trademark case” involved a dispute over thecontent of a mark—and in particular, the use of a person’s name.Pattishall, Constitutional Foundations, at 460. In Thomsonv. Winchester, 36 Mass. 214, 216 (1837), Samuel Thomson—whosold a medicine under the name “Thomsonian Medicines”—brought suitagainst another Massachusetts druggist who sold an allegedlyinferior product under the same name. The court held that thedruggist could be liable for fraud if he passed the medicine off asthat of Thomson. Ibid.In a similar vein, the first reported trademarkcase in federal court revolved around a trademark’s content.Justice Story, sitting as Circuit Justice, granted an injunction toprohibit a seller of spools from infringing on theplaintiff’s trademark of “Taylor’s Persian Thread.”Taylor v. Carpenter, 3 Story 458 (D. Mass. 1844).Justice Story explained that, by using the trademark, the seller“imitated ... both descriptions of spools and labels,red and black, of the plaintiffs,” and that the principlesprohibiting such infringement were at that time “very familiar tothe profession” and not “susceptible of any judicial doubt.”Id., at 464.Recorded trademark law began to take off in thelast decades of the 19th century—after the ratification of theFourteenth Amendment in 1868—and its established content-basednature continued. See Schechter 134; Pattishall, Two Hundred Years,at 133. American commerce became more national in character, and,perhaps because of this shift, Congress enacted the first federaltrademark law in 1870. Although States retained their importantrole, “Congress stepped in to provide a degree of nationaluniformity” for trademark protection. Tam, 582 U.S.,at 224 (citing Act of July 8, 1870, §§77–84, 16Stat.210–212).[4]This first law contained prohibitions on whatcould be protected as a trademark. For example, the law would notprotect a trademark that contained “merely the name of a person... only, unaccompanied by a mark sufficient todistinguish it from the same name when used by other persons.”Id., at 211. It thus restricted a trademark based upon itscontent (i.e., whether it contained more than aname). As trademark disputes increased, courts continued to assesstrademarks based on their content. For example, this Court’s firsttrademark decision explained that a trademark cannot consist of apurely geographical name, rejecting an attempt by one of severalcoal producers in Pennsylvania’s Lackawanna Valley to trademark“Lackawanna coal.” Canal Co. v. Clark, 13 Wall. 311,321 (1872). Throughout its development, trademark law has requiredcontent-based distinctions.That did not change when Congress enacted theLanham Act in 1946. The Act’s comprehensive system for federalregistration of trademarks continues to distinguish based on amark’s content. See Restatement (Third) of Unfair Competition §9,Comment e (1993) (Restatement) (“The Lanham Act is generallydeclarative of existing law, incorporating the principal featuresof common law trademark protection”). The Act defines a trademarkto include “any word, name, symbol, or device, or any combinationthereof” that a person uses “to identify and distinguish hisor her goods ... from those manufactured or sold byothers and to indicate the source of the goods.” §1127. When theGovernment defines what may be registered as a trademark, itnecessarily decides that some words or images cannot be used in amark. To take one example, the Lanham Act bars the registration of“a mark which so resembles [another’s] mark ... as tobe likely ... to cause confusion, or to cause mistake,or to deceive.” §1052(d). It is impossible to determine whether onetrademark is the same as (or confusingly similar to) anotherwithout looking at the content of the two marks.This history, reflected in the Lanham Act stilltoday, demonstrates that restrictions on trademarks have alwaysturned on a mark’s content. But, despite its content-based nature,trademark law has existed alongside the First Amendment from thebeginning. That longstanding, harmonious relationship suggests thatheightened scrutiny need not always apply in this uniquecontext.The content-based nature of trademark protectionis compelled by the historical rationales of trademark law. Atrademark has generally served two functions: “indicating ownershipof the goods to which it [is] affixed” and “indicating the sourceor origin of manufacture.” Schechter 122. Indicating ownership of agood was needed in part to “fi[x] responsibility for defectivemerchandise.” Restatement §9, Comment b. And, indicating thesource of the good helped “prospective purchasers ...make their selections based upon the reputation, not merely of theimmediate vendor, but also of the manufacturer.” Ibid. Bothgoals thus reflect that trademarks developed historically toidentify for consumers who sold the goods (the vendor) and who madethe goods (the manufacturer). See ibid. In that vein, abasic function of trademark law has always been to “prohibi[t]confusion as to the source of good or services.” Pattishall,Constitutional Foundations, at 458; see also Jack Daniel’sProperties, Inc. v. VIP Products LLC, 599 U.S. 140, 147(2023) (“Confusion as to source is the bête noire of trademarklaw”). Indicating ownership and the manufacturing source touch onthe content of the mark—i.e., from whom the productcame. And, as we have explained, policing trademarks so as toprevent confusion over the source of goods requires looking to themark’s content. Supra, at 10.Because of the uniquely content-based nature oftrademark regulation and the longstanding coexistence of trademarkregulation with the First Amendment, we need not evaluate a solelycontent-based restriction on trademark registration underheightened scrutiny. See R.A.V., 505 U.S.,at 387 (“Even the prohibition against content discrimination thatwe assert the First Amendment requires is not absolute”); JackDaniel’s, 599 U.S., at 159 (explaining that, in somecirc*mstances, “trademark law [can] prevai[l] over the FirstAmendment” (internal quotation marks omitted)); post, at 6(opinion of Sotomayor, J.); post, at 6–7 (opinion ofBarrett, J.).CWe have acknowledged that trademark rights andrestrictions can “play well with the First Amendment.” JackDaniel’s, 599 U.S., at 159 (internal quotation marksomitted). In this case, we do not delineate an exhaustive frameworkfor when a content-based trademark restriction passes muster underthe First Amendment. But, in evaluating a solely content-basedtrademark restriction, we can consider its history and tradition,as we have done before when considering the scope of the FirstAmendment. See City of Austin v. Reagan Nat. Advertisingof Austin, LLC, 596 U.S. 61, 75 (2022); id., at 101(Thomas, J., dissenting); R.A.V., 505U.S., at 382–383; Roth v. United States,354 U.S.476, 482–483 (1957).The Lanham Act’s names clause has deep roots inour legal tradition. Our courts have long recognized thattrademarks containing names may be restricted. And, these namerestrictions served established principles. This history andtradition is sufficient to conclude that the names clause—acontent-based, but viewpoint-neutral, trademark restriction—iscompatible with the First Amendment. We need look no further inthis case.1Restrictions on trademarking names have a longhistory. See generally 2 McCarthy §13:5. Such restrictions havehistorically been grounded in the notion that a person hasownership over his own name, and that he may not be excluded fromusing that name by another’s trademark. As the Court has explained,“[a] man’s name is his own property, and he has the same right toits use and enjoyment as he has to that of any other species ofproperty.” Brown Chemical Co. v. Meyer, 139 U.S.540, 544 (1891). It is therefore “an elementary principle thatevery man is entitled to the use of his own name in his ownbusiness.” F. Treadway, Personal Trade-Names, 6 Yale L. J. 141,143–144 (1897) (Treadway); see also A. Greeley, Foreign Patent andTrademark Laws §138, p.135 (1899) (“The right of any one toplace his own name on goods sold by him is recognized as a naturalright and cannot be interfered with”). “The notion that peopleshould be able to use their own name to identify their goods orbusiness is deeply rooted in American mores.” B. Pattishall, D.Hilliard, & J. Welch, Trademarks and Unfair Competition §2.06(2001).Recognizing a person’s ownership over his name,the common law restricted the trademarking of names. It prevented aperson from trademarking any name—even his own—by itself. In “theearly years of trademark law,” courts recognized that “therecan be no trade-mark in the name of a person, because... every person has the right to use his own name forthe purposes of trade.” 2 McCarthy §13:5 (internal quotation marksomitted); see also Restatement §14, Comment e (“[A]t earlycommon law, the recognition of an unencumbered right to use one’sname in trade effectively precluded the existence of trademark ortrade name rights in personal names”); W. Browne, Law ofTrade-Marks §206, p.219 (2d ed. 1885) (“The rule is, that aman cannot turn his mere name into a trade-mark”); McLean v.Fleming, 96 U.S.245, 252 (1878) (explaining that a person cannot obtain “theexclusive use of a name, merely as such, without more”).The common law did, however, allow a person toobtain a trademark containing his own name—with a caveat: Aperson could not use a mark containing his name to the exclusion ofa person with the same name. “A corollary of the right touse one’s own name and identity in trade is the right to stopothers from doing so—at least those who don’t share the same name.”J. Rothman, Navigating the Identity Thicket, 135 Harv. L. Rev.1271, 1306 (2022); see also Treadway 143–144. In other words, aperson’s right to his name cannot be exclusive as to other peoplebearing the same name: John Smith cannot acquire a trademark thatprohibits other John Smiths from using their own names. SeeMcLean, 96 U.S., at 252 (“[H]e cannot have such aright, even in his own name, as against another person of the samename, unless such other person uses a form of stamp or label solike that used by the complaining party as to represent that thegoods of the former are of the latter’s manufacture”); accord,Brown Chemical, 139 U.S., at 542; MeNeely v.MeNeely, 62 N.Y. 427, 432 (Ct. App. 1875); see also Treadway143; accord, post, at 10 (opinion of Barrett, J.). Considerthe case of John L. Faber and John H. Faber, two men whoindependently manufactured lead pencils near Nuremberg, Germany.Both men stamped the pencils they manufactured with their sharedsurname. After recognizing that each man “had the right to put hisown name on his own pencils,” the New York Supreme Court declinedto allow one man to effectively trademark the other man’s name.Faber v. Faber, 3 Abb. Pr. (N. S.) 115, 116(1867).We see no evidence that the common law affordedprotection to a person seeking a trademark of another livingperson’s name. To the contrary, English courts recognized thatselling a product under another person’s name could be actionablefraud. See, e.g., Singleton, 3 Dougl. 293, 99Eng. Rep. 661; Croft v. Day, 7 Beav. 84, 88, 49 Eng.Rep. 994, 996 (1843) (“[N]o man has a right to sell his goods asthe goods of another”). This recognition carried over to ourcountry. See McLean, 96 U.S., at 252 (“[I]t isdoubtless correct to say that a person may have a right in his ownname as a trade-mark as against a trader or dealer of a differentname”); see also Faber, 3 Abb. Pr. (N. S.), at 116. Even inthe absence of fraud, it would be difficult, if not impossible, tosquare such a right to trademark another person’s name with ourestablished understanding that “[a] person may have a right in hisown name as a trade-mark, as against a person of a different name.”Gilman v. Hunnewell, 122 Mass. 139, 148 (1877); seealso Thaddeus Davids Co. v. Davids Mfg. Co.,233 U.S.461, 472 (1914) (highlighting persons’ “right to use their ownname in trade”); Faber, 3 Abb. Pr. (N. S.), at 116 (“[T]hemaker had the right to put his own name on his own pencils”).Relatedly, one could contract for the use of another person’s namein his business. See, e.g., McLean, 96U.S., at 249 (explaining that a “physician whose name thepills bear ... sold the right to use the same” toanother); see also L. E. Waterman Co. v. Modern PenCo., 235 U.S.88, 96 (1914); Meriden Britannia Co. v. Parker,39 Conn. 450, 453 (1872) (“[T]hey made a contract with thepetitioners, by which, and by subsequent contracts, the petitionersacquired the right ... to manufacture and sell platedspoons and forks with the name ‘Rogers’ stamped thereon as acomponent part of a trade mark”). Such contracts would make littlesense if one could use another living person’s name in business atwill. The common-law approach to trademarking names thus protectedonly a person’s right to use his own name.This common-law understanding carried over intofederal statutory law. The first federal trademark law contained arequirement that a trademark contain more than merely a name. SeeAct of July 8, 1870, §79, 16Stat. 211. That requirement remainslargely intact. See §1052(e)(4) (prohibiting registration of atrademark if it “is primarily merely a surname”). A few decadeslater, federal trademark law emphasized “‘[t]hat nothingherein shall prevent the registration of a trade-mark otherwiseregisterable because of its being the name of theapplicant.’” Act of Feb. 18, 1911, ch. 113, 36Stat. 918(emphasis added). And, the Lanham Act later “incorporat[ed] theprincipal features of common law trademark protection,” thereby“declar[ing] ... existing law” rather than writingtrademark law from scratch. Restatement §9, Comment e; seealso W. Derenberg, Trade-Mark Protection and Unfair Trade 22 (1936)(explaining that the “function [of federal trademark law] isessentially an evidential one, reflecting the underlying common lawtrade-mark right with the existence of which it rises and falls”).It is thus unsurprising that the Lanham Act included the namesclause, prohibiting the registration of a mark containing “a name... identifying a particular living individual exceptby his written consent.” §1052(c). The names clause reflects thecommon law’s careful treatment of names when it comes totrademarks.The restriction on trademarking names alsoreflects trademark law’s historical rationale of identifying thesource of goods. See Hanover Star Milling Co. v.Metcalf, 240 U.S.403, 412 (1916) (“The primary and proper function of atrade-mark is to identify the origin or ownership of the article towhich it is affixed”); accord, post, at 8 (opinion ofBarrett, J.). Trademark protection ensures that consumers know thesource of a product and can thus evaluate it based upon themanufacturer’s reputation and goodwill. See Restatement §9, Commentb; see also Powell v. Birmingham Vinegar BreweryCo., 13 Rep. Pat. Cas. 235, 250 (Ct. App. 1896) (Lindley,L.J.) (“His mark, as used by him, has given a reputation tohis goods. His trade depends greatly on such reputation. His marksells his goods”). By barring a person from using another’s name,the names clause reflects the traditional rationale of ensuringthat consumers make no mistake about who is responsible for aproduct. See also Hanover Star Milling Co., 240 U.S.,at 412–413 (“The essence of the wrong [for trademark infringement]consists in the sale of the goods of one manufacturer or vendor forthose of another”).Moreover, the names clause respects theestablished connection between a trademark and its protection ofthe mark- holder’s reputation. We have long recognized that atrademark protects the markholder’s reputation. See McLean,96 U.S., at 254 (explaining that a trademark “enable[s amark-holder] to secure such profits as result from his reputationfor skill, industry, and fidelity”); see also Hanover StarMilling Co., 240 U.S., at 412–413, 414; Celluloid Mfg.Co. v. Cellonite Mfg. Co., 32 F. 94, 97 (CC NJ 1887)(Bradley, J.). This protection reflects that a mark may “acquir[e]value” from a person’s “expenditure of labor, skill, and money.”San Francisco Arts & Athletics, Inc. v. United StatesOlympic Comm., 483 U.S.522, 532 (1987) (internal quotation marks omitted); accord,McLean, 96 U.S., at 251. Accordingly, when a personuses another’s mark, “the owner is robbed of the fruits of thereputation that he had successfully labored to earn.” AmoskeagMfg. Co. v. Spear & Ripley, 2 Sandf. 599, 606 (NYSuper. Ct. 1849). A person’s trademark is “his authentic seal,” and“[i]f another uses it, he borrows the owner’s reputation, whosequality no longer lies within his own control.” Yale Elec.Corp. v. Robertson, 26 F.2d 972, 974 (CA2 1928) (Hand,J.). “This is an injury, even though the borrower does not tarnish*t, or divert any sales by its use; for a reputation, like a face,is the symbol of its possessor and creator, and another can use itonly as a mask.” Ibid.This connection between a trademark andreputation is even stronger when the mark contains a person’s name.“[I]s not a man’s name as strong an instance of trade-mark as canbe suggested?” Ainsworth v. Walmsley, 1 L.R.,Eq. 518, 525 (1866). In fact, the English common law of trademarksarose from the fact that “those who sold goods ... thatwere the fruit of their own labor or craftsmanship [began to]identif[y] those products ... with their own names.”Pattishall, Constitutional Foundations, at 457. As we haveexplained, virtually up until the Fourteenth Amendment’s adoption,a trademark “really denoted only the name of the manufacturer.”Pattishall, Two Hundred Years, at 128. And, this Court has longassociated names with the good will they may bear. SeeMcLean, 96 U.S., at 252; L. E. Waterman Co.,235 U.S., at 96 (“He purported to transfer to the partnershipthe good will attaching to his name”). The names clause thusprotects “the reputation of the named individual” by preventinganother person from using his name. Post, at 9 (opinion ofBarrett, J.).Applying these principles, we have recognizedthat a party has no First Amendment right to piggyback off thegoodwill another entity has built in its name. In San FranciscoArts & Athletics, Inc., the Court upheld a provision of theAmateur Sports Act of 1978 that prohibited “‘anyperson’” from using the word “‘Olympic’” forcertain purposes “‘[w]ithout the consent’” of theU.S. Olympic Committee (USOC), and subjected violations to“‘the remedies provided in the Lanham Act.’” 483U.S., at 528 (quoting 36 U.S.C. §380(a);alteration omitted). The Court rejected the argument that theconsent requirement violated the First Amendment because “Congressreasonably could conclude” that the value of the word“‘Olympic’ was the product of the USOC’s ‘own talents andenergy.’” 483 U.S., at 532–533 (quoting Zacchiniv. Scripps-Howard Broadcasting Co., 433U.S. 562, 575 (1977)). Although the petitioner certainly had aFirst Amendment right to speak on political matters, it lacked theright to “exploit the commercial magnetism” of the word “Olympic”and the USOC’s hard-won efforts in giving that word value. 483U.S., at 539 (internal quotation marks omitted). The namesclause guards a similar interest. By protecting a person’s use ofhis name, the names clause “secur[es] to the producer the benefitsof [his] good reputation.” Park ’N Fly, Inc. v. DollarPark & Fly, Inc., 469 U.S.189, 198 (1985); see also Pattishall, Two Hundred Years, at 121(explaining how trademark law protects a person’s “commercialidentity, thereby [allowing him] to enjoy the fruits of his ownlabor”).2We conclude that a tradition of restrictingthe trademarking of names has coexisted with the First Amendment,and the names clause fits within that tradition. Though theparticulars of the doctrine have shifted over time, the consistentthrough line is that a person generally had a claim only to his ownname. The names clause reflects this common-law tradition byprohibiting a person from obtaining a trademark of another livingperson’s name without consent, thereby protecting the other’sreputation and goodwill.[5]None of this is to say that the Governmentcannot innovate when it comes to trademark law. A firm grounding intraditional trademark law is sufficient to justify thecontent-based trademark restriction before us, but we do not opineon what may be required or sufficient in other cases. To be sure,as Justice Barrett observes, a case presenting a content-basedtrademark restriction without a historical analogue may require adifferent approach. Post, at 15. But, we need not developsuch a comprehensive theory to address the relatively simple casebefore us today. See post, at 1 (Kavanaugh, J., concurringin part).We conclude that the names clause is of a piecewith a common-law tradition regarding the trademarking of names. Wesee no reason to disturb this longstanding tradition, whichsupports the restriction of the use of another’s name in atrademark.IIIOur colleagues would address the names clausewith two analogies. Neither is compelling in this case. Under bothanalogies, the test would boil down to what a judge believes is“reasonable in light of the purpose” of trademark law. Post,at 5 (opinion of Sotomayor, J.); see post, at 7–8 (opinionof Barrett, J.). But, no matter the approach taken, we all agreethat the names clause does not violate the First Amendment.Justice Sotomayor would pull “strands ofprecedent” together to conclude that heightened scrutiny does notapply to trademark registration because it is a Governmentinitiative or benefit. Post, at 8. This conclusion restsprimarily upon cases in which the Government provides a cashsubsidy or conditions the use of a public payroll to collect uniondues. See ibid. But, those cases “occupy a special area ofFirst Amendment case law, and they are far removed from theregistration of trademarks.” Tam, 582 U.S., at 241(plurality opinion). The Government- benefit cases are an ill fitfor the names clause, and we would not graft this precedent, whichJustice Sotomayor acknowledges is not controlling, onto thistrademark dispute. Post, at 8–9.Justice Barrett, echoed by Justice Sotomayor,would import the test that we have used for a “limited publicforum.” Our precedents hold that the Government “may create a forumthat is limited to use by certain groups or dedicated solely to thediscussion of certain subjects.” Pleasant Grove City v.Summum, 555 U.S.460, 470 (2009). Justice Barrett provides little explanationfor why that approach makes sense in the trademark context—shesimply declares that the limited public forum framework “is apt”due to the content-based nature of trademark law. Post, at7. Although she attempts to cabin the analogy to the content-basednature, the limited public forum test is quite obviously aboutcreating a forum. And, there is reason to doubt that thefederal trademark register is analogous to a limited public forum.To start, unlike a speaker in a limited public forum, a markholderdoes not communicate with customers on the register. Rather, as theGovernment acknowledges, the register “is a way of warningpotential infringers that they risk liability if they use the sameor confusingly similar marks.” Tr. of Oral Arg. 19. The Governmenthas also previously asserted that it did not create a forum forspeech by providing for the federal registration of trademarks. SeeReply Brief in Matal v. Tam, O. T. 2016, No. 15–1293,p.4 (“[T]he government has not created a forum here”); Tr. ofOral Arg. in Iancu v. Brunetti, O. T. 2018, No.18–302, p.27 (“[W]e don’t regard it as a limited publicforum”). Without an analogous forum, it is hard to see why the testfor a limited public forum should apply. We see no need to adopt apotentially fraught analogy to resolve the names clause’sconstitutionality.Despite the differences in methodology, bothJustice Sotomayor and Justice Barrett reach the same conclusionthat the names clause does not violate the First Amendment. On thebottom line, there is no dispute. Rather than adopt areasonableness test premised upon loose analogies, however, weconclude that the names clause is grounded in a historicaltradition sufficient to demonstrate that it does not run afoul ofthe First Amendment.IVOur decision today is narrow. We do not setforth a comprehensive framework for judging whether allcontent-based but viewpoint-neutral trademark restrictions areconstitutional. Nor do we suggest that an equivalent history andtradition is required to uphold every content-based trademarkrestriction. We hold only that history and tradition establish thatthe particular restriction before us, the names clause in §1052(c),does not violate the First Amendment. Although an occasion mayarise when history and tradition cannot alone answer whether atrademark restriction violates the First Amendment, that occasionis not today. In a future case, we can address the “distinctquestion” whether “a viewpoint-neutral, content-based trademarkrestriction” is constitutional without “such a historicalpedigree.” Post, at 1 (opinion of Kavanaugh, J.). Thejudgment of the Court of Appeals isReversed.

SUPREME COURT OF THE UNITED STATES_________________No. 22–704_________________KATHERINE K. VIDAL, UNDER SECRETARY OFCOMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, UNITED STATESPATENT AND TRADEMARK OFFICE, PETITIONER v. STEVE ELSTERon writ of certiorari to the united statescourt of appeals for the federal circuit[June 13, 2024]Justice Barrett, with whom Justice Kaganjoins, with whom Justice Sotomayor joins as to Parts I, II, andIII–B, and with whom Justice Jackson joins as to Parts I and II,concurring in part.While I agree with the Court that the namesclause does not violate the First Amendment, I disagree with someof its reasoning. The Court claims that “history and tradition”settle the constitutionality of the names clause, rendering itunnecessary to adopt a standard for gauging whether a content-basedtrademark registration restriction abridges the right to freespeech. That is wrong twice over. First, the Court’s evidence,consisting of loosely related cases from the late-19th andearly-20th centuries, does not establish a historical analogue forthe names clause. Second, the Court never explains why hunting forhistorical forebears on a restriction-by-restriction basis is theright way to analyze the constitutional question. I would adopt astandard, grounded in both trademark law and First Amendmentprecedent, that reflects the relationship between content-basedtrademark registration restrictions and free speech. In my view,such restrictions, whether new or old, are permissible so long asthey are reasonable in light of the trademark system’s purpose offacilitating source identification.IContent-based speech regulations are, as ageneral matter, “presumptively unconstitutional.” Reed v.Town of Gilbert, 576 U.S.155, 163 (2015). “The rationale of the general prohibition,” wehave explained, “is that content discrimination ‘raises the specterthat the Government may effectively drive certain ideas orviewpoints from the marketplace.’”R.A.V. v. St. Paul,505 U.S.377, 387 (1992) (quoting Simon & Schuster, Inc. v.Members of N.Y. State Crime Victims Bd., 502 U.S.105, 116 (1991)). But we have also recognized that in certainsituations, this presumption is inapplicable, as “‘there isno realistic possibility that official suppression of ideas isafoot.’” Davenport v. Washington Ed. Assn.,551 U.S.177, 189 (2007) (quotingR.A.V., 505 U.S., at390).I agree with the Court that content-basedtrademark registration restrictions do not trigger the presumptionof unconstitutionality. See ante, at 6. Because federaltrademark law did not exist at the founding—and American trademarklaw did not develop in earnest until the mid-19th century—I do nottake the Court to be making a claim about the original meaning ofthe Free Speech Clause. But, as the Court implicitly recognizes,the absence of founding-era evidence does not mean thatcontent-based trademark registration restrictions are inherentlysuspect. More than a century’s worth of precedent reflects thattrademark law has always been content based without functioning asa ready tool of Government censorship. The First Amendment does notrequire us to upend this longstanding, stable system by treatingtrademark restrictions as “presumptively unconstitutional.”Reed, 576 U.S., at 163.AAs the Court explains, trademark law existedat the founding, albeit in nascent form. Ante, at 7; B.Pattishall, The Constitutional Foundations of American TrademarkLaw, 78 Trademark Rep. 456, 457–459 (1988). From the outset,trademark protection “was an inherently content-based endeavor.”Ante, at 7. Early English and American laws prohibitedproducers from placing another producer’s trademark on theirgoods—a prohibition that depended on comparing the content of themark with the content of the allegedly infringing use. Ante,at 7–8. That alone does not prove that every type ofcontent-based trademark regulation should escape heightenedscrutiny. More relevant is that courts and legislatures, inidentifying the marks that merit legal protection, have longdiscriminated on the basis of content. Ante, at 9–10. Thishistory, in my view, is key to understanding why we need notevaluate content-based trademark registration restrictions underheightened scrutiny.Once trademark law got off the ground in themid-19th century, it had an unmistakably content-based character.Thomson v. Winchester, the first reported Americantrademark case, involved two parties who both sold medicine underthe name “‘Thomsonian Medicines.’” 36 Mass. 214, 216(1837). See E. Rogers, Some Historical Matter ConcerningTrade-Marks, 9 Mich. L.Rev. 29, 42 (1910). The Court citesthis case as reflective of the content-based nature of trademarkprotection. Ante, at 8–9. True, Thomson explainedthat the defendant could be liable if he had sold his goods underthe plaintiff’s name as an attempted fraud. 36 Mass., at 216.But the court explained that the result would be different if thedefendant “call[ed his goods] Thomsonian as a generic termdesignating their general character.” Ibid. That was becauseThomson, the plaintiff, could not claim an exclusive right to usethe name “if [the] term had acquired a generic meaning, descriptiveof a general kind, quality and class of medicines.” Ibid. Inother words, whether a word or phrase could qualify for trademarkprotection depended on “its communicative content.” Reed,576 U.S., at 163.Roughly 10 years later, the New York SuperiorCourt further developed this content-based principle in AmoskeagMfg. Co. v. Spear & Ripley, 2 Sandf. 599 (1849),long “‘regarded as the leading American adjudication’”of a trademark dispute. B. Pattishall, Two Hundred Years ofAmerican Trademark Law, 68 Trademark Rep. 121, 125 (1978). Thecourt agreed that “[e]very manufacturer ... has anunquestionable right to distinguish the goods that he manufacturesor sells, by a peculiar mark or device, in order that they may beknown as his.” Amoskeag, 2 Sandf., at 605. But the law willonly “protec[t him] in the exclusive use” of marks that“designat[e] the true origin or ownership”—i.e., thesource—of the goods. Id., at 606. The manufacturer cannotclaim a protectable trademark in “words, letters, figures orsymbols” that indicate only the “name orquality”—i.e., not the source—of the goods.Ibid. After all, those who produce similar goods could usethe same words or symbols “with equal truth”—thus, they should have“an equal right to employ [them], for the same purpose.”Id., at 607.Courts repeated and applied this rule fordecades. See, e.g., Wolfe v. Goulard,18 How. Pr. 64, 67 (N.Y. Sup. Ct. 1859); Falkinburg v.Lucy, 35 Cal. 52, 64 (1868); Filley v.Fassett, 44 Mo. 168, 176–177 (1869); Congress SpringCo. v. High Rock Spring Co., 45 N.Y. 291, 295 (1871).For instance, a gin manufacturer could not claim an exclusive rightto the term “Schiedam Schnapps” if it already served as a commondescriptor of gin. Wolfe, 18 How. Pr., at 67. But a stovemanufacturer could trademark the term “‘Charter Oak,’”as a distinctive phrase not “merely descriptive of the style,quality, or character” of the product. Filley, 44 Mo., at176–177. Then, as now, courts understood that a mark meritsprotection only so far as it “identif[ies] the article to which itis affixed as that of the person adopting it, and distinguish[es]it from others.” Gillott v. Esterbrook, 47 Barb. 455,462 (N.Y. Sup. Ct. 1867), aff’d, 48 N.Y. 374 (1872);see also Matal v. Tam, 582 U.S. 218, 223 (2017). Thisinquiry is inherently content based.The ratification of the Fourteenth Amendment in1868, which incorporated the First Amendment against the States,did not prompt courts to change course.[1] They continued to scrutinize proposed marks based ontheir content. Likewise, this Court’s first trademark decision,issued in 1871, invoked Amoskeag’s content-based criteria todefine those trademarks “entitled to legal protection.” CanalCo. v. Clark, 13 Wall. 311, 323–324 (1872) (concludingthat “geographical names,” including “‘Pennsylvaniawheat’” and “‘Virginia tobacco,’” could not beprotected as trademarks, as they “point only at the place ofproduction, not to the producer”). See ante, at 10. Thus, atthe earliest point at which the First Amendment could have appliedto trademark law, content discrimination, particularly with respectto the very definition of a trademark, was the norm.Trademark registration restrictions followedsuit. Federal registration, though not required to enforce atrademark, “confers important legal rights and benefits ontrademark owners” and thus “helps to ensure that trademarks arefully protected.” Matal, 582 U.S., at 225–226(internal quotation marks omitted). Unsurprisingly, as the Courtnotes, Congress’s first trademark statute included certaincontent-based restrictions for federal registration. See Act ofJuly 8, 1870, §§77, 79, 16Stat. 210–211; ante, at 9. Andtoday, each of the Lanham Act’s registration criteria refers to thecontent of the applicant’s mark. See 15 U.S.C. §1052.Thus, just as courts have long identified the criteria fortrademark protection along content-based lines, Congress hasdefined the rules for enhanced trademark protection alongcontent-based lines.BThe upshot is that content discrimination haslong been “necessary for [trademark’s] purposes and limitations.”See Legal Services Corporation v. Velazquez,531 U.S.533, 543 (2001) (considering the “accepted usage” of a“particular medium” to determine the constitutionality of speechrestrictions within that medium). The law protects trademarksbecause they help consumers identify the goods that they intend topurchase and allow producers to “reap the financial rewardsassociated with the[ir] product’s good reputation.” JackDaniel’s Properties, Inc. v. VIP Products LLC, 599 U.S.140, 146 (2023); see also Falkinburg, 35 Cal., at 64. Buttrademarks can only fulfill these twin goals if they actually serveas source identifiers, see Jack Daniel’s, 599 U.S., at146, which, as explained above, is a content-based question, seesupra, at 4–5.These content-based trademark rules have longcoexisted with the Free Speech Clause, and their function isgenerally compatible with it. Courts have applied content-basedrules not to “suppres[s] ... ideas,” but simply toserve trademark law’s purposes. See Davenport, 551U.S., at 189 (internal quotation marks omitted). Indeed,these trademark restrictions can actually help prevent“interfere[nce] with the marketplace of ideas,” id., at 188,insofar as they ensure that a single producer cannot exclusivelyappropriate words or phrases in the general domain, seeWolfe, 18 How. Pr., at 67. This is not to say that theGovernment could not abuse content-based trademark registrationrestrictions—as I explain below, such restrictions are notinsulated from scrutiny. But they do not set off alarm bellssignaling the likelihood that “‘official suppression of ideasis afoot.’” Davenport, 551 U.S., at 189 (quotingR.A.V., 505 U.S., at 390).Therefore, I agree with the Court that we need not treatcontent-based trademark registration restrictions as presumptivelyunconstitutional. Ante, at 6.IIThough content-based registration restrictionsdo not trigger strict scrutiny, they are still subject to judicialreview. Thus, we must decide how to evaluate Elster’s challenge tothe names clause.The Solicitor General suggests that we draw ananalogy to another area that is inherently content based: thelimited public forum. When the government opens its property tospeech for a particular purpose, creating a limited public forum,it necessarily must “reserv[e the property] for certain groups orfor the discussion of certain topics.” Rosenberger v.Rector and Visitors of Univ. of Va., 515U.S. 819, 829 (1995). Content-based restrictions are “inherentand inescapable” in maintaining a forum for speech “compatible withthe intended purpose of the property.” Perry Ed. Assn. v.Perry Local Educators’ Assn., 460 U.S.37, 49 (1983). It is therefore inappropriate to view theserestrictions as presumptively unconstitutional and apply strictscrutiny. Still, not every restriction is permissible. To evaluatethese rules, we ask “whether they are reasonable in light of thepurpose which the forum at issue serves.” Ibid. This ensuresthat the government “respect[s] the lawful boundaries it has itselfset.” Rosenberger, 515 U.S., at 829.Though I would not shoehorn the trademarkregistration system into the definition of a “limited publicforum,” the Solicitor General’s analogy is apt.[2] Content discrimination is “[i]mplicit in theconcept of” the trademark registration system much like it isin a limited public forum. Perry, 460 U.S., at 49.Federal registration “help[s] protect marks” by conferring stronglegal rights on markowners who register them. B&B Hardware,Inc. v. Hargis Industries, Inc., 575U.S. 138, 142 (2015). Congress provided for “nationalprotection of trademarks in order to secure to the owner of themark the goodwill of his business and to protect the ability ofconsumers to distinguish among competing producers,” matchingtrademark’s historical goals. Park ’N Fly, Inc. v. DollarPark & Fly, Inc., 469 U.S.189, 198 (1985); see supra, at 4–5. A mark can onlyfulfill those goals to the extent that it “tells the public who isresponsible for [the] product.” Jack Daniel’s, 599U.S., at 146. This is a content-based requirement.Content-based criteria for trademarkregistration do not abridge the right to free speech so long asthey reasonably relate to the preservation of the markowner’sgoodwill and the prevention of consumer confusion. A particularrestriction will serve those goals if it helps ensure thatregistered marks actually function as source identifiers. Notably,“the lead criterion for registration is that the mark ‘in factserve as a “trademark” to identify and distinguish goods.’”Ibid. (quoting 3 J. McCarthy, Trademarks and UnfairCompetition §19:10 (5th ed. 2023) (McCarthy)). Other registrationcriteria help to carry out that threshold requirement. Forinstance, the Lanham Act prohibits the registration of marks thatare “merely descriptive” of the applicant’s goods. 15U.S.C. §1052(e)(1). As courts frequently explained inthe early years of trademark, marks that simply describe the kindand quality of the good do not necessarily identify its source. Seesupra, at 4–5. The bar on registering “deceptive” markslikewise prevents registered marks from misidentifying the sourceof the goods. §1052(a).The names clause passes muster under this test.A trademark that includes another living person’s name without herconsent has the obvious potential to create source confusion.Further, the clause helps protect producer goodwill. By freelyusing another person’s name in her mark, the markowner can unfairlycapitalize on the reputation of the named individual, who may be aproducer in her own right. Conversely, if the markowner’s goods orservices are shoddy, she might jeopardize the named individual’sreputation.Elster protests that consumers would not assumethat Donald Trump is responsible for the mark “‘Trump toosmall.’” Brief for Respondent 35. Thus, he argues that evenif the names clause generally guards against source confusion,refusing to register his proposed mark does not. But Congress isentitled to make categorical judgments, particularly whereheightened scrutiny does not apply. The Government can reasonablydetermine that, on the whole, protecting marks that include anotherliving person’s name without consent risks undermining the goals oftrademark. The names clause is therefore constitutional, bothfacially and as applied to Elster’s mark.IIIRather than adopt a generally applicableprinciple, the Court assesses the names clause in isolation,treating the supposed history and tradition of the clause asdeterminative. In my view, the historical record does not alonesuffice to demonstrate the clause’s constitutionality. For onething, the record does not support the Court’s conclusion. Foranother, I disagree with its choice to treat tradition asdispositive of the First Amendment issue.AFirst, the Court’s history. It is true that “atradition of restricting the trademarking of names” arose in thelate 19th century. Ante, at 19. As the Court says, apersonal name by itself, without any accompanying words or symbols,did not typically qualify as a trademark. See McLean v.Fleming, 96 U.S.245, 252–253 (1878); ante, at 13. And a person could notalways enforce a trademark including her own name against anotherwith the same name. See Brown Chemical Co. v. Meyer,139 U.S.540, 542 (1891); ante, at 14.[3] The first federal trademark statute reflected theseprinciples, prohibiting the registration of a mark that was “merelythe name of a person, firm, or corporation only, unaccompanied by amark sufficient to distinguish it from the same name when used byother persons.” §79, 16Stat. 211. Today, the Lanham Act continuesto bar the registration of a mark that is “primarily merely asurname.” 15 U.S.C. §1052(e)(4).But the Court also claims that the common lawdid not afford protection to a person seeking a trademark includinganother living person’s name (in other words, a rule akin tothe names clause). Ante, at 14. I am less sure. InThaddeus Davids Co. v. Davids Mfg. Co., 233 U.S.461 (1914), this Court explained that the 1905 federaltrademark statute contained “a fairly complete list of the marksused by dealers in selling their goods, which are not validtrademarks at common law.” Id., at 467 (internal quotationmarks omitted). Notably, this statute did not include the namesclause or any rough equivalent.[4] And if such a common-law rule existed, the majorityopinion does not identify it. Instead, the Court draws from sourcessuggesting that a person could not enforce a trademark with anotherindividual’s name against that individual. See ante,at 14–15. Nor could she fraudulently attempt to pass off her goodsas those of another person, using that person’s name. Ante,at 14. So far, so good. Yet the names clause prevents other uses ofsomeone else’s name that the common law may have allowed. And onthat score, the Court does not fully grapple with countervailingevidence.In 1860, the Supreme Court of Rhode Islandconcluded that the phrase “‘Roger Williams Long Cloth’”was “capable of distinguishing” the manufacturer’s goods and thusqualified as a trademark. Barrows v. Knight, 6R.I. 434, 438. “‘Roger Williams,’ though the name of afamous person,” the Court explained, was, “as applied to cottoncloth, a fancy name,” as would be the case with “any other her[o],living or dead.” Ibid. (emphasis added). Likewise, aNew York court upheld the plaintiffs’ exclusive right to use thename “Bismarck” to designate their paper collars, as they were thefirst to “appropriate” the name for that purpose. Messerolev. Tynberg, 4 Abb. Pr. (N. S.) 410, 414 (Ct. Com. Pl. 1868).The court thus rejected the defendant’s argument that theplaintiffs could not adopt “the name of a distinguished Germancitizen” as a trademark. Id., at 412. Summarizing, theSecond Circuit explained that “[t]he law permits the adoption as atrade-mark of the name of a person who has achieved fame anddistinction, provided the name is not descriptive of the quality orthe character of the article or a geographical name.” StephanoBros., Inc. v. Stamatopoulos, 238 F. 89, 93 (1916). Seealso Medlar & Holmes Shoe Co. v. Delsarte Mfg.Co., 46 A. 1089 (N.J. Ch. Ct. 1900) (“The name of afamous person, used merely as a fancy name, may become an exclusivetrade-mark”); W. Browne, Law of Trade-Marks §216, pp.225–226(2d ed. 1885) (same).[5]The legislative history of the Lanham Act alsoundercuts the Court’s conclusion. If the names clause codified anexisting common-law tradition, one might expect to see somereference to that tradition when the names clause was adopted. Butproponents of the clause offered a different justification.Discussing a predecessor version of the clause, Edward Rogers, theLanham Act’s primary drafter, remarked that “[t]he idea ofprostituting great names by sticking them on all kinds of goods isvery distasteful to me.” Trade-Marks: Hearings on H.R. 9041before the Subcommittee on Trade-Marks, House Committee on Patents,75th Cong., 3d Sess., 79 (1938) (H.R. 9041); see J. Litman,Keynote Address, 39 Cardozo Arts & Ent. L.J. 855, 856(2021). The Commissioner of the Patent Office agreed, noting the“shock to [his] sense of propriety to see liberty taken... with the names of celebrities of private life.”H.R. 9041, at 79. He then referred to the attemptedregistration of “the name of the duch*ess of Windsor for brassieresand ladies’ underwear.” Ibid. They did not suggest that thecommon law would already prevent those uses of another’s name as atrademark. On the contrary, they seemed most concerned about thetypes of marks that the common law appeared to allow. Seesupra, at 11.It is thus difficult to say that the namesclause is constitutional solely because of its historicalpedigree.[6] Perhapsrecognizing that reality, the Court relies not only on thepurported common-law tradition restricting the trademarking ofnames, but also points to the names clause’s relation totrademark’s historical purposes. Ante, at 16–18. The latterargument is quite similar to my own—I agree that the names clausehelps to ensure that the proposed mark functions as a sourceidentifier and to guard against reputational consequences, servingtrademark’s historical goals.BBut I cannot agree with the Court that theexistence of a “common-law tradition” and a “historical analogue”is sufficient to resolve this case. Ante, at 19–20. Even ifthe Court’s evidence were rock solid, I still would not adopt thisapproach. To be sure, tradition has a legitimate role to play inconstitutional adjudication. For instance, the longstandingpractice of the political branches can reinforce our understandingof the Constitution’s original meaning. Consumer FinancialProtection Bureau v. Community Financial Services Assn. ofAmerica, Ltd., 601 U.S. 416, 442 (2024) (Kagan, J.,concurring). A course of deliberate practice might liquidateambiguous constitutional provisions. See The Federalist No. 37,p.229 (C. Rossiter ed. 1961). The views of precedinggenerations can persuade, and, in the realm of staredecisis, even bind. But tradition is not an end in itself—and Ifear that the Court uses it that way here.The Court does not (and could not) argue thatthe late-19th and early-20th century names-restriction traditionserves as evidence of the original meaning of the Free SpeechClause. Cf. Samia v. United States, 599 U.S. 635,655–656 (2023) (Barrett, J., concurring in part and concurring injudgment). Nor does it treat the history it recites as a persuasivedata point. Instead, it presents tradition itself as theconstitutional argument; the late-19th and early-20th centuryevidence is dispositive of the First Amendment issue. Yet what isthe theoretical justification for using tradition that way?Relying exclusively on history and tradition mayseem like a way of avoiding judge-made tests. But a rule renderingtradition dispositive is itself a judge-made test. And I donot see a good reason to resolve this case using that approachrather than by adopting a generally applicable principle. (Afterall, there is a tradition of the latter approach too. See,e.g., McCulloch v. Maryland, 4 Wheat. 316, 421(1819) (adopting standard for application of the Necessary andProper Clause).) In the course of applying broadly worded text likethe Free Speech Clause, courts must inevitably articulateprinciples to resolve individual cases. I do not think we can orshould avoid doing so here. As I explained in Part I–B, thetakeaway from history is that content-based trademark restrictionshave long been central to trademark’s purpose of facilitatingsource identification, and they have not posed a serious risk ofcensorship. This principle offers a generally applicable way tothink about whether registration restrictions “‘play wellwith the First Amendment.’” Ante, at 12. We shouldbring clarity to the law by adopting it.In my view, the Court’s laser-like focus on thehistory of this single restriction misses the forest for the trees.It gives secondary billing to what I think is the central point:that the names clause “reflects trademark law’s historicalrationale of identifying the source of goods.” Ante, at 16.I see no reason to proceed based on pedigree rather than principle.Besides, as the Court admits, its approach merely delays theinevitable: Eventually, the Court will encounter a restrictionwithout a historical analogue and be forced to articulate a testfor analyzing it. Ante, at 19–20.*  *  *Trademark protection cannot exist withoutcontent discrimination. So long as content-based registrationrestrictions reasonably relate to the purposes of the trademarksystem, they are constitutional. The names clause clears this bar.I respectfully concur in part.

SUPREME COURT OF THE UNITED STATES_________________No. 22–704_________________KATHERINE K. VIDAL, UNDER SECRETARY OFCOMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, UNITED STATESPATENT AND TRADEMARK OFFICE, PETITIONER v. STEVE ELSTERon writ of certiorari to the united statescourt of appeals for the federal circuit[June 13, 2024]Justice Sotomayor, with whom Justice Kagan andJustice Jackson join, concurring in the judgment.This case involves a free-speech challenge to aviewpoint-neutral, content-based condition on trademarkregistration. In deciding how to evaluate this kind of challenge,the Court faces two options: Either look only to the history andtradition of the condition, or look to trademark law and settledFirst Amendment precedent. The first option, which asks whether thehistory of a particular trademark registration bar plays well withthe First Amendment, leads this Court into uncharted territory thatneither party requests. The other guides it through well-troddenterrain. I would follow the well-trodden path.In assessing the constitutionality of the namesclause and other trademark registration provisions, I would rely onthis Court’s tried-and-tested First Amendment precedent. This Courthas held in a variety of contexts that withholding benefits forcontent-based, viewpoint-neutral reasons does not violate the FreeSpeech Clause when the applied criteria are reasonable and thescheme is necessarily content based. That is the situation here.Content discrimination is an inescapable feature of the trademarksystem, and federal trademark registration only confers additionalbenefits on trademark holders. The denial of trademark registrationis therefore consistent with the First Amendment if it turns on“reasonable, viewpoint-neutral content regulations.” Iancuv. Brunetti, 588 U.S. 388, 424 (2019) (Sotomayor, J.,concurring in part and dissenting in part). Because the namesclause satisfies that test, I would uphold the constitutionality ofthe provision on that ground alone.IAThis case is the latest in a trilogy ofchallenges to the constitutionality of trademark registration barsin the Lanham Act. See id., at 390; Matal v.Tam, 582 U.S. 218, 223 (2017). In the first two cases, theCourt struck down as unconstitutional certain registration barsthat discriminated based on viewpoint. Ante, at 4–5(majority opinion) (citing Brunetti, 588 U.S., at 390,393–394; Tam, 582 U.S., at 243 (plurality opinion);id., at 248–249 (Kennedy, J., concurring in part andconcurring in judgment). Because those cases involvedviewpoint-based provisions, there was no occasion to consider theframework for “how to evaluate viewpoint-neutral restrictions ontrademark registration.” Brunetti, 588 U.S., at 398,n. This case, by contrast, presents that very circ*mstance—aviewpoint-neutral, content-based condition on trademarkregistration.The names clause prohibits registration of amark that “[c]onsists of or comprises a name ...identifying a particular living individual except by his writtenconsent.” 15 U.S.C. §1052(c). No one disputes that thenames clause is content based. Its application turns, after all, onthe mark’s content, i.e., whether it identifies byname a particular living individual without his or her writtenconsent. See City of Austin v. Reagan Nat. Advertising ofAustin, LLC, 596 U.S. 61, 69 (2022) (explaining that aregulation is content based if its application turns on “‘thetopic discussed or the idea or message expressed’”). Thenames clause is also viewpoint neutral because it is agnostic as tohow the name in the mark is being used and does not “distinguis[h]between two opposed sets of ideas.” Brunetti, 588U.S., at 394; see ante, at 5 and n.2 (majorityopinion) (holding that the clause is viewpoint neutral both on itsface and in practice). On these points, and on the conclusion thatthe names clause is constitutional, we all agree. Our disagreementboils down primarily to methodology.BThose familiar with this trilogy of FirstAmendment challenges to the Lanham Act may be surprised, perhapseven disappointed, to learn that, although this case presents the“situation we did not address in Tam or Brunetti,”the Court has shied away from setting forth a “framework ‘fordeciding free speech challenges to provisions of the LanhamAct.’” Ante, at 6 (majority opinion) (quotingTam, 582 U.S., at 245, n.17 (pluralityopinion)). Yet perhaps the biggest surprise (and disappointment) oftoday’s five-Justice majority opinion is its reliance on historyand tradition as a dispositive test to resolve this case.In holding that the names clause isconstitutional, that majority asserts that one need look only tothe “history and tradition” of the clause and “no further.”Ante, at 12. Why look to history and tradition alone?Because, the majority says, it “is sufficient to conclude that thenames clause ... is compatible with the FirstAmendment.” Ibid. Considering this Court has never appliedthis kind of history-and-tradition test to a free-speech challenge,and that “[n]o one briefed, argued, or even hinted at the rule thatthe Court announces today,” one would have expected a moresatisfactory explanation. Lozman v. Riviera Beach,585 U.S. 87, 102 (2018) (Thomas, J., dissenting). There is nonegrounded in our First Amendment doctrine and precedent.Justice Barrett questions the majority’sbecause-it-is-sufficient explanation in part by claiming that, ifanything, the Court’s evidence “does not establish a historicalanalogue for the names clause.” Ante, at 1 (opinionconcurring in part). That may well be true. Yet this back-and-forthhighlights the indeterminacy of the Court’s history-and-traditioninquiry, which one might aptly describe as the equivalent ofentering a crowded co*cktail party and looking over everyone’s headsto find your friends. Cf. Conroy v. Aniskoff,507 U.S.511, 519 (1993) (Scalia, J., concurring in judgment). To makematters worse, the five-Justice majority that undertakes thistradition-as-dispositive inquiry found its friends in a crowdedparty to which it was not invited. That majority has drawnconclusive inferences from its historical evidence, all without anyguidance from the litigants or the court below. That starkdeparture from settled principles of party presentation andadversarial testing in favor of in-chambers historical research bynonhistorians raises more questions than answers. Cf.Maslenjak v. United States, 582 U.S. 335, 354 (2017)(Gorsuch, J., joined by Thomas, J., concurring in part andconcurring in judgment) (“[T]he crucible of adversarial testing onwhich we usually depend, along with the experience of ourthoughtful colleagues on the district and circuit benches, couldyield insights (or reveal pitfalls) we cannot muster guided only byour own lights”).It is not appropriate, much less necessary, tofind common-law analogues to settle the constitutionality of thenames clause or any other trademark registration provision. I agreewith Justice Barrett that, even if the majority’s historical“evidence were rock solid,” there is no good reason to believe that“hunting for historical forebears on a restriction-by-restrictionbasis is the right way to analyze the constitutional question.”Ante, at 1, 13. The majority attempts to reassure litigantsand the lower courts that a “history-focused approac[h]” here issensible and workable, by citing to New York State Rifle &Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022).Ante, at 19, n.4. To say that such reassurance is notcomforting would be an understatement. One need only read a handfulof lower court decisions applying Bruen to appreciate theconfusion this Court has caused. Cf. Brief for Second Amendment LawScholars as Amici Curiae in United States v.Rahimi, O. T. 2023, No. 22–915, pp. 4–6 (discussing examplesof confusion among lower courts applying Bruen).Ultimately, I am reluctant to go further downthis precipice of looking for questionable historical analogues toresolve the constitutionality of Congress’s legislation. To borrowJustice Scalia’s criticism from a different context, such hunting“far into the dimmy past” is not just “a waste of research time andink” but also “a false and disruptive lesson in the law... that ... condemns litigants (who,unlike us, must pay for it out of their own pockets) to subsidizinghistorical research by lawyers.” Conroy, 507 U.S., at519 (opinion concurring in judgment). I would instead apply thisCourt’s First Amendment precedent, just as the parties did inarguing this case.CThe most straightforward way to resolve thisand other free-speech challenges to trademark registration criteriais through a doctrinal framework drawn from this Court’s FirstAmendment precedent. The analysis should proceed in two steps.First ask whether the challenged provision targets particular viewstaken by speakers on a given subject. If the trademark registrationbar is viewpoint based, it is presumptively unconstitutional andheightened scrutiny applies; if it is viewpoint neutral, however,the trademark registration bar need only be reasonable in light ofthe purpose of the trademark system. Specifically, the trademarkregistration bar must reasonably serve its purpose of identifyingand distinguishing goods for the public. If the challengedprovision is both viewpoint neutral and reasonable, then it doesnot violate the Free Speech Clause.IIAThis Court has applied strict constitutionalscrutiny to viewpoint-neutral content classifications on someoccasions, and thus treated them as “presumptivelyunconstitutional.” Reed v. Town of Gilbert, 576 U.S.155, 163 (2015). It has declined to do so, however, when any“risk” that such classification “will impermissibly interfere withthe marketplace of ideas” is “attenuated”; that is, when“‘there is no realistic possibility that official suppressionof ideas is afoot.’” Davenport v. Washington Ed.Assn., 551 U.S.177, 188–189 (2007) (quoting R.A.V. v.St. Paul, 505 U.S.377, 390 (1992)). In those cases, “the difference betweenviewpoint-based and viewpoint-neutral content discrimination can bedecisive.” Brunetti, 588 U.S., at 421 (opinion ofSotomayor, J.). This is such a case: Whereas the denial oftrademark registration under viewpoint- and content-based criteriais presumptively unconstitutional under heightened scrutiny, adenial under viewpoint-neutral, content-based criteria is notconstitutionally suspect and does not trigger the same exactingscrutiny. See ante, at 3–12 (majority opinion).In explaining why the difference is decisive inthis context, the Court and Justice Barrett emphasize thattrademarks are inherently content based, yet have long coexistedwith the First Amendment. Ante, at 6–11 (majority opinion);ante, at 2–7 (opinion of Barrett, J.). I agree with the useof historical evidence to support this point. History informs theunderstanding that content-based distinctions are an intrinsicfeature of trademarks, and that the marks’ purpose is to identifyand distinguish goods for the public. See ante, at 2–6(opinion of Barrett, J.). That use of history is legitimate and infact valuable, just as evidence of a longstanding practice ofgovernment can inform the meaning of constitutional provisions inappropriate cases. See ante, at 13–15 (opinion ofBarrett,J.); cf. Consumer Financial Protection Bureauv. Community Financial Services Assn. of America, Ltd., 601U.S. 416, 442 (2024) (Kagan, J., concurring); The Pocket VetoCase, 279 U.S.655, 689 (1929). That is not how the five-Justice majority isusing history, however. The majority instead treats a disputed (andisolated) account of the history and tradition of the names clauseas determinative of its constitutionality. Cf. ante, at12–20 (applying new history-and-tradition test). It is that“judge-made test” that is unmoored from constitutional text andprecedent, and which I repudiate as unhelpful. Ante, at 14(opinion of Barrett, J.).Even then, history does not give us the fullstory. The assertion that content-based distinctions in trademarklaw have long played well with the First Amendment, although true,requires a more fulsome explanation, particularly as applied to thetrademark registration system. The primary reason whyviewpoint-neutral trademark registration criteria easily coexistwith the Free Speech Clause is that they do not burden expression.Instead, a denial of registration withholds ancillary benefits thatmight bolster someone’s expression. When a government confers abenefit that supports some forms of expressive activity, thedecision to withhold that benefit on viewpoint-neutral grounds“‘cannot be equated with the imposition of a “penalty” onthat activity,’” which would trigger heightened scrutiny.Rust v. Sullivan, 500 U.S.173, 193 (1991) (quoting Harris v. McRae,448 U.S.297, 317, n.19 (1980)).1“The First Amendment protects the freedom ofspeech; it does not require the Government to give aid and comfortto those using” particular “modes of expression.” Brunetti,588 U.S., at 401 (Roberts, C.J., concurring in part anddissenting in part). Indeed, this Court has recognized repeatedlythat the First Amendment permits governmental bodies to rely onreasonable, viewpoint-neutral, content-based criteria when decidingto benefit certain communicative activities. See, e.g.,National Endowment for Arts v. Finley, 524 U.S.569, 587–588 (1998) (“[T]he Government may allocate competitivefunding according to criteria that would be impermissible weredirect regulation of speech or a criminal penalty at stake”).As I explained in Brunetti, and theSolicitor General argues in this case, various strands of precedentsupport this point, ranging from cases about limited public (ornonpublic) forums to those involving monetary subsidies and noncashgovernmental programs (such as the collection of fees bypublic-sector labor unions). See 588 U.S., at 422–424(collecting cases); Brief for Petitioner 16–21 (same).[1] In these cases, contentdiscrimination was necessarily a part of the governmentalinitiative at issue, yet the initiative was not subject to theconstitutional straitjacket of heightened scrutiny. See,e.g., Perry Ed. Assn. v. Perry LocalEducators’ Assn., 460 U.S.37, 49 (1983) (noting that content discrimination is“[i]mplicit in the concept of the nonpublic forum,” yet decliningto apply heightened scrutiny). That was so because each “initiative... supported some forms of expression withoutrestricting others. Some speakers were better off, but no speakerswere worse off.” Brunetti, 588 U.S., at 423 (opinionof Sotomayor, J.).These cases “may not be controlling [here] in astrict sense, yet they do provide some instruction.” LegalServices Corporation v. Velazquez, 531 U.S.533, 544 (2001). They generally stand for the proposition thatthe Free Speech Clause permits governmental bodies to impose a“reasonable, viewpoint-neutral limitation” on a “state-bestowedentitlement.” Davenport, 551 U.S., at 189; see,e.g., Christian Legal Soc. Chapter of Univ. ofCal., Hastings College of Law v. Martinez, 561 U.S.661, 669 (2010) (upholding “reasonable, viewpoint-neutralcondition” on access to government initiative); Ysursa v.Pocatello Ed. Assn., 555 U.S.353, 355 (2009) (same); Cornelius v. NAACP LegalDefense & Ed. Fund, Inc., 473 U.S.788, 808 (1985) (same); Regan v. Taxation WithRepresentation of Wash., 461 U.S.540, 550 (1983) (same).[2]2Someone with a federally registered markenjoys certain benefits by virtue of that registration. Even so,free speech is not abridged when these benefits are denied tosomeone based on reasonable, viewpoint-neutral criteria.Consider three basic tenets of trademark law,each of which the Court rightly acknowledges. See ante, at1–2. First, “every trademark’s ‘primary’ function” is to tell thepublic who is responsible for a particular product, that is, toserve as a source identifier. Jack Daniel’s Properties, Inc.v. VIP Products LLC, 599 U.S. 140, 146 (2023). Althoughtrademarks may also communicate a “message,” that message is onlyincidental to “what a trademark is and does.” Id., at145–146. Second, “federal law does not create trademarks.”B&B Hardware, Inc. v. Hargis Industries,Inc., 575 U.S.138, 142 (2015). Rather, by virtue of common law, the firstperson to use a “distinct mark in commerce ... acquiresrights to that mark,” including exclusivity rights to “preven[t]others from using the mark.” Ibid. Third, federalregistration provides increased trademark protection only byconferring additional benefits on trademark holders. Seeibid. For example, it (1) provides “nationwide constructivenotice of the registrant’s claim of ownership of the mark,” whichforecloses some defenses in infringement actions; and (2)constitutes “prima facie evidence” of the mark’s validity andexclusivity in commerce. Ante, at 2 (citing 15U.S.C. §§1072, 1115(a)). To be sure, nothing in theConstitution requires these predominantly commercial benefits.One conclusion follows from these threeprinciples: By prohibiting trademark registration forviewpoint-neutral, content-based reasons, Congress simply denies anapplicant the opportunity to include his mark on a list and secure“certain benefits” that are “useful in infringement litigation.”Jack Daniel’s, 599 U.S., at 146. The risk of speechsuppression is therefore “attenuated” because denying a trademarkholder these ancillary benefits does not prevent him from using hismark in commerce or communicating any message incidental to themark. Davenport, 551 U.S., at 188; seeBrunetti, 588 U.S., at 421–422 (opinion of Sotomayor,J.); id., at 401 (opinion of Roberts, C.J.) (“Whether... marks can be registered does not affect the extentto which their owners may use them in commerce to identify goods.No speech is being restricted; no one is being punished. The ownersof such marks are merely denied certain additional benefitsassociated with federal trademark registration”).BNow consider the facts of this case.Respondent Steve Elster wants to sell shirts with the phrase TRUMPTOO SMALL on them. He also wants increased trademark protection byfederally registering the phrase. In the registration request,Elster explained that the phrase “invokes a memorable exchangebetween President Trump and Senator Marco Rubio from a 2016presidential primary debate, and aims to ‘convey[] that somefeatures of President Trump and his policies arediminutive.’” Inre Elster, 26 F.4th 1328,1330 (CA Fed. 2022) (alteration in original).When the U.S. Patent and Trademark Officerejected the registration request, it denied Elster the opportunityto secure the Government-bestowed benefits associated withregistration. Critically, the denial did not prevent Elster fromcommunicating his message. It also did not restrict his preferredmode of expression. Elster can still sell shirts displaying thesame message. Elster could also use a different phrase (such asELSTER APPAREL) as a source identifier to obtain the desiredbenefits of registration while continuing to sell shirts with hispreferred message across the front. See Tr. of Oral Arg. 23–24(discussing “Elster Apparel” example). Put simply, the denial onlybarred Elster from registering a mark asserting exclusive rights inanother person’s name without their written consent.IIIABecause trademark registration criteria limitstatutory benefits in a necessarily content-based scheme, the FirstAmendment requires the criteria to be viewpoint neutral andreasonable. Supra, at 5–9; Brunetti, 588 U.S.,at 424 (opinion of Sotomayor, J.). From this Court’s analogousnonpublic-forum and limited-public-forum cases, it is clear that“reasonable” means that the challenged provision must reasonablyserve the purpose of the content-based scheme. On this point, Iagree with Justice Barrett that the challenged trademarkregistration criteria must be “reasonable in light of the trademarksystem’s purpose of facilitating source identification.”Ante, at 2; see ante, at 7–9.In Cornelius, for example, the Courtconfronted a free-speech challenge to the Government’s decision toexclude “legal defense and political advocacy organizations fromparticipation in the Combined Federal Campaign (CFC or Campaign), acharity drive aimed at federal employees.” 473 U.S., at 790.After concluding that the CFC was a nonpublic forum “not dedicatedto general debate or the free exchange of ideas,” the Court heldthat the First Amendment permits content- and speaker-based“distinctions” so long as they are “reasonable in light of thepurpose served by the forum and are viewpoint neutral.” Id.,at 806, 811. Importantly, the “decision to restrict access... need not be the most reasonable or the onlyreasonable limitation.” Id., at 808–809. Based on this test,the Court ultimately concluded that the Government actedreasonably, and consistent with the Free Speech Clause, in“limit[ing] participation in the CFC in order to minimizedisruption to the federal workplace, to ensure the success of thefundraising effort, or to avoid the appearance of politicalfavoritism without regard to the viewpoint of the excluded groups.”Id., at 813.Justice Thomas (joined by two Justices) rejectsthis test, implying that it is subjective because it supposedlyturns on what a given judge might think is reasonable. Ante,at 20. That statement misunderstands the inquiry. As justdiscussed, a trademark registration condition is reasonable if itserves as a source identifier, a concept that is familiar to anyonewho has worked on a trademark case. See Jack Daniel’s, 599U.S., at 146; 1 J. McCarthy, Trademarks and UnfairCompetition §3:1 (5th ed. 2023). More generally, this kind ofreasonableness inquiry appears in every limited public (ornonpublic) forum case. Far from being subjective and unworkable,this kind of test goes to the very core of what judges and lawyersdo every day. When contrasted to their preferred history-drivenapproach, the criticism of the reasonableness inquiry is even moreunpersuasive. As discussed above, the history-and-traditionapproach is not just flawed as a matter of first principles, butalso highly indeterminate and unfamiliar to judges and litigants inthis area of the law. See supra, at 3–5. How much history isenough to clear the historical analogue bar the five-Justicemajority set up? What does that look like in this context? When itcomes to subjectivity, their preferred approach empowers judges topick their friends in a crowded party. See supra, at 4. Whenfaced with the two options, I choose the test that is rooted inthis Court’s First Amendment doctrine and precedent, is attuned towhat judges and lawyers are properly trained to do, and does notlimit Congress from dealing with modern-day conditions based on theforesight of yesterday’s generation.B“Content-based criteria for trademarkregistration do not abridge the right to free speech so long asthey reasonably relate to the preservation of the markowner’sgoodwill and the prevention of consumer confusion,” “goals” that a“particular restriction will serve ... if it helpsensure that registered marks actually function as sourceidentifiers.” Ante, at 8 (opinion of Barrett, J.) The namesclause easily passes this reasonableness test. Sourceidentification is, after all, at the heart of what the names clausedoes.Imagine someone who wants to manufacture andsell the best bats and catchers’ mitts in baseball. Unsurprisingly,that person wants to use the names of Derek Jeter and Jorge Posadato capitalize on their goodwill to promote the products. So, themanufacturer lands on JETER OUT OF THE PARK and CATCH LIKE POSADAas marks. The names clause bars registration of these phraseswithout the named individuals’ written consent. It does so for goodreason: Jeter and Posada may not want consumers to misattributethese products to them, just as consumers may not want to buyproducts under the false pretense that these goods somehow areconnected to the players.[3]Source identification is especially important when, for example,the named individual produces similar products—say, Jeter andPosada sell their own baseball goods under the marks MR. NOVEMBERBATS BY JETER and CHAMP’S MITTS BY POSADA. They would not wantmanufacturers to dilute the commercial value of their name andreputation. Nor would Jeter and Posada want a Boston Red Sox fan tomanufacture cheaper goods and use their names to promotesecond-rate products. The names clause prevents that fromhappening.Congress was entitled to make this legislativejudgment. The Government, after all, “has a reasonable interest inrefraining from lending its ancillary support to marks” that use anunconsenting individual’s name for commercial gain.Brunetti, 588 U.S., at 425 (opinion of Sotomayor, J.);cf. id., at 401 (opinion of Roberts, C.J.) (“TheGovernment, meanwhile, has an interest in not associating itselfwith trademarks whose content is obscene, vulgar, or profane”). Insum, the names clause is constitutional because it is aviewpoint-neutral, reasonable limitation on a trademark’sregistration.*  *  *The Court’s “decision today is narrow,” andits history-and-tradition test is good only for “the relativelysimple case before us today.” Ante, at 20, 22. Ultimately,all nine Justices agree that Congress can innovate when it comes totrademark law, and we further agree that nothing in today’s opinioncalls into question the constitutionality of viewpoint-neutralprovisions lacking a historical pedigree. See ibid.;ante, at 1 (Kavanaugh, J., concurring in part); ante,at 1–2 (opinion of Barrett, J.); supra, at 3–6.For the reasons set forth above, I respectfullyconcur in the judgment.