Free Speech

Facially Viewpoint-Based Statutes Are Unconstitutional Even if They Aren't "Substantially" Overbroad

So the majority held in today's decision about the exclusion of "immoral or scandalous" marks from trademark registration (the FUCT case).


When a statute is challenged as violating the First Amendment on its face (as opposed to just as it was applied to this particular challenger), the Court often asks whether the law is "substantially" overbroad:

In the First Amendment context, … a law may be invalidated as overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep."

If the law is unconstitutional only as to a relatively modest set of applications, then it's not substantially overbroad, and won't be struck down on its face (though people can still challenge it in those particular applications).

But in today's Iancu v. Brunetti (the case involving the FUCT trademark, and the Lanham Act's provision that "immoral or scandalous" trademarks can't be registered), the Court held that this doesn't apply to viewpoint-based restrictions:

[T]he Government … [argues that the statute may constitutionally be applied] to lewd, sexually explicit, or profane marks … [and] invokes our First Amendment overbreadth doctrine, [asking] us to uphold the statute against facial attack because its unconstitutional applications are not "substantial" relative to "the statute's plainly legitimate sweep."

But … this Court has never applied that kind of analysis to a viewpoint-discriminatory law. In Tam, for example, we did not pause to consider whether the disparagement clause might admit some permissible applications (say, to certain libelous speech) before striking it down. The Court's finding of viewpoint bias ended the matter. And similarly, it seems unlikely we would compare permissible and impermissible applications if Congress outright banned "offensive" (or to use some other examples, "divisive" or "subversive") speech. Once we have found that a law "aim[s] at the suppression of" views, why would it matter that Congress could have captured some of the same speech through a viewpoint-neutral statute?

An important holding that could apply to many First Amendment cases that are far removed from Brunetti.

NEXT: Congress May Not Bar Registration of "Immoral or Scandalous" Trademarks -- But "Vulgar or Profane" Marks, Maybe

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  1. Ears perked [figuratively] at the deliberate use of “divisive”.

    1. Just as long as we’re clear that nothing about this ruling applies to criminal “parody” or any other form of “speech” that impinges on the reputational interests of certain distinguished academics here at NYU or at other institutions of higher learning. See the documentation of our nation’s leading criminal “satire” case at:

  2. If the headline is literally true, does it mean that statutes that create bodies such as the EPA (which includes a requirement that appointed commissioners agree with the goals in the agency’s charter) must be overturned, making all the agency’s regulations fall with them? I would love it if this were true.

    1. The headline, like most headlines, can’t capture the whole story. In some situations, viewpoint-based statutes are allowed; in particular, requiring high-level government officials to share the appointing official’s ideology (or some ideology set forth in a statute) is usually constitutional, see, e.g., Branti v. Finkel. More generally, the rules for the government as employer aren’t quite the same as those for the government acting in other capacities.

  3. Professor Volokh,
    Would you agree that Iancu and Manhattan Cmty Access (plus last year’s NIFLA decision on compelled speech) serve as the death knell of Social Media regulation that that proposed by Senator Holly? I read MCA as holding “platforms” retain their First Amendment rights, just like “publishers.” Thus, a company taking advantage of the protections of 230 will retain their First Amendment rights. And Iancu then re-emphasizes that any viewpoint-based regulation will almost certainly fail. Finally, NIFLA re-affirms the broad protection for compelled speech.
    Senator Holly’s proposal to forbid social media platforms relying on 230 from censoring based on ideology would fail because (1) that social media platform retains its 1A rights (MCA); (2) the restriction on censorship is a form of compelled speech, which is a form of censorship (NIFLA); (3) restrictions based on ideology are by definition “viewpoint” (Iancu).

    1. or Senator Hawley

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