The Trademark Principal Register as a Nonpublic Forum

De gustibus non est disputandum. There is no accounting for taste. At least when it comes to matters of expression, that is the rule engraved by the First Amendment on the American constitutional tradition. For the public debate to be robust and uninhibited, speech should be allowed to flow freely, on matters large and small, in words wise or foolish, beautiful or distasteful. But the First Amendment, of course, is not absolute; and a number of limitations on freedom of expression have been devised to mediate a balance between individual liberty and societal interest in orderly coexistence and government administration. Section 2(a) of the Lanham Act prohibits registration of “scandalous,” “immoral,” and “disparaging” trademarks on the Principal Register. Federal registration carries a number of benefits not available to unregistered trademarks. Trademarks are commercial speech; and as a content-based restraint on speech, § 2(a) implicates the First Amendment. Courts that have had an opportunity to address challenges to the constitutionality of § 2(a) have dismissed them without adequate analysis.