Matal v. Tam — 582 U.S. 218

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MATAL, INTERIM DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE v. TAM

certiorari to the united states court of appeals for the federal circuit

No. 15–1293. Argued January 18, 2017—Decided June 19, 2017

Simon Tam, lead singer of the rock group “The Slants,” chose this moniker in order to “reclaim” the term and drain its denigrating force as a derog- atory term for Asian persons. Tam sought federal registration of the mark “THE SLANTS.” The Patent and Trademark Offce (PTO) de- nied the application under a Lanham Act provision prohibiting the reg- istration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. § 1052(a). Tam contested the denial of registration through the admin- istrative appeals process, to no avail. He then took the case to federal court, where the en banc Federal Circuit ultimately found the disparage- ment clause facially unconstitutional under the First Amendment's Free Speech Clause.

Held: The judgment is affrmed.

808 F. 3d 1321, affrmed.

Justice Alito delivered the opinion of the Court with respect to

Parts I, II, and III–A, concluding:

1. The disparagement clause applies to marks that disparage the members of a racial or ethnic group. Tam's view, that the clause applies only to natural or juristic persons, is refuted by the plain terms of the clause, which uses the word “persons.” A mark that disparages a “sub- stantial” percentage of the members of a racial or ethnic group necessar- ily disparages many “persons,” namely, members of that group. Tam's narrow reading also clashes with the breadth of the disparagement clause, which by its terms applies not just to “persons,” but also to “institutions” and “beliefs.” § 1052(a). Had Congress wanted to con- fne the reach of the clause, it could have used the phrase “particular living individual,” which it used in neighboring § 1052(c). Tam contends that his interpretation is supported by legislative history and by the PTO's practice for many years of registering marks that plainly deni- grated certain groups. But an inquiry into the meaning of the statute's text ceases when, as here, “the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (internal quotation marks omitted). Even if resort to legislative history and early enforcement practice were ap- propriate, Tam has presented nothing showing a congressional intent to

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adopt his interpretation, and the PTO's practice in the years following the disparagement clause's enactment is unenlightening. Pp. 230–233. 2. The disparagement clause violates the First Amendment's Free Speech Clause. Contrary to the Government's contention, trademarks are private, not government, speech. Because the “Free Speech Clause . . . does not regulate government speech,” Pleasant Grove City v. Sum- mum, 555 U. S. 460, 467, the government is not required to maintain viewpoint neutrality on its own speech. This Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affxing a government seal of approval, government could silence or muffe the expression of disfavored viewpoints.

The Federal Government does not dream up the trademarks regis- tered by the PTO. Except as required by § 1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. If the mark meets the Lanham Act's viewpoint-neutral requirements, registration is mandatory. And once a mark is registered, the PTO is not authorized to remove it from the register unless a party moves for cancellation, the registration expires, or the Federal Trade Commission initiates proceedings based on certain grounds. It is thus far-fetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodi- giously and incoherently. And none of this Court's government-speech cases supports the idea that registered trademarks are government speech. Johanns v. Livestock Marketing Assn., 544 U. S. 550; Pleasant Grove City v. Summum, supra; and Walker v. Texas Div., Sons of Con- federate Veterans, Inc., 576 U. S. 200, distinguished. Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government- speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way. Pp. 233–239. Justice Alito, joined by The Chief Justice, Justice Thomas, and

Justice Breyer, concluded in Parts III–B, III–C, and IV:

(a) The Government's argument that this case is governed by the Court's subsidized-speech cases is unpersuasive. Those cases all in- volved cash subsidies or their equivalent, e. g., funds to private parties for family planning services in Rust v. Sullivan, 500 U. S. 173, and cash grants to artists in National Endowment for Arts v. Finley, 524 U. S. 569. The federal registration of a trademark is nothing like these pro- grams. The PTO does not pay money to parties seeking registration of a mark; it requires the payment of fees to fle an application and to maintain the registration once it is granted. The Government responds that registration provides valuable non-monetary benefts traceable to

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the Government's resources devoted to registering the marks, but nearly every government service requires the expenditure of govern- ment funds. This is true of services that beneft everyone, like police and fre protection, as well as services that are utilized by only some, e. g., the adjudication of private lawsuits and the use of public parks and highways. Pp. 239–241.

(b) Also unpersuasive is the Government's claim that the disparage- ment clause is constitutional under a “government-program” doctrine, an argument which is based on a merger of this Court's government- speech cases and subsidy cases. It points to two cases involving a pub- lic employer's collection of union dues from its employees, Davenport v. Washington Ed. Assn., 551 U. S. 177, and Ysursa v. Pocatello Ed. Assn., 555 U. S. 353, but these cases occupy a special area of First Amendment case law that is far removed from the registration of trademarks. Cases in which government creates a limited public forum for private speech, thus allowing for some content- and speaker-based restrictions, see, e. g., Good News Club v. Milford Central School, 533 U. S. 98, 106– 107; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 831, are potentially more analogous. But even in those cases, viewpoint discrimination is forbidden. The disparagement clause denies registra- tion to any mark that is offensive to a substantial percentage of the members of any group. That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint. The “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592. Pp. 241–244.

(c) The dispute between the parties over whether trademarks are commercial speech subject to the relaxed scrutiny outlined in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, need not be resolved here because the disparagement clause cannot withstand even Central Hudson review. Under Central Hudson, a re- striction of speech must serve “a substantial interest” and be “narrowly drawn.” Id., at 564–565 (internal quotation marks omitted). One pur- ported interest is in preventing speech expressing ideas that offend, but that idea strikes at the heart of the First Amendment. The second interest asserted is protecting the orderly fow of commerce from dis- ruption caused by trademarks that support invidious discrimination; but the clause, which reaches any trademark that disparages any person, group, or institution, is not narrowly drawn. Pp. 244–247.

Justice Kennedy, joined by Justice Ginsburg, Justice Soto- mayor, and Justice Kagan, agreed that 15 U. S. C. § 1052(a) constitutes viewpoint discrimination, concluding:

(a) With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech

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based on disapproval of the ideas or perspectives the speech conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828–829. The test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed. Here, the dispar- agement clause identifes the relevant subject as “persons, living or dead, institutions, beliefs, or national symbols,” § 1052(a); and within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus refects the Government's disap- proval of a subset of messages it fnds offensive, the essence of view- point discrimination. The Government's arguments in defense of the statute are unpersuasive. Pp. 248–251.

(b) Regardless of whether trademarks are commercial speech, the viewpoint based discrimination here necessarily invokes heightened scrutiny. See Sorrell v. IMS Health Inc., 564 U. S. 552, 566. To the extent trademarks qualify as commercial speech, they are an example of why that category does not serve as a blanket exemption from the First Amendment's requirement of viewpoint neutrality. In the realm of trademarks, the metaphorical marketplace of ideas becomes a tangi- ble, powerful reality. To permit viewpoint discrimination in this con- text is to permit Government censorship. Pp. 251–253.

Alito, J., announced the judgment of the Court and delivered the opin- ion of the Court with respect to Parts I, II, and III–A, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined, and in which Thomas, J., joined except for Part II, and an opinion with respect to Parts III–B, III–C, and IV, in which Roberts, C. J., and Thomas and Breyer, JJ., joined. Kennedy, J., fled an opinion concur- ring in part and concurring in the judgment, in which Ginsburg, Soto- mayor, and Kagan, JJ., joined, post, p. 247. Thomas, J., fled an opinion concurring in part and concurring in the judgment, post, p. 254. Gor- such, J., took no part in the consideration or decision of the case.

Deputy Solicitor General Stewart argued the cause for petitioner. With him on the briefs were Acting Solicitor General Gershengorn, Principal Deputy Assistant Attorney General Mizer, Nicole A. Saharsky, Douglas N. Letter, Mark R. Freeman, Daniel Tenny, Joshua M. Salzman, Sarah Harris, Nathan K. Kelley, Thomas W. Krause, Chris- tina J. Hieber, Thomas L. Casagrande, Molly R. Silfen, and Mary Beth Walker.

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Counsel

John C. Connell argued the cause for respondent. With him on the brief were Ronald D. Coleman, Joel G. MacMull, Stuart Banner, and Eugene Volokh.*

*Briefs of amici curiae urging reversal were fled for the Fred T. Kore- matsu Center for Law and Equity et al. by William C. Rava, Elvira Cas- tillo, and David A. Perez; for Law Professors by Christine Haight Farley and Rebecca Tushet, both pro se; for Native American Organizations by Charles A. Rothfeld, Andrew J. Pincus, Paul W. Hughes, Michael B. Kimberly, Richard A. Guest, and Larry S. Gondelman; and for Amanda Blackhorse et al. by Jesse A. Witten.

Briefs of amici curiae urging affrmance were fled for the Alliance De- fending Freedom by Kristen Waggoner, Kevin H. Theriot, David A. Cort- man, and Rory T. Gray; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, and Walter M. Weber; for the American Civil Liberties Union et al. by Lee Rowland, Esha Bhandari, Arthur B. Spitzer, Scott Michelman, and David Cole; for the American Jewish Committee by Kannon K. Shanmugam and Allison Jones Rushing; for the Becket Fund for Religious Liberty by Mark L. Rienzi and Adele Auxier Keim; for the Cato Institute et al. by Ilya Sha- piro; for the Chamber of Commerce of the United States of America by Eugene Scalia, Amir C. Tayrani, Michael R. Huston, Lily Fu Claffee, Kate Comerford Todd, and Warren Postman; for Constitutional Law Pro- fessors by Floyd Abrams and Rodney A. Smolla, both pro se; for the First Amendment Lawyers Association by Marc J. Randazza; for the Interna- tional Trademark Association by Anthony J. Dreyer, Andrew L. Green, Lawrence K. Nodine, and Robert D. Carroll; for the Justice and Freedom Fund by James L. Hirsen and Deborah J. Dewart; for the Pacifc Legal Foundation by Joshua P. Thompson; for Pro-Football, Inc., by Lisa S. Blatt, Robert A. Garrett, Robert L. Raskopf, Todd Anten, and Jessica A. Rose; for The Rutherford Institute et al. by Megan L. Brown, Joshua S. Turner, Christopher J. Kelly, Dwayne D. Sam, and John W. Whitehead; for San Franciso Dykes on Bikes Women's Motorcycle Contingent, Inc., by Mark A. Lemley, Michael A. Feldman, Brooke Oliver, and Tobias Bar- rington Wolff; for the Thomas Jefferson Center for the Protection of Free Expression et al. by J. Joshua Wheeler, Clayton N. Hansen, David Greene, and Daniel Nazer; for Erik Brunetti by John R. Sommer; for Gregory Dolin et al. by Matthew J. Dowd; for Hugh C. Hansen by Mr. Han- sen, pro se; and for Edward Lee et al. by Mr. Lee, pro se.

Briefs of amici curiae were fled for the American Bar Association by Linda A. Klein and Thomas H. Davis, Jr.; for the American Intellectual Property Law Association by Paul M. Smith and Mark L. Whitaker; for

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Justice Alito announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–A, and an opinion with respect to Parts III–B, III–C, and IV, in which The Chief Justice, Justice Thomas, and Justice Breyer join.

This case concerns a dance-rock band's application for fed- eral trademark registration of the band's name, “The Slants.” “Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force.

The Patent and Trademark Offce (PTO) denied the appli- cation based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. § 1052(a). We now hold that this provi- sion violates the Free Speech Clause of the First Amend- ment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

“The principle underlying trademark protection is that distinctive marks—words, names, symbols, and the like—can help distinguish a particular artisan's goods from those of others.” B&B Hardware, Inc. v. Hargis Industries, Inc.,

Asian Americans Advancing Justice | AAJC et al. by Daniel J. Kornstein and Cecelia Chang; for Certain Members of Congress by John Dragseth and John T. Johnson; for the New York Intellectual Property Law Associ- ation by Dyan Finguerra-DuCharme, Walter E. Hanley, Jr., Charles R. Macedo, David P. Goldberg, Pina M. Campagna, Kathleen E. McCarthy, Robert J. Rando, Stephen J. Smirti, Jr., William Thomashower, and Rob- ert M. Isackson; for Public Citizen, Inc., by Scott L. Nelson, Allison M. Zieve, and Julie A. Murray; and for Public Knowledge by Phillip R. Ma- lone and Charles Duan.

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575 U. S. 138, 142 (2015); see also Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U. S. 205, 212 (2000). A trade- mark “designate[s] the goods as the product of a particular trader” and “protect[s] his good will against the sale of an- other's product as his.” United Drug Co. v. Theodore Recta- nus Co., 248 U. S. 90, 97 (1918); see also Hanover Star Mill- ing Co. v. Metcalf, 240 U. S. 403, 412–413 (1916). It helps consumers identify goods and services that they wish to pur- chase, as well as those they want to avoid. See Wal-Mart Stores, supra, at 212–213; Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 198 (1985).

“[F]ederal law does not create trademarks.” B&B Hard- ware, supra, at 142. Trademarks and their precursors have ancient origins, and trademarks were protected at common law and in equity at the time of the founding of our country. 3 J. McCarthy, Trademarks and Unfair Competition § 19:8 (4th ed. 2017) (hereinafter McCarthy); 1 id., §§ 5:1, 5:2, 5:3; Pattishall, The Constitutional Foundations of American Trademark Law, 78 Trademark Rep. 456, 457–458 (1988); Pattishall, Two Hundred Years of American Trademark Law, 68 Trademark Rep. 121, 121–123 (1978); see Trade-Mark Cases, 100 U. S. 82, 92 (1879). For most of the 19th century, trademark protection was the province of the States. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763, 780– 782 (1992) (Stevens, J., concurring in judgment); id., at 785 (Thomas, J., concurring in judgment). Eventually, Con- gress stepped in to provide a degree of national uniformity, passing the frst federal legislation protecting trademarks in 1870. See Act of July 8, 1870, §§ 77–84, 16 Stat. 210–212. The foundation of current federal trademark law is the Lan- ham Act, enacted in 1946. See Act of July 5, 1946, ch. 540, 60 Stat. 427. By that time, trademark had expanded far be- yond phrases that do no more than identify a good or service. Then, as now, trademarks often consisted of catchy phrases that convey a message.

Under the Lanham Act, trademarks that are “used in com- merce” may be placed on the “principal register,” that is,

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they may be federally registered. 15 U. S. C. § 1051(a)(1). And some marks “capable of distinguishing [an] applicant's goods or services and not reg istrable on the principal register . . . which are in lawful use in commerce by the owner thereof ” may instead be placed on a different federal register: the supplemental register. § 1091(a). There are now more than 2 million marks that have active federal cer- tifcates of registration. PTO Performance and Accountabil- ity Report, Fiscal Year 2016, p. 192 (Table 15), https://www. uspto.gov/sites/default/fles/documents/USPTOFY16PAR.pdf (all Internet materials as last visited June 16, 2017). This system of federal registration helps to ensure that trade- marks are fully protected and supports the free fow of com- merce. “[N]ational protection of trademarks is desirable,” we have explained, “because trademarks foster competition and the maintenance of quality by securing to the producer the benefts of good reputation.” San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 531 (1987) (internal quotation marks omitted); see also Park 'N Fly, Inc., supra, at 198 (“The Lanham Act provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers”).

Without federal registration, a valid trademark may still be used in commerce. See 3 McCarthy § 19:8. And an un- registered trademark can be enforced against would-be in- fringers in several ways. Most important, even if a trade- mark is not federally registered, it may still be enforceable under § 43(a) of the Lanham Act, which creates a federal cause of action for trademark infringement. See Two Pesos, supra, at 768 (“Section 43(a) prohibits a broader range of practices than does § 32, which applies to registered marks, but it is common ground that § 43(a) protects qualifying un- registered trademarks” (internal quotation marks and cita-

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tion omitted)).1 Unregistered trademarks may also be enti- tled to protection under other federal statutes, such as the Anticybersquatting Consumer Protection Act, 15 U. S. C. § 1125(d). See 5 McCarthy § 25A:49, at 25A–198 (“[T]here is no requirement [in the Anticybersquatting Act] that the protected `mark' be registered: unregistered common law marks are protected by the Act”). And an unregistered trademark can be enforced under state common law, or if it has been registered in a State, under that State's registra- tion system. See 3 id., § 19:3, at 19–23 (explaining that “[t]he federal system of registration and protection does not preempt parallel state law protection, either by state com- mon law or state registration,” and “[i]n the vast majority of situations, federal and state trademark law peacefully co- exist”); id., § 22:1 (discussing state trademark registration systems).

Federal registration, however, “confers important legal rights and benefts on trademark owners who register their marks.” B&B Hardware, 575 U. S., at 142 (internal quota- tion marks omitted). Registration on the principal register (1) “serves as `constructive notice of the registrant's claim of ownership' of the mark,” ibid. (quoting 15 U. S. C. § 1072); (2) “is `prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner's own-

1 In the opinion below, the Federal Circuit opined that although “[s]ection 43(a) allows for a federal suit to protect an unregistered trademark,” “it is not at all clear” that respondent could bring suit under § 43(a) because “there is no authority extending § 43(a) to marks denied under § 2(a)'s dis- paragement provision.” In re Tam, 808 F. 3d 1321, 1344–1345, n. 11 (en banc), as corrected (Feb. 11, 2016). When drawing this conclusion, the Federal Circuit relied in part on our statement in Two Pesos that “the general principles qualifying a mark for registration under § 2 of the Lan- ham Act are for the most part applicable in determining whether an unreg- istered mark is entitled to protection under § 43(a).” 505 U. S., at 768. We need not decide today whether respondent could bring suit under § 43(a) if his application for federal registration had been lawfully denied under the disparagement clause.

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ership of the mark, and of the owner's exclusive right to use the registered mark in commerce on or in connection with the goods or services specifed in the certifcate,' ” B&B Hardware, 575 U. S., at 142–143 (quoting § 1057(b)); and (3) can make a mark “ `incontestable' ” “once a mark has been registered for five years, ” id., at 143 (quoting §§ 1065, 1115(b)); see Park 'N Fly, 469 U. S., at 193. Registration also enables the trademark holder “to stop the importation into the United States of articles bearing an infringing mark.” 3 McCarthy § 19:9, at 19–38; see 15 U. S. C. § 1124.

The Lanham Act contains provisions that bar certain trademarks from the principal register. For example, a trademark cannot be registered if it is “merely descriptive or deceptively misdescriptive” of goods, § 1052(e)(1), or if it is so similar to an already registered trademark or trade name that it is “likely . . . to cause confusion, or to cause mistake, or to deceive,” § 1052(d).

At issue in this case is one such provision, which we will call “the disparagement clause.” This provision prohibits the registration of a trademark “which may disparage . . . persons, living or dead, institutions, beliefs, or national sym- bols, or bring them into contempt, or disrepute.” § 1052(a).2 This clause appeared in the original Lanham Act and has remained the same to this day. See § 2(a), 60 Stat. 428.

When deciding whether a trademark is disparaging, an ex- aminer at the PTO generally applies a “two-part test.” The examiner frst considers “the likely meaning of the matter in question, taking into account not only dictionary defnitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in con- nection with the goods or services.” Trademark Manual of

2 The disparagement clause also prevents a trademark from being regis-

tered on the supplemental register. § 1091(a).

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Examining Procedure § 1203.03(b)(i) (Apr. 2017), p. 1200–150, http://tmep.uspto.gov. “If that meaning is found to refer to identifable persons, institutions, beliefs or national sym- bols,” the examiner moves to the second step, asking “whether that meaning may be disparaging to a substantial composite3 of the referenced group.” Ibid. If the examiner fnds that a “substantial composite, although not necessarily a majority, of the referenced group would fnd the proposed mark . . . to be disparaging in the context of contemporary attitudes,” a prima facie case of disparagement is made out, and the burden shifts to the applicant to prove that the trademark is not disparaging. Ibid. What is more, the PTO has specifed that “[t]he fact that an applicant may be a member of that group or has good intentions underlying its use of a term does not obviate the fact that a substantial composite of the referenced group would fnd the term objec- tionable.” Ibid.

Simon Tam is the lead singer of “The Slants.” In re Tam, 808 F. 3d 1321, 1331 (CA Fed. 2015) (en banc), as corrected (Feb. 11, 2016). He chose this moniker in order to “reclaim” and “take ownership” of stereotypes about people of Asian ethnicity. Ibid. (internal quotation marks omitted). The group “draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes” and has given its albums names such as “The Yellow Album” and “Slanted Eyes, Slan- ted Hearts.” Ibid.

Tam sought federal registration of “THE SLANTS” on the principal register, App. 17, but an examining attorney at the PTO rejected the request, applying the PTO's two-part framework and fnding that “there is . . . a substantial com- posite of persons who fnd the term in the applied-for mark offensive.” Id., at 30. The examining attorney relied in part on the fact that “numerous dictionaries defne `slants'

3 By “composite,” we assume the PTO means component.

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or `slant-eyes' as a derogatory or offensive term.” Id., at 29. The examining attorney also relied on a fnding that “the band's name has been found offensive numerous times”—cit- ing a performance that was canceled because of the band's moniker and the fact that “several bloggers and commenters to articles on the band have indicated that they fnd the term and the applied-for mark offensive.” Id., at 29–30.

Tam contested the denial of registration before the exam- ining attorney and before the PTO's Trademark Trial and Appeal Board (TTAB) but to no avail. Eventually, he took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconsti- tutional under the First Amendment's Free Speech Clause. The majority found that the clause engages in viewpoint- based discrimination, that the clause regulates the expres- sive component of trademarks and consequently cannot be treated as commercial speech, and that the clause is subject to and cannot satisfy strict scrutiny. See 808 F. 3d, at 1334– 1339. The majority also rejected the Government's argu- ment that registered trademarks constitute government speech, as well as the Government's contention that federal registration is a form of government subsidy. See id., at 1339–1355. And the majority opined that even if the dispar- agement clause were analyzed under this Court's commercial- speech cases, the clause would fail the “intermediate scru- tiny” that those cases prescribe. See id., at 1355–1357.

Several judges wrote separately, advancing an assortment of theories. Concurring, Judge O'Malley agreed with the majority's reasoning but added that the disparagement clause is unconstitutionally vague. See id., at 1358–1363. Judge Dyk concurred in part and dissented in part. He ar- gued that trademark registration is a government subsidy and that the disparagement clause is facially constitutional, but he found the clause unconstitutional as applied to THE SLANTS because that mark constitutes “core expression” and was not adopted for the purpose of disparaging Asian-

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Americans. See id., at 1363–1374. In dissent, Judge Lourie agreed with Judge Dyk that the clause is facially con- stitutional but concluded for a variety of reasons that it is also constitutional as applied in this case. See id., at 1374– 1376. Judge Reyna also dissented, maintaining that trade- marks are commercial speech and that the disparagement clause survives intermediate scrutiny because it “directly ad- vances the government's substantial interest in the orderly fow of commerce.” See id., at 1376–1382.

The Government fled a petition for certiorari, which we granted in order to decide whether the disparagement clause “is facially invalid under the Free Speech Clause of the First Amendment.” Pet. for Cert. i; see sub nom. Lee v. Tam, 579 U. S. 969 (2016).

Before reaching the question whether the disparagement clause violates the First Amendment, we consider Tam's ar- gument that the clause does not reach marks that disparage racial or ethnic groups. The clause prohibits the registra- tion of marks that disparage “persons,” and Tam claims that the term “persons” “includes only natural and juristic per- sons,” not “non-juristic entities such as racial and ethnic groups.” Brief for Respondent 46.

Tam never raised this argument before the PTO or the Federal Circuit, and we declined to grant certiorari on this question when Tam asked us to do so, see Brief in Response to Pet. for Cert., pp. i, 17–21. Normally, that would be the end of the matter in this Court. See, e. g., Yee v. Escondido, 503 U. S. 519, 534–538 (1992); Freytag v. Commissioner, 501 U. S. 868, 894–895 (1991) (Scalia, J., concurring in part and concurring in judgment).

But as the Government pointed out in connection with its petition for certiorari, accepting Tam's statutory interpreta- tion would resolve this case and leave the First Amendment question for another day. See Reply to Brief in Response 9. “[W]e have often stressed” that it is “importan[t to] avoi[d]

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the premature adjudication of constitutional questions,” Clinton v. Jones, 520 U. S. 681, 690 (1997), and that “we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable,” Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944). See also Ala- bama State Federation of Labor v. McAdory, 325 U. S. 450, 461 (1945); Burton v. United States, 196 U. S. 283, 295 (1905). We thus begin by explaining why Tam's argument about the defnition of “persons” in the Lanham Act is meritless.

As noted, the disparagement clause prohibits the registra- tion of trademarks “which may disparage . . . persons, living or dead.” 15 U. S. C. § 1052(a). Tam points to a defnition of “person” in the Lanham Act, which provides that “[i]n the construction of this chapter, unless the contrary is plainly apparent from the context . . . [t]he term `person' and any other word or term used to designate the applicant or other entitled to a beneft or privilege or rendered liable under the provisions of this chapter includes a juristic person as well as a natural person.” § 1127. Because racial and ethnic groups are neither natural nor “juristic” persons, Tam as- serts, these groups fall outside this defnition. Brief for Re- spondent 46–48.

Tam's argument is refuted by the plain terms of the dispar- agement clause. The clause applies to marks that disparage “persons.” A mark that disparages a “substantial” percent- age of the members of a racial or ethnic group, Trademark Manual § 1203.03(b)(i), at 1200–150, necessarily disparages many “persons,” namely, members of that group. Tam's ar- gument would fail even if the clause used the singular term “person,” but Congress' use of the plural “persons” makes the point doubly clear.4

4 Tam advances a convoluted textual argument that goes as follows. The defnition of a “person” in 15 U. S. C. § 1127 does not include a “non- juristic person,” i. e., a group that cannot sue or be sued in its own right. Brief for Respondent 46–47. Such groups consist of multiple natural per-

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Tam's narrow reading of the term “persons” also clashes with the breadth of the disparagement clause. By its terms, the clause applies to marks that disparage not just “persons” but also “institutions” and “beliefs.” 15 U. S. C. § 1052(a). It thus applies to the members of any group whose members share particular “beliefs,” such as political, ideological, and religious groups. It applies to marks that denigrate “insti- tutions,” and on Tam's reading, it also reaches “juristic” per- sons such as corporations, unions, and other unincorporated associations. See § 1127. Thus, the clause is not limited to marks that disparage a particular natural person. If Con- gress had wanted to confne the reach of the disparagement clause in the way that Tam suggests, it would have been easy to do so. A neighboring provision of the Lanham Act denies registration to any trademark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” § 1052(c) (em- phasis added).

Tam contends that his interpretation of the disparagement clause is supported by its legislative history and by the PTO's willingness for many years to register marks that plainly denigrated African-Americans and Native Ameri- cans. These arguments are unpersuasive. As always, our inquiry into the meaning of the statute's text ceases when “the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (2002) (internal quotation marks omitted). Here, it is clear that the prohibition against regis- tering trademarks “which may disparage . . . persons,”

sons. Therefore, the members of such groups are not “persons” under the disparagement clause. Id., at 46–48.

This argument leads to the absurd result that no person is a “person” within the meaning of the disparagement clause. This is so because every person is a member of a “non-juristic” group, e. g., right-handers, left- handers, women, men, people born on odd-numbered days, people born on even-numbered days.

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§ 1052(a), prohibits registration of terms that disparage per- sons who share a common race or ethnicity.

Even if resort to legislative history and early enforcement practice were appropriate, we would fnd Tam's arguments unconvincing. Tam has not brought to our attention any ev- idence in the legislative history showing that Congress meant to adopt his interpretation. And the practice of the PTO in the years following the enactment of the disparage- ment clause is unenlightening. The admitted vagueness of the disparagement test5 and the huge volume of applications have produced a haphazard record of enforcement. (Even today, the principal register is replete with marks that many would regard as disparaging to racial and ethnic groups.6) Registration of the offensive marks that Tam cites is likely attributable not to the acceptance of his interpretation of the clause but to other factors—most likely the regrettable attitudes and sensibilities of the time in question.

III

Because the disparagement clause applies to marks that disparage the members of a racial or ethnic group, we must decide whether the clause violates the Free Speech Clause of the First Amendment. And at the outset, we must consider three arguments that would either eliminate any First Amendment protection or result in highly permissive rational-basis review. Specifcally, the Government contends

5 The PTO has acknowledged that the guidelines “for determining whether a mark is scandalous or disparaging are somewhat vague and the determination of whether a mark is scandalous or disparaging is necessar- ily a highly subjective one.” In re In Over Our Heads, Inc., 16 USPQ 2d 1653, 1654 (TTAB 1990) (brackets and internal quotation marks omitted). The PTO has similarly observed that whether a mark is disparaging “is highly subjective and, thus, general rules are diffcult to postulate.” Harjo v. Pro-Football Inc., 50 USPQ 2d 1705, 1737 (TTAB 1999), rev'd, 284 F. Supp. 2d 96 (DC 2003), rev'd and remanded in part, 415 F. 3d 44 (CADC 2005) (per curiam).

6 See, e. g., App. to Brief for Pro-Football, Inc., as Amicus Curiae.

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(1) that trademarks are government speech, not private speech, (2) that trademarks are a form of government sub- sidy, and (3) that the constitutionality of the disparagement clause should be tested under a new “government-program” doctrine. We address each of these arguments below.

The First Amendment prohibits Congress and other gov- ernment entities and actors from “abridging the freedom of speech”; the First Amendment does not say that Congress and other government entities must abridge their own abil- ity to speak freely. And our cases recognize that “[t]he Free Speech Clause . . . does not regulate government speech.” Pleasant Grove City v. Summum, 555 U. S. 460, 467 (2009); see Johanns v. Livestock Marketing Assn., 544 U. S. 550, 553 (2005) (“[T]he Government's own speech . . . is exempt from First Amendment scrutiny”); Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235 (2000).

As we have said, “it is not easy to imagine how govern- ment could function” if it were subject to the restrictions that the First Amendment imposes on private speech. Summum, supra, at 468; see Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. 200, 207–208 (2015). “ `[T]he First Amendment forbids the government to regu- late speech in ways that favor some viewpoints or ideas at the expense of others,' ” Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 394 (1993), but impos- ing a requirement of viewpoint-neutrality on government speech would be paralyzing. When a government entity embarks on a course of action, it necessarily takes a part- icular viewpoint and re jects others. The Free Speech Clause does not require government to maintain viewpoint- neutrality when its offcers and employees speak about that venture.

Here is a simple example. During the Second World War, the Federal Government produced and distributed millions

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of posters to promote the war effort.7 There were posters urging enlistment, the purchase of war bonds, and the con- servation of scarce resources.8 These posters expressed a viewpoint, but the First Amendment did not demand that the Government balance the message of these posters by producing and distributing posters encouraging Americans to refrain from engaging in these activities.

But while the government-speech doctrine is important— indeed, essential—it is a doctrine that is susceptible to dan- gerous misuse. If private speech could be passed off as gov- ernment speech by simply affxing a government seal of approval, government could silence or muffe the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents.

At issue here is the content of trademarks that are regis- tered by the PTO, an arm of the Federal Government. The Federal Government does not dream up these marks, and it does not edit marks submitted for registration. Except as required by the statute involved here, 15 U. S. C. § 1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. Thus, unless that section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Govern- ment policy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register. Instead, if the mark meets the Lanham Act's viewpoint-neutral requirements, registration is mandatory. Ibid. (requiring that “[n]o trademark . . . shall be refused registration on the principal register on account of its nature unless” it falls within an enumerated statutory exception). And if an examiner fnds that a mark is eligible for placement on the principal register, that decision is not reviewed by any higher offcial unless the registration is challenged. See

7 See, e. g., D. Nelson, The Posters That Won the War (1991). 8 Ibid.

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§§ 1062(a), 1071; 37 CFR § 41.31(a) (2016). Moreover, once a mark is registered, the PTO is not authorized to remove it from the register unless a party moves for cancellation, the registration expires, or the Federal Trade Commission initi- ates proceedings based on certain grounds. See 15 U. S. C. §§ 1058(a), 1059, 1064; 37 CFR §§ 2.111(b), 2.160.

In light of all this, it is far-fetched to suggest that the content of a registered mark is government speech. If the federal registration of a trademark makes the mark govern- ment speech, the Federal Government is babbling prodi- giously and incoherently. It is saying many unseemly things. See App. to Brief for Pro-Football, Inc., as Amicus Curiae. It is expressing contradictory views.9 It is un- ashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the con- suming public.

For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to “make.believe” (Sony),10 “Think different” (Apple), 1 1 “Just do it” (Nike),1 2 or “Have it your way” (Burger King) 13? Was the Government warning about a coming disaster when it registered the mark “EndTime Ministries” 14?

9 Compare “Abolish Abortion,” Registration No. 4,935,774 (Apr. 12, 2016), with “I Stand With Planned Parenthood, ” Registration No. 5,073,573 (Nov. 1, 2016); compare “Capitalism Is Not Moral, Not Fair, Not Freedom,” Registration No. 4,696,419 (Mar. 3, 2015), with “Capitalism En- suring Innovation,” Registration No. 3,966,092 (May 24, 2011); compare “Global Warming Is Good,” Registration No. 4,776,235 (July 21, 2015), with “A Solution to Global Warming,” Registration No. 3,875,271 (Nov. 10, 2010).

10 “make.believe,” Registration No. 4,342,903 (May 28, 2013). 11 “Think Different,” Registration No. 2,707,257 (Apr. 15, 2003). 12 “Just Do It,” Registration No. 1,875,307 (Jan. 25, 1995). 13 “Have It Your Way,” Registration No. 0,961,016 (June 12, 1973). 14 “EndTime Ministries,” Registration No. 4,746,225 (June 2, 2015).

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The PTO has made it clear that registration does not con- stitute approval of a mark. See In re Old Glory Condom Corp., 26 USPQ 2d 1216, 1220, n. 3 (TTAB 1993) (“[I]ssuance of a trademark registration . . . is not a government imprima- tur”). And it is unlikely that more than a tiny fraction of the public has any idea what federal registration of a trade- mark means. See Application of National Distillers & Chemical Corp., 49 C. C. P. A. (Pat.) 854, 863, 297 F. 2d 941, 949 (1962) (Rich, J., concurring) (“The purchasing public knows no more about trademark registrations than a man walking down the street in a strange city knows about legal title to the land and buildings he passes” (emphasis deleted)). None of our government-speech cases even remotely sup- ports the idea that registered trademarks are government speech. In Johanns, we considered advertisements promot- ing the sale of beef products. A federal statute called for the creation of a program of paid advertising “ `to advance the image and desirability of beef and beef products.' ” 544 U. S., at 561 (quoting 7 U. S. C. § 2902(13)). Congress and the Secretary of Agriculture provided guidelines for the con- tent of the ads, Department of Agriculture offcials attended the meetings at which the content of specifc ads was dis- cussed, and the Secretary could edit or reject any proposed ad. 544 U. S., at 561. Noting that “[t]he message set out in the beef promotions [was] from beginning to end the message established by the Federal Government,” we held that the ads were government speech. Id., at 560–561. The Gov- ernment's involvement in the creation of these beef ads bears no resemblance to anything that occurs when a trademark is registered.

Our decision in Summum is similarly far afeld. A small city park contained 15 monuments. 555 U. S., at 464. Eleven had been donated by private groups, and one of these displayed the Ten Commandments. Id., at 464–465. A reli- gious group claimed that the city, by accepting donated mon-

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uments, had created a limited public forum for private speech and was therefore obligated to place in the park a monument expressing the group's religious beliefs.

Holding that the monuments in the park represented gov- ernment speech, we cited many factors. Governments have used monuments to speak to the public since ancient times; parks have traditionally been selective in accepting and dis- playing donated monuments; parks would be overrun if they were obligated to accept all monuments offered by private groups; “[p]ublic parks are often closely identifed in the pub- lic mind with the government unit that owns the land”; and “[t]he monuments that are accepted . . . are meant to convey and have the effect of conveying a government message.” Id., at 472.

Trademarks share none of these characteristics. Trade- marks have not traditionally been used to convey a Govern- ment message. With the exception of the enforcement of 15 U. S. C. § 1052(a), the viewpoint expressed by a mark has not played a role in the decision whether to place it on the principal register. And there is no evidence that the public associates the contents of trademarks with the Federal Government.

This brings us to the case on which the Government relies most heavily, Walker, which likely marks the outer bounds of the government-speech doctrine. Holding that the mes- sages on Texas specialty license plates are government speech, the Walker Court cited three factors distilled from Summum. 576 U. S., at 209–210. First, license plates have long been used by the States to convey state messages. Id., at 210–212. Second, license plates “are often closely identi- fed in the public mind” with the State, since they are manu- factured and owned by the State, generally designed by the State, and serve as a form of “government ID.” Id., at 212 (internal quotation marks omitted). Third, Texas “main- tain[ed] direct control over the messages conveyed on its spe- cialty plates.” Id., at 213. As explained above, none of these factors are present in this case.

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In sum, the federal registration of trademarks is vastly different from the beef ads in Johanns, the monuments in Summum, and even the specialty license plates in Walker. Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine. For if the registration of trademarks constituted government speech, other systems of government registration could eas- ily be characterized in the same way.

Perhaps the most worrisome implication of the Govern- ment's argument concerns the system of copyright registra- tion. If federal registration makes a trademark government speech and thus eliminates all First Amendment protection, would the registration of the copyright for a book produce a similar transformation? See 808 F. 3d, at 1346 (explain- ing that if trademark registration amounts to govern- ment speech, “then copyright registration” which “has iden- tical accoutrements” would “likewise amount to government speech”).

The Government attempts to distinguish copyright on the ground that it is “ `the engine of free expression,' ” Brief for Petitioner 47 (quoting Eldred v. Ashcroft, 537 U. S. 186, 219 (2003)), but as this case illustrates, trademarks often have an expressive content. Companies spend huge amounts to create and publicize trademarks that convey a message. It is true that the necessary brevity of trademarks limits what they can say. But powerful messages can sometimes be con- veyed in just a few words.

Trademarks are private, not government, speech.

We next address the Government's argument that this case is governed by cases in which this Court has upheld the constitutionality of government programs that subsidized speech expressing a particular viewpoint. These cases im- plicate a notoriously tricky question of constitutional law. “[W]e have held that the Government `may not deny a bene-

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ft to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that beneft.' ” Agency for Int'l Development v. Alliance for Open Society Int'l, Inc., 570 U. S. 205, 214 (2013) (some internal quotation marks omitted). But at the same time, government is not required to subsidize activities that it does not wish to promote. Id., at 215. Determining which of these principles applies in a particular case “is not always self-evident,” id., at 217, but no diffcult question is pre- sented here.

Unlike the present case, the decisions on which the Gov- ernment relies all involved cash subsidies or their equivalent. In Rust v. Sullivan, 500 U. S. 173 (1991), a federal law pro- vided funds to private parties for family planning services. In National Endowment for Arts v. Finley, 524 U. S. 569 (1998), cash grants were awarded to artists. And federal funding for public libraries was at issue in United States v. American Library Assn., Inc., 539 U. S. 194 (2003). In other cases, we have regarded tax benefts as comparable to cash subsidies. See Regan v. Taxation With Representa- tion of Wash., 461 U. S. 540 (1983); Cammarano v. United States, 358 U. S 498 (1959).

The federal registration of a trademark is nothing like the programs at issue in these cases. The PTO does not pay money to parties seeking registration of a mark. Quite the contrary is true: An applicant for registration must pay the PTO a fling fee of $225–$600. 37 CFR § 2.6(a)(1). (Tam submitted a fee of $275 as part of his application to register THE SLANTS. App. 18.) And to maintain federal regis- tration, the holder of a mark must pay a fee of $300–$500 every 10 years. § 2.6(a)(5); see also 15 U. S. C. § 1059(a). The Federal Circuit concluded that these fees have fully sup- ported the registration system for the past 27 years. 808 F. 3d, at 1353.

The Government responds that registration provides valu- able non-monetary benefts that “are directly traceable to the

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resources devoted by the federal government to examining, publishing, and issuing certifcates of registration for those marks.” Brief for Petitioner 27. But just about every gov- ernment service requires the expenditure of government funds. This is true of services that beneft everyone, like police and fre protection, as well as services that are utilized by only some, e. g., the adjudication of private lawsuits and the use of public parks and highways.

Trademark registration is not the only government regis- tration scheme. For example, the Federal Government reg- isters copyrights and patents. State governments and their subdivisions register the title to real property and security interests; they issue driver's licenses, motor vehicle registra- tions, and hunting, fshing, and boating licenses or permits. Cases like Rust and Finley are not instructive in analyz- ing the constitutionality of restrictions on speech imposed in connection with such services.

Finally, the Government urges us to sustain the disparage- ment clause under a new doctrine that would apply to “government-program” cases. For the most part, this argu- ment simply merges our government-speech cases and the previously discussed subsidy cases in an attempt to construct a broader doctrine that can be applied to the registration of trademarks. The only new element in this construct con- sists of two cases involving a public employer's collection of union dues from its employees. But those cases occupy a special area of First Amendment case law, and they are far removed from the registration of trademarks.

In Davenport v. Washington Ed. Assn., 551 U. S. 177, 181– 182 (2007), a Washington law permitted a public employer automatically to deduct from the wages of employees who chose not to join the union the portion of union dues used for activities related to collective bargaining. But unless these employees affrmatively consented, the law did not allow the

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employer to collect the portion of union dues that would be used in election activities. Id., at 180–182. A public em- ployee union argued that this law unconstitutionally re- stricted its speech based on its content; that is, the law per- mitted the employer to assist union speech on matters relating to collective bargaining but made it harder for the union to collect money to support its election activities. Id., at 188. Upholding this law, we characterized it as imposing a “modest limitation” on an “extraordinary beneft,” namely, taking money from the wages of non-union members and turning it over to the union free of charge. Id., at 184. Re- fusing to confer an even greater beneft, we held, did not upset the marketplace of ideas and did not abridge the union's free speech rights. Id., at 189–190.

Ysursa v. Pocatello Ed. Assn., 555 U. S. 353 (2009), is simi- lar. There, we considered an Idaho law that allowed public employees to elect to have union dues deducted from their wages but did not allow such a deduction for money remitted to the union's political action committee. Id., at 355. We reasoned that the “the government [was] not required to as- sist others in funding the expression of particular ideas.” Id., at 358; see also id., at 355 (“The First Amendment . . . does not confer an affrmative right to use government payroll mechanisms for the purpose of obtaining funds for expression”).

Davenport and Ysursa are akin to our subsidy cases. Al- though the laws at issue in Davenport and Ysursa did not provide cash subsidies to the unions, they conferred a very valuable beneft—the right to negotiate a collective- bargaining agreement under which non-members would be obligated to pay an agency fee that the public employer would collect and turn over to the union free of charge. As in the cash subsidy cases, the laws conferred this beneft be- cause it was thought that this arrangement served important government interests. See Abood v. Detroit Bd. of Ed., 431 U. S. 209, 224–226 (1977). But the challenged laws did not

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go further and provide convenient collection mechanisms for money to be used in political activities. In essence, the Wash- ington and Idaho lawmakers chose to confer a substantial non- cash beneft for the purpose of furthering activities that they particularly desired to promote but not to provide a similar beneft for the purpose of furthering other activities. Thus, Davenport and Ysursa are no more relevant for present pur- poses than the subsidy cases previously discussed.15

Potentially more analogous are cases in which a unit of government creates a limited public forum for private speech. See, e. g., Good News Club v. Milford Central School, 533 U. S. 98, 106–107 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 831 (1995); Lamb's Chapel, 508 U. S., at 392–393. See also Legal Services Cor- poration v. Velazquez, 531 U. S. 533, 541–544 (2001). When government creates such a forum, in either a literal or “metaphysical” sense, see Rosenberger, 515 U. S., at 830, some content- and speaker-based restrictions may be al- lowed, see id., at 830–831. However, even in such cases, what we have termed “viewpoint discrimination” is forbid- den. Id., at 831.

Our cases use the term “viewpoint” discrimination in a broad sense, see ibid., and in that sense, the disparagement clause discriminates on the basis of “viewpoint.” To be sure, the clause evenhandedly prohibits disparagement of all groups. It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.

15 While these cases resemble subsidy cases insofar as the free speech rights of unions and their members are concerned, arrangements like those in these cases also implicate the free speech rights of non-union members. Our decision here has no bearing on that issue.

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We have said time and again that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592 (1969). See also Texas v. John- son, 491 U. S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society fnds the idea itself offensive or disagreeable”); Hus- tler Magazine, Inc. v. Falwell, 485 U. S. 46, 55–56 (1988); Coates v. Cincinnati, 402 U. S. 611, 615 (1971); Bachellar v. Maryland, 397 U. S. 564, 567 (1970); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 509– 514 (1969); Cox v. Louisiana, 379 U. S. 536, 551 (1965); Edwards v. South Carolina, 372 U. S. 229, 237–238 (1963); Terminiello v. Chicago, 337 U. S. 1, 4–5 (1949); Cantwell v. Connecticut, 310 U. S. 296, 311 (1940); Schneider v. State (Town of Irvington), 308 U. S. 147, 161 (1939); De Jonge v. Oregon, 299 U. S. 353, 365 (1937).

For this reason, the disparagement clause cannot be saved by analyzing it as a type of government program in which some content- and speaker-based restrictions are permitted.16

Having concluded that the disparagement clause cannot be sustained under our government-speech or subsidy cases or under the Government's proposed “government-program” doctrine, we must confront a dispute between the parties on the question whether trademarks are commercial speech and are thus subject to the relaxed scrutiny outlined in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980). The Government and amici supporting its position argue that all trademarks are commercial speech. They note that the central purposes of trademarks are com-

16 We leave open the question whether this is the appropriate framework

for analyzing free speech challenges to provisions of the Lanham Act.

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mercial and that federal law regulates trademarks to pro- mote fair and orderly interstate commerce. Tam and his amici, on the other hand, contend that many, if not all, trade- marks have an expressive component. In other words, these trademarks do not simply identify the source of a prod- uct or service but go on to say something more, either about the product or service or some broader issue. The trade- mark in this case illustrates this point. The name “The Slants” not only identifes the band but expresses a view about social issues.

We need not resolve this debate between the parties be- cause the disparagement clause cannot withstand even Cen- tral Hudson review.17 Under Central Hudson, a restriction of speech must serve “a substantial interest,” and it must be “narrowly drawn.” Id., at 564–565 (internal quotation marks omitted). This means, among other things, that “[t]he regulatory technique may extend only as far as the interest it serves.” Id., at 565. The disparagement clause fails this requirement.

It is claimed that the disparagement clause serves two in- terests. The frst is phrased in a variety of ways in the briefs. Echoing language in one of the opinions below, the Government asserts an interest in preventing “ `underrepre- sented groups' ” from being “ `bombarded with demeaning messages in commercial advertising.' ” Brief for Petitioner 48 (quoting 808 F. 3d, at 1364 (Dyk, J., concurring in part and dissenting in part)). An amicus supporting the Govern- ment refers to “encouraging racial tolerance and protecting the privacy and welfare of individuals.” Brief for Native American Organizations as Amici Curiae 21. But no mat-

17 As with the framework discussed in Part III–C of this opinion, we leave open the question whether Central Hudson provides the appropriate test for deciding free speech challenges to provisions of the Lanham Act. And nothing in our decision should be read to speak to the validity of state unfair competition provisions or product libel laws that are not before us and differ from § 1052(d)'s disparagement clause.

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ter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech ex- pressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).

The second interest asserted is protecting the orderly fow of commerce. See 808 F. 3d, at 1379–1381 (Reyna, J., dis- senting); Brief for Petitioner 49; Brief for Native American Organizations as Amici Curiae 18–21. Commerce, we are told, is disrupted by trademarks that “involv[e] disparage- ment of race, gender, ethnicity, national origin, religion, sex- ual orientation, and similar demographic classifcation.” 808 F. 3d, at 1380–1381 (opinion of Reyna, J.). Such trademarks are analogized to discriminatory conduct, which has been recognized to have an adverse effect on commerce. See ibid.; Brief for Petitioner 49; Brief for Native American Or- ganizations as Amici Curiae 18–20.

A simple answer to this argument is that the disparage- ment clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or insti- tution. It applies to trademarks like the following: “Down with racists, ” “Down with sexists, ” “Down with homo- phobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.

The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution. Is it conceivable that commerce would be dis- rupted by a trademark saying: “James Buchanan was a disas- trous president” or “Slavery is an evil institution”?

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There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent fgures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affxing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered.

For these reasons, we hold that the disparagement clause violates the Free Speech Clause of the First Amendment. The judgment of the Federal Circuit is affrmed.

It is so ordered.

Justice Gorsuch took no part in the consideration or de-

cision of this case.

Justice Kennedy, with whom Justice Ginsburg, Jus- tice Sotomayor, and Justice Kagan join, concurring in part and concurring in the judgment.

The Patent and Trademark Offce (PTO) has denied the substantial benefts of federal trademark registration to the mark THE SLANTS. The PTO did so under the mandate of the disparagement clause in 15 U. S. C. § 1052(a), which prohibits the registration of marks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, liv- ing or dead, institutions, beliefs, or national symbols.”

As the Court is correct to hold, § 1052(a) constitutes view- point discrimination—a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny. The Government's action and the statute on which it is based cannot survive this scrutiny.

The Court is correct in its judgment, and I join Parts I, II, and III–A of its opinion. This separate writing explains in greater detail why the First Amendment's protections

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against viewpoint discrimination apply to the trademark here. It submits further that the viewpoint discrimination rationale renders unnecessary any extended treatment of other questions raised by the parties.

Those few categories of speech that the government can regulate or punish—for instance, fraud, defamation, or in- citement—are well established within our constitutional tra- dition. See United States v. Stevens, 559 U. S. 460, 468 (2010). Aside from these and a few other narrow excep- tions, it is a fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828–829 (1995).

The First Amendment guards against laws “targeted at specifc subject matter,” a form of speech suppression known as content based discrimination. Reed v. Town of Gilbert, 576 U. S. 155, 169 (2015). This category includes a subtype of laws that go further, aimed at the suppression of “particu- lar views . . . on a subject.” Rosenberger, 515 U. S., at 829. A law found to discriminate based on viewpoint is an “egre- gious form of content discrimination,” which is “ `presump- tively unconstitutional.' ” Id., at 829–830.

At its most basic, the test for viewpoint discrimination is whether—within the relevant subject category—the govern- ment has singled out a subset of messages for disfavor based on the views expressed. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) (“[T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject”). In the in- stant case, the disparagement clause the Government now seeks to implement and enforce identifes the relevant sub- ject as “persons, living or dead, institutions, beliefs, or na-

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tional symbols.” 15 U. S. C. § 1052(a). Within that cate- gory, an applicant may register a positive or benign mark but not a derogatory one. The law thus refects the Govern- ment's disapproval of a subset of messages it fnds offensive. This is the essence of viewpoint discrimination.

The Government disputes this conclusion. It argues, to begin with, that the law is viewpoint neutral because it ap- plies in equal measure to any trademark that demeans or offends. This misses the point. A subject that is frst de- fned by content and then regulated or censored by mandat- ing only one sort of comment is not viewpoint neutral. To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so. Cf. Rosenberger, supra, at 831–832 (“The . . . declaration that debate is not skewed so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple ways”). The logic of the Government's rule is that a law would be viewpoint neutral even if it provided that public offcials could be praised but not condemned. The First Amendment's view- point neutrality principle protects more than the right to identify with a particular side. It protects the right to cre- ate and present arguments for particular positions in partic- ular ways, as the speaker chooses. By mandating positivity, the law here might silence dissent and distort the market- place of ideas.

The Government next suggests that the statute is view- point neutral because the disparagement clause applies to trademarks regardless of the applicant's personal views or reasons for using the mark. Instead, registration is denied based on the expected reaction of the applicant's audience. In this way, the argument goes, it cannot be said that Gov- ernment is acting with hostility toward a particular point of view. For example, the Government does not dispute that respondent seeks to use his mark in a positive way. Indeed, respondent endeavors to use The Slants to supplant a racial epithet, using new insights, musical talents, and wry humor

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to make it a badge of pride. Respondent's application was denied not because the Government thought his object was to demean or offend but because the Government thought his trademark would have that effect on at least some Asian-Americans.

The Government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker's audience. The Court has suggested that viewpoint discrimination occurs when the government in- tends to suppress a speaker's beliefs, Reed, supra, at 169– 170, but viewpoint discrimination need not take that form in every instance. The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at frst hearing. An initial reaction may prompt further refection, leading to a more reasoned, more tolerant position.

Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the gov- ernment's disapproval of the speaker's choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would fnd the speech offensive. For reasons like these, the Court's cases have long prohibited the government from justifying a First Amendment burden by pointing to the offensiveness of the speech to be suppressed. See ante, at 244 (collecting examples).

The Government's argument in defense of the statute as- sumes that respondent's mark is a negative comment. In addressing that argument on its own terms, this opinion is not intended to imply that the Government's interpretation is accurate. From respondent's submissions, it is evident he would disagree that his mark means what the Government says it does. The trademark will have the effect, respond-

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ent urges, of reclaiming an offensive term for the positive purpose of celebrating all that Asian-Americans can and do contribute to our diverse Nation. Brief for Respondent 1– 4, 42–43. While thoughtful persons can agree or disagree with this approach, the dissonance between the trademark's potential to teach and the Government's insistence on its own, opposite, and negative interpretation confrms the con- stitutional vice of the statute.

The parties dispute whether trademarks are commercial speech and whether trademark registration should be consid- ered a federal subsidy. The former issue may turn on whether certain commercial concerns for the protection of trademarks might, as a general matter, be the basis for regu- lation. However that issue is resolved, the viewpoint based discrimination at issue here necessarily invokes heightened scrutiny.

“Commercial speech is no exception,” the Court has ex- plained, to the principle that the First Amendment “requires heightened scrutiny whenever the government creates a reg- ulation of speech because of disagreement with the message it conveys.” Sorrell v. IMS Health Inc., 564 U. S. 552, 566 (2011) (internal quotation marks omitted). Unlike content based discrimination, discrimination based on viewpoint, in- cluding a regulation that targets speech for its offensiveness, remains of serious concern in the commercial context. See Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 65, 71– 72 (1983).

To the extent trademarks qualify as commercial speech, they are an example of why that term or category does not serve as a blanket exemption from the First Amendment's requirement of viewpoint neutrality. Justice Holmes' refer- ence to the “free trade in ideas” and the “power of . . . thought to get itself accepted in the competition of the mar- ket,” Abrams v. United States, 250 U. S. 616, 630 (1919) (dis-

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senting opinion), was a metaphor. In the realm of trade- marks, the metaphorical marketplace of ideas becomes a tangible, powerful reality. Here that real marketplace ex- ists as a matter of state law and our common-law tradition, quite without regard to the Federal Government. See ante, at 224. These marks make up part of the expression of every- day life, as with the names of entertainment groups, broad- cast networks, designer clothing, newspapers, automobiles, candy bars, toys, and so on. See Brief for Pro-Football, Inc., as Amicus Curiae 8 (collecting examples). Nonproft orga- nizations—ranging from medical-research charities and other humanitarian causes to political advocacy groups—also have trademarks, which they use to compete in a real eco- nomic sense for funding and other resources as they seek to persuade others to join their cause. See id., at 8–9 (collect- ing examples). To permit viewpoint discrimination in this context is to permit Government censorship.

This case does not present the question of how other provi- sions of the Lanham Act should be analyzed under the First Amendment. It is well settled, for instance, that to the ex- tent a trademark is confusing or misleading the law can pro- tect consumers and trademark owners. See, e. g., FTC v. Winsted Hosiery Co., 258 U. S. 483, 493 (1922) (“The labels in question are literally false, and . . . palpably so. All are, as the Commission found, calculated to deceive and do in fact deceive a substantial portion of the purchasing public”). This case also does not involve laws related to product label- ing or otherwise designed to protect consumers. See Sor- rell, supra, at 579 (“[T]he government's legitimate interest in protecting consumers from commercial harms explains why commercial speech can be subject to greater govern- mental regulation than noncommercial speech” (internal quotation marks omitted)). These considerations, however, do not alter the speech principles that bar the viewpoint dis- crimination embodied in the statutory provision at issue here.

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It is telling that the Court's precedents have recognized just one narrow situation in which viewpoint discrimination is permissible: where the government itself is speaking or recruiting others to communicate a message on its behalf. See Legal Services Corporation v. Velazquez, 531 U. S. 533, 540–542 (2001); Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229, 235 (2000); Rosenberger, 515 U. S., at 833. The exception is necessary to allow the gov- ernment to stake out positions and pursue policies. See Southworth, supra, at 235; see also ante, at 234–235. But it is also narrow, to prevent the government from claiming that every government program is exempt from the First Amend- ment. These cases have identifed a number of factors that, if present, suggest the government is speaking on its own behalf; but none are present here. See ante, at 236–239.

There may be situations where private speakers are se- lected for a government program to assist the government in advancing a particular message. That is not this case either. The central purpose of trademark registration is to facilitate source identifcation. To serve that broad purpose, the Gov- ernment has provided the benefts of federal registration to millions of marks identifying every type of product and cause. Registered trademarks do so by means of a wide di- versity of words, symbols, and messages. Whether a mark is disparaging bears no plausible relation to that goal. While defning the purpose and scope of a federal program for these purposes can be complex, see, e. g., Agency for Int'l Development v. Alliance for Open Society Int'l, Inc., 570 U. S. 205, 214–215 (2013), our cases are clear that viewpoint discrimination is not permitted where, as here, the Govern- ment “expends funds to encourage a diversity of views from private speakers,” Velazquez, supra, at 542 (internal quota- tion marks omitted).

A law that can be directed against speech found offensive to some portion of the public can be turned against minority

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and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government's benevolence. Instead, our reliance must be on the substan- tial safeguards of free and open discussion in a democratic society.

For these reasons, I join the Court's opinion in part and

concur in the judgment.

Justice Thomas, concurring in part and concurring in

the judgment.

I join the opinion of Justice Alito, except for Part II. Respondent failed to present his statutory argument either to the Patent and Trademark Offce or to the Court of Ap- peals, and we declined respondent's invitation to grant cer- tiorari on this question. Ante, at 230. I see no reason to address this legal question in the frst instance. See Star Athletica, L. L. C. v. Varsity Brands, Inc., 580 U. S. 405, 413 (2017).

I also write separately because “I continue to believe that when the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is ap- propriate, whether or not the speech in question may be characterized as `commercial.' ” Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, 572 (2001) (Thomas, J., concurring in part and concurring in judgment); see also, e. g., 44 Liquor- mart, Inc. v. Rhode Island, 517 U. S. 484, 518 (1996) (same). I nonetheless join Part IV of Justice Alito's opinion be- cause it correctly concludes that the disparagement clause, 15 U. S. C. § 1052(a), is unconstitutional even under the less stringent test announced in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980).

OCTOBER TERM, 2016

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BRISTOL-MYERS SQUIBB CO. v. SUPERIOR COURT OF CALIFORNIA, SAN FRANCISCO COUNTY, et al.

certiorari to the supreme court of california

No. 16–466. Argued April 25, 2017—Decided June 19, 2017

A group of plaintiffs, most of whom are not California residents, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company's drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in business activities in California and sells Plavix there, BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in the State. And the nonresident plaintiffs did not allege that they obtained Plavix from a California source, that they were injured by Plavix in California, or that they were treated for their injuries in California.

The California Superior Court denied BMS's motion to quash service of summons on the nonresidents' claims for lack of personal jurisdiction, concluding that BMS's extensive activities in the State gave the Califor- nia courts general jurisdiction. Following this Court's decision in Daimler AG v. Bauman, 571 U. S. 117, the State Court of Appeal found that the California courts lacked general jurisdiction. But the Court of Appeal went on to fnd that the California courts had specifc jurisdic- tion over the claims brought by the nonresident plaintiffs. Affrming, the State Supreme Court applied a “sliding scale approach” to specifc jurisdiction, concluding that BMS's “wide ranging” contacts with the State were enough to support a fnding of specifc jurisdiction over the claims brought by the nonresident plaintiffs. That attenuated connec- tion was met, the court held, in part because the nonresidents' claims were similar in many ways to the California residents' claims and be- cause BMS engaged in other activities in the State.

Held: California courts lack specifc jurisdiction to entertain the nonresi-

dents' claims. Pp. 261–269.

(a) The personal jurisdiction of state courts is “subject to review for compatibility with the Fourteenth Amendment's Due Process Clause.” Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915, 918. This Court's decisions have recognized two types of personal jurisdic- tion: general and specifc. For general jurisdiction, the “paradigm forum” is an “individual's domicile,” or, for corporations, “an equivalent

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place, one in which the corporation is fairly regarded as at home.” Id., at 924. Specifc jurisdiction, however, requires “the suit” to “aris[e] out of or relat[e] to the defendant's contacts with the forum.” Daimler, supra, at 127 (internal quotation marks omitted).

The “primary concern” in assessing personal jurisdiction is “the bur- den on the defendant.” World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 292. Assessing this burden obviously requires a court to con- sider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question. At times, “the Due Process Clause, acting as an instru- ment of interstate federalism, may . . . divest the State of its power to render a valid judgment.” Id., at 294. Pp. 261–263.

(b) Settled principles of specifc jurisdiction control this case. For a court to exercise specifc jurisdiction over a claim there must be an “affliation between the forum and the underlying controversy, princi- pally, [an] activity or an occurrence that takes place in the forum State.” Goodyear, supra, at 919 (internal quotation marks and brackets omit- ted). When no such connection exists, specifc jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State. The California Supreme Court's “sliding scale approach”— which resembles a loose and spurious form of general jurisdiction—is thus diffcult to square with this Court's precedents. That court found specifc jurisdiction without identifying any adequate link between the State and the nonresidents' claims. The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California does not allow the State to assert specifc jurisdiction over the nonresidents' claims. Nor is it suffcient (or relevant) that BMS conducted research in California on matters unrelated to Plavix. What is needed is a con- nection between the forum and the specifc claims at issue. Cf. Walden v. Fiore, 571 U. S. 277. Pp. 264–266.

(c) The nonresident plaintiffs' reliance on Keeton v. Hustler Maga- zine, Inc., 465 U. S. 770, and Phillips Petroleum Co. v. Shutts, 472 U. S. 797, is misplaced. Keeton concerned jurisdiction to determine the scope of a claim involving in-state injury and injury to residents of the State, not, as here, jurisdiction to entertain claims involving no in-state injury and no injury to residents of the forum State. And Shutts, which con- cerned the due process rights of plaintiffs, has no bearing on the ques- tion presented here. Pp. 266–267.

(d) BMS's decision to contract with McKesson, a California company, to distribute Plavix nationally does not provide a suffcient basis for personal jurisdiction. It is not alleged that BMS engaged in relevant acts together with McKesson in California or that BMS is derivatively

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liable for McKesson's conduct in California. The bare fact that BMS contracted with a California distributor is not enough to establish per- sonal jurisdiction in the State. P. 268.

(e) The Court's decision will not result in the parade of horribles that respondents conjure up. It does not prevent the California and out-of- state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. Alternatively, the nonresident plaintiffs could probably sue together in their respective home States. In addition, since this decision concerns the due process limits on the exercise of specifc jurisdiction by a State, the question remains open whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court. Pp. 268–269.

1 Cal. 5th 783, 377 P. 3d 874, reversed and remanded.

Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Kagan, and Gorsuch, JJ., joined. Sotomayor, J., fled a dissenting opinion, post, p. 269.

Neal Kumar Katyal argued the cause for petitioner. With him on the briefs were Jessica L. Ellsworth, Frederick Liu, Sean Marotta, Sara Solow, Anand Agneshwar, and Daniel S. Pariser.

Rachel P. Kovner argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Acting Solicitor General Francisco, Acting Assistant Attorney General Readler, Deputy Solicitor General Kneed- ler, and Michael S. Raab.

Thomas C. Goldstein argued the cause for respondents. With him on the brief were Eric F. Citron, Charles H. Davis, Paul J. Napoli, Hunter J. Shkolnik, and Marie Napoli.*

*Briefs of amici curiae urging reversal were fled for the Atlantic Legal Foundation et al. by Martin S. Kaufman and Mary-Christine Sungaila; for the Chamber of Commerce of the United States of America et al. by Andrew J. Pincus, Archis A. Parasharami, Matthew A. Waring, Kate Comerford Todd, and Sheldon Gilbert; for DRI–The Voice of the Defense Bar by Lawrence S. Ebner and John E. Cuttino; for GlaxoSmithKline LLC by Jeffrey S. Bucholtz and Ethan P. Davis; for MoneyMutual LLC by Jonathan S. Massey, Marc A. Goldman, Donald J. Putterman, and Thomas H. Boyd; for Pharmaceutical Research and Manufacturers of America by Mark Haddad, Alycia Degen, Naomi Igra, James C. Stansel,

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Justice Alito delivered the opinion of the Court. More than 600 plaintiffs, most of whom are not California residents, fled this civil action in a California state court against Bristol-Myers Squibb Company (BMS), asserting a variety of state-law claims based on injuries allegedly caused by a BMS drug called Plavix. The California Supreme Court held that the California courts have specifc jurisdic- tion to entertain the nonresidents' claims. We now reverse.

BMS, a large pharmaceutical company, is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. 1 Cal. 5th 783, 790, 377 P. 3d 874, 879 (2016). Over 50 percent of BMS's work force in the United States is employed in those two States. Ibid.

BMS also engages in business activities in other jurisdic- tions, including California. Five of the company's research

Melissa B. Kimmell, Carter G. Phillips, and Rebecca K. Wood; for the Product Liability Advisory Council, Inc., by Joel G. Pieper, William F. Womble, Jr., and James R. Morgan, Jr.; for the Reporters Committee for Freedom of the Press et al. by Thomas S. Leatherbury, Marc A. Fuller, and Megan M. Coker; for TV Azteca, S.A.B. de C.V. et al. by David C. Frederick and Derek T. Ho; and for the Washington Legal Foundation et al. by Richard A. Samp.

Briefs of amici curiae urging affrmance were fled for the American Association for Justice by Robert S. Peck and Julie Braman Kane; for the Asbestos Disease Awareness Organization by Brent M. Rosenthal; for the Attorneys Information Exchange Group by John Gsanger and Larry E. Coben; for the California Constitution Center by Erik S. Jaffe, David A. Carrillo, Stephen M. Duvernay, Mitchell Breit, Andy D. Birchfeld, Jr., P. Leigh O'Dell, Peter W. Burg, George Fleming, Rand Nolen, G. Sean Jez, W. Mark Lanier, and John Boundas; for the Center for Auto Safety by Larry E. Coben; for Civil Procedure Professors by Pamela K. Bookman, pro se; for Professors of Civil Procedure and Federal Courts by Allan Ides, pro se; for Public Justice, P. C., by Louis M. Bograd, Rebecca L. Phillips, and Leslie A. Brueckner; and for Alan B. Morrison by Mr. Morrison, pro se.

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and laboratory facilities, which employ a total of around 160 employees, are located there. Ibid. BMS also employs about 250 sales representatives in California and maintains a small state-government advocacy offce in Sacramento. Ibid.

One of the pharmaceuticals that BMS manufactures and sells is Plavix, a prescription drug that thins the blood and inhibits blood clotting. BMS did not develop Plavix in Cali- fornia, did not create a marketing strategy for Plavix in California, and did not manufacture, label, package, or work on the regulatory approval of the product in California. Ibid. BMS instead engaged in all of these activities in either New York or New Jersey. Ibid. But BMS does sell Plavix in California. Between 2006 and 2012, it sold almost 187 million Plavix pills in the State and took in more than $900 million from those sales. Id., at 790–791, 377 P. 3d, at 879. This amounts to a little over 1 percent of the com- pany's nationwide sales revenue. Id., at 790, 377 P. 3d, at 879.

A group of plaintiffs—consisting of 86 California residents and 592 residents from 33 other States—fled eight separate complaints in California Superior Court, alleging that Plavix had damaged their health. Id., at 789, 377 P. 3d, at 878. All the complaints asserted 13 claims under California law, including products liability, negligent misrepresentation, and misleading advertising claims. Ibid. The nonresident plaintiffs did not allege that they obtained Plavix through California physicians or from any other California source; nor did they claim that they were injured by Plavix or were treated for their injuries in California.

Asserting lack of personal jurisdiction, BMS moved to quash service of summons on the nonresidents' claims, but the California Superior Court denied this motion, fnding that the California courts had general jurisdiction over BMS “[b]ecause [it] engages in extensive activities in California.”

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App. to Pet. for Cert. 150. BMS unsuccessfully petitioned the State Court of Appeal for a writ of mandate, but after our decision on general jurisdiction in Daimler AG v. Bau- man, 571 U. S. 117 (2014), the California Supreme Court in- structed the Court of Appeal “to vacate its order denying mandate and to issue an order to show cause why relief sought in the petition should not be granted.” App. 9–10. The Court of Appeal then changed its decision on the ques- tion of general jurisdiction. 175 Cal. Rptr. 3d 412 (2014) (of- fcially depublished). Under Daimler, it held, general juris- diction was clearly lacking, but it went on to fnd that the California courts had specifc jurisdiction over the nonresi- dents' claims against BMS. 175 Cal. Rptr. 3d, at 425–439. The California Supreme Court affrmed. The court unani- mously agreed with the Court of Appeal on the issue of gen- eral jurisdiction, but the court was divided on the question of specifc jurisdiction. The majority applied a “sliding scale approach to specifc jurisdiction.” 1 Cal. 5th, at 806, 377 P. 3d, at 889. Under this approach, “the more wide ranging the defendant's forum contacts, the more readily is shown a connection between the forum contacts and the claim.” Ibid. (internal quotation marks omitted). Applying this test, the majority concluded that “BMS's extensive contacts with California” permitted the exercise of specifc jurisdic- tion “based on a less direct connection between BMS's forum activities and plaintiffs' claims than might otherwise be re- quired.” Ibid. This attenuated requirement was met, the majority found, because the claims of the nonresidents were similar in several ways to the claims of the California resi- dents (as to which specifc jurisdiction was uncontested). Id., at 803–806, 377 P. 3d, at 887–889. The court noted that “[b]oth the resident and nonresident plaintiffs' claims are based on the same allegedly defective product and the as- sertedly misleading marketing and promotion of that prod- uct.” Id., at 804, 377 P. 3d, at 888. And while acknowledg- ing that “there is no claim that Plavix itself was designed

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and developed in [BMS's California research facilities],” the court thought it signifcant that other research was done in the State. Ibid.

Three justices dissented. “The claims of . . . nonresidents injured by their use of Plavix they purchased and used in other states,” they wrote, “in no sense arise from BMS's marketing and sales of Plavix in California,” and they found that the “mere similarity” of the residents' and nonresidents' claims was not enough. Id., at 819, 377 P. 3d, at 898 (opinion of Werdegar, J.). The dissent accused the majority of “ex- pand[ing] specifc jurisdiction to the point that, for a large category of defendants, it becomes indistinguishable from general jurisdiction.” Id., at 816, 377 P. 3d, at 896.

We granted certiorari to decide whether the California courts' exercise of jurisdiction in this case violates the Due Process Clause of the Fourteenth Amendment. 580 U. S. 1097 (2017).1

It has long been established that the Fourteenth Amend- ment limits the personal jurisdiction of state courts. See, e. g., Daimler, supra, at 125–132; World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 291 (1980); International Shoe Co. v. Washington, 326 U. S. 310, 316–317 (1945); Pennoyer v. Neff, 95 U. S. 714, 733 (1878). Because “[a] state court's assertion of jurisdiction exposes defendants to the State's coercive power,” it is “subject to review for com- patibility with the Fourteenth Amendment's Due Process Clause,” Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915, 918 (2011), which “limits the power of a state court to render a valid personal judgment against a nonresi-

1 California law provides that its courts may exercise jurisdiction “on any basis not inconsistent with the Constitution . . . of the United States,” Cal. Civ. Proc. Code Ann. § 410.10 (West 2004); see Daimler AG v. Bau- man, 571 U. S. 117, 125 (2014).

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dent defendant,” World-Wide Volkswagen, supra, at 291. The primary focus of our personal jurisdiction inquiry is the defendant's relationship to the forum State. See Walden v. Fiore, 571 U. S. 277, 283–286 (2014); Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 806–807 (1985).

Since our seminal decision in International Shoe, our deci- sions have recognized two types of personal jurisdiction: “general” (sometimes called “all-purpose”) jurisdiction and “specific ” (sometimes called “case-linked”) jurisdiction. Goodyear, 564 U. S., at 919. “For an individual, the para- digm forum for the exercise of general jurisdiction is the individual's domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home.” Id., at 924. A court with general jurisdiction may hear any claim against that defendant, even if all the inci- dents underlying the claim occurred in a different State. Id., at 919. But “only a limited set of affliations with a forum will render a defendant amenable to” general jurisdic- tion in that State. Daimler, 571 U. S., at 137.

Specifc jurisdiction is very different. In order for a state court to exercise specifc jurisdiction, “the suit” must “aris[e] out of or relat[e] to the defendant's contacts with the forum.” Id., at 127 (internal quotation marks omitted; emphasis added); see Burger King Corp. v. Rudzewicz, 471 U. S. 462, 472–473 (1985); Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414 (1984). In other words, there must be “an affliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation.” Goodyear, 564 U. S., at 919 (internal quotation marks and brackets omitted). For this reason, “specifc jurisdiction is confned to adjudication of issues de- riving from, or connected with, the very controversy that establishes jurisdiction.” Ibid. (internal quotation marks omitted).

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In determining whether personal jurisdiction is present, a court must consider a variety of interests. These include “the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff 's forum of choice.” Kulko v. Superior Court of Cal., City and County of San Francisco, 436 U. S. 84, 92 (1978); see Daimler, supra, at 139–141, n. 20; Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102, 113 (1987); World- Wide Volkswagen, 444 U. S., at 292. But the “primary con- cern” is “the burden on the defendant.” Id., at 292. As- sessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submit- ting to the coercive power of a State that may have little legitimate interest in the claims in question. As we have put it, restrictions on personal jurisdiction “are more than a guarantee of immunity from inconvenient or distant litiga- tion. They are a consequence of territorial limitations on the power of the respective States.” Hanson v. Denckla, 357 U. S. 235, 251 (1958). “[T]he States retain many essen- tial attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sover- eignty of each State . . . implie[s] a limitation on the sover- eignty of all its sister States.” World-Wide Volkswagen, 444 U. S., at 293. And at times, this federalism interest may be decisive. As we explained in World-Wide Volkswagen, “[e]ven if the defendant would suffer minimal or no inconven- ience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federal- ism, may sometimes act to divest the State of its power to render a valid judgment.” Id., at 294.

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III

Our settled principles regarding specifc jurisdiction con- trol this case. In order for a court to exercise specifc juris- diction over a claim, there must be an “affliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.” Goodyear, 564 U. S., at 919 (internal quotation marks and brackets in original omitted). When there is no such connection, specifc jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State. See id., at 931, n. 6 (“[E]ven regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales”).

For this reason, the California Supreme Court's “sliding scale approach” is diffcult to square with our precedents. Under the California approach, the strength of the requisite connection between the forum and the specifc claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claims. Our cases provide no support for this approach, which resembles a loose and spurious form of general jurisdiction. For specifc jurisdiction, a defend- ant's general connections with the forum are not enough. As we have said, “[a] corporation's `continuous activity of some sorts within a state . . . is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.' ” Id., at 927 (quoting International Shoe, 326 U. S., at 318).

The present case illustrates the danger of the California approach. The State Supreme Court found that specifc ju- risdiction was present without identifying any adequate link between the State and the nonresidents' claims. As noted, the nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California.

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The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California—and allegedly sustained the same injuries as did the nonresidents—does not allow the State to assert specifc jurisdiction over the nonresi- dents' claims. As we have explained, “a defendant's rela- tionship with a . . . third party, standing alone, is an insuff- cient basis for jurisdiction.” Walden, 571 U. S., at 286. This remains true even when third parties (here, the plain- tiffs who reside in California) can bring claims similar to those brought by the nonresidents. Nor is it suffcient—or even relevant—that BMS conducted research in California on matters unrelated to Plavix. What is needed—and what is missing here—is a connection between the forum and the specifc claims at issue.

Our decision in Walden, supra, illustrates this require- ment. In that case, Nevada plaintiffs sued an out-of-state defendant for conducting an allegedly unlawful search of the plaintiffs while they were in Georgia preparing to board a plane bound for Nevada. We held that the Nevada courts lacked specifc jurisdiction even though the plaintiffs were Nevada residents and “suffered foreseeable harm in Ne- vada.” Id., at 289. Because the “relevant conduct occurred entirely in Georgia, . . . the mere fact that [this] conduct affected plaintiffs with connections to the forum State d[id] not suffce to authorize jurisdiction.” Id., at 291 (emphasis added).

In today's case, the connection between the nonresidents' claims and the forum is even weaker. The relevant plaintiffs are not California residents and do not claim to have suffered harm in that State. In addition, as in Walden, all the con- duct giving rise to the nonresidents' claims occurred else- where. It follows that the California courts cannot claim specifc jurisdiction. See World-Wide Volkswagen, supra, at 295 (fnding no personal jurisdiction in Oklahoma because the defendant “carr[ied] on no activity whatsoever in Okla- homa” and dismissing “the fortuitous circumstance that a

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single Audi automobile, sold [by defendants] in New York to New York residents, happened to suffer an accident while passing through Oklahoma” as an “isolated occurrence”).

The nonresidents maintain that two of our cases support the decision below, but they misinterpret those precedents. In Keeton v. Hustler Magazine, Inc., 465 U. S. 770 (1984), a New York resident sued Hustler in New Hampshire, claim- ing that she had been libeled in fve issues of the magazine, which was distributed throughout the country, including in New Hampshire, where it sold 10,000 to 15,000 copies per month. Concluding that specifc jurisdiction was present, we relied principally on the connection between the circula- tion of the magazine in New Hampshire and damage alleg- edly caused within the State. We noted that “[f]alse state- ments of fact harm both the subject of the falsehood and the readers of the statement.” Id., at 776 (emphasis deleted). This factor amply distinguishes Keeton from the present case, for here the nonresidents' claims involve no harm in California and no harm to California residents.

The nonresident plaintiffs in this case point to our holding in Keeton that there was jurisdiction in New Hampshire to entertain the plaintiff 's request for damages suffered outside the State, id., at 774, but that holding concerned jurisdiction to determine the scope of a claim involving in-state injury and injury to residents of the State, not, as in this case, juris- diction to entertain claims involving no in-state injury and no injury to residents of the forum State. Keeton held that there was jurisdiction in New Hampshire to consider the full measure of the plaintiff 's claim, but whether she could actu- ally recover out-of-state damages was a merits question gov- erned by New Hampshire libel law. Id., at 778, n. 9.

The Court's decision in Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (1985), which involved a class action fled in Kansas, is even less relevant. The Kansas court exercised

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personal jurisdiction over the claims of nonresident class members, and the defendant, Phillips Petroleum, argued that this violated the due process rights of these class members because they lacked minimum contacts with the State.2 Ac- cording to the defendant, the out-of-state class members should not have been kept in the case unless they affrma- tively opted in, instead of merely failing to opt out after re- ceiving notice. Id., at 812.

Holding that there had been no due process violation, the Court explained that the authority of a State to entertain the claims of nonresident class members is entirely different from its authority to exercise jurisdiction over an out-of- state defendant. Id., at 808–812. Since Shutts concerned the due process rights of plaintiffs, it has no bearing on the question presented here.

Respondents nevertheless contend that Shutts supports their position because, in their words, it would be “absurd to believe that [this Court] would have reached the exact oppo- site result if the petitioner [Phillips] had only invoked its own due-process rights, rather than those of the non-resident plaintiffs.” Brief for Respondents 28–29, n. 6 (emphasis de- leted). But the fact remains that Phillips did not assert that Kansas improperly exercised personal jurisdiction over it, and the Court did not address that issue.3 Indeed, the Court stated specifcally that its “discussion of personal ju- risdiction [did not] address class actions where the jurisdic- tion is asserted against a defendant class.” Shutts, supra, at 812, n. 3.

2 The Court held that the defendant had standing to argue that the Kan- sas court had improperly exercised personal jurisdiction over the claims of the out-of-state class members because that holding materially affected the defendant's own interests, specifcally, the res judicata effect of an adverse judgment. 472 U. S., at 803–806.

3 Petitioner speculates that Phillips did not invoke its own due process rights because it was believed at the time that the Kansas court had gen- eral jurisdiction. See Reply Brief 7, n. 1.

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In a last ditch contention, respondents assert that BMS's “decision to contract with a California company [McKesson] to distribute [Plavix] nationally” provides a suffcient basis for personal jurisdiction. Tr. of Oral Arg. 32. But as we have explained, “[t]he requirements of International Shoe . . . must be met as to each defendant over whom a state court exercises jurisdiction.” Rush v. Savchuk, 444 U. S. 320, 332 (1980); see Walden, 571 U. S., at 286 (“[A] defendant's relationship with a . . . third party, standing alone, is an in- suffcient basis for jurisdiction”). In this case, it is not al- leged that BMS engaged in relevant acts together with McKesson in California. Nor is it alleged that BMS is deriv- atively liable for McKesson's conduct in California. And the nonresidents “have adduced no evidence to show how or by whom the Plavix they took was distributed to the pharma- cies that dispensed it to them.” 1 Cal. 5th, at 815, 377 P. 3d, at 895 (Werdegar, J., dissenting) (emphasis deleted). See Tr. of Oral Arg. 33 (“It is impossible to trace a particular pill to a particular person . . . . It's not possible for us to track particularly to McKesson”). The bare fact that BMS con- tracted with a California distributor is not enough to estab- lish personal jurisdiction in the State.

Our straightforward application in this case of settled principles of personal jurisdiction will not result in the pa- rade of horribles that respondents conjure up. See Brief for Respondents 38–47. Our decision does not prevent the Cali- fornia and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdic- tion over BMS. BMS concedes that such suits could be brought in either New York or Delaware. See Brief for Petitioner 13. Alternatively, the plaintiffs who are resi- dents of a particular State—for example, the 92 plaintiffs from Texas and the 71 from Ohio—could probably sue to- gether in their home States. In addition, since our decision

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concerns the due process limits on the exercise of specifc jurisdiction by a State, we leave open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court. See Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U. S. 97, 102, n. 5 (1987).

The judgment of the California Supreme Court is re- versed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Sotomayor, dissenting. Three years ago, the Court imposed substantial curbs on the exercise of general jurisdiction in its decision in Daimler AG v. Bauman, 571 U. S. 117 (2014). Today, the Court takes its frst step toward a similar contraction of specifc jurisdic- tion by holding that a corporation that engages in a nation- wide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State.

I fear the consequences of the Court's decision today will be substantial. The majority's rule will make it diffcult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone. It will make it impossible to bring a nationwide mass action in state court against de- fendants who are “at home” in different States. And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary. A core concern in this Court's personal jurisdiction cases is fairness. And there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike.

Bristol-Myers Squibb is a Fortune 500 pharmaceutical company incorporated in Delaware and headquartered in

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New York. It employs approximately 25,000 people world- wide and earns annual revenues of over $15 billion. In the late 1990's, Bristol-Myers began to market and sell a pre- scription blood thinner called Plavix. Plavix was advertised as an effective tool for reducing the risk of blood clotting for those vulnerable to heart attacks and to strokes. The ads worked: At the height of its popularity, Plavix was a block- buster, earning Bristol-Myers billions of dollars in annual revenues.

Bristol-Myers' advertising and distribution efforts were national in scope. It conducted a single nationwide adver- tising campaign for Plavix, using television, magazine, and Internet ads to broadcast its message. A consumer in Cali- fornia heard the same advertisement as a consumer in Maine about the benefts of Plavix. Bristol-Myers' distribution of Plavix also proceeded through nationwide channels: Consist- ent with its usual practice, it relied on a small number of wholesalers to distribute Plavix throughout the country. One of those distributors, McKesson Corporation, was named as a defendant below; during the relevant time period, McKesson was responsible for almost a quarter of Bristol-Myers' revenue worldwide.

The 2005 publication of an article in the New England Journal of Medicine questioning the effcacy and safety of Plavix put Bristol-Myers on the defensive, as consumers around the country began to claim that they were injured by the drug. The plaintiffs in these consolidated cases are 86 people who allege they were injured by Plavix in California and several hundred others who say they were injured by the drug in other States.1 They fled their suits in Califor- nia Superior Court, raising product-liability claims against Bristol-Myers and McKesson. Their claims are “materially

1 Like the parties and the majority, I refer to these people as “residents” and “nonresidents” of California as a convenient shorthand. See ante, at 259; Brief for Petitioner 4–5, n. 1; Brief for Respondents 2, n. 1. For jurisdictional purposes, the important question is generally (as it is here) where a plaintiff was injured, not where he or she resides.

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identical,” as Bristol-Myers concedes. See Brief for Peti- tioner 4, n. 1. Bristol-Myers acknowledged it was subject to suit in California state court by the residents of that State. But it moved to dismiss the claims brought by the nonresi- dent plaintiffs—respondents here—for lack of jurisdiction. The question here, accordingly, is not whether Bristol-Myers is subject to suit in California on claims that arise out of the design, development, manufacture, marketing, and distribu- tion of Plavix—it is. The question is whether Bristol-Myers is subject to suit in California only on the residents' claims, or whether a state court may also hear the nonresidents' “identical” claims.

As the majority explains, since our pathmarking opinion in International Shoe Co. v. Washington, 326 U. S. 310 (1945), the touchstone of the personal jurisdiction analysis has been the question whether a defendant has “certain mini- mum contacts with [the State] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.' ” Id., at 316 (quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940)). For decades this Court has con- sidered that question through two different jurisdictional frames: “general” and “specifc” jurisdiction. See Helicop- teros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414, nn. 8–9 (1984). Under our current case law, a state court may exercise general, or all-purpose, jurisdiction over a defendant corporation only if its “affliations with the State are so `continuous and systematic' as to render [it] essentially at home in the forum State.” Goodyear Dunlop Tires Oper- ations, S. A. v. Brown, 564 U. S. 915, 919 (2011).2

2 Respondents do not contend that the California courts would be able to exercise general jurisdiction over Bristol-Myers—a concession that fol- lows directly from this Court's opinion in Daimler AG v. Bauman, 571 U. S. 117 (2014). As I have explained, I believe the restrictions the Court imposed on general jurisdiction in Daimler were ill advised. See BNSF R. Co. v. Tyrrell, 581 U. S. 402, 416–419 (2017) (Sotomayor, J., concurring

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If general jurisdiction is not appropriate, however, a state court can exercise only specifc, or case-linked, jurisdiction over a dispute. Id., at 923–924. Our cases have set out three conditions for the exercise of specifc jurisdiction over a nonresident defendant. 4A C. Wright, A. Miller, & A. Steinman, Federal Practice and Procedure § 1069, pp. 22–78 (4th ed. 2015) (Wright); see also id., at 22–27, n. 10 (collecting authority). First, the defendant must have “ `purposefully avail[ed] itself of the privilege of conducting activities within the forum State' ” or have purposefully directed its conduct into the forum State. J. McIntyre Machinery, Ltd. v. Nicas- tro, 564 U. S. 873, 877 (2011) (plurality opinion) (quoting Han- son v. Denckla, 357 U. S. 235, 253 (1958)). Second, the plain- tiff 's claim must “arise out of or relate to” the defendant's forum conduct. Helicopteros, 466 U. S., at 414. Finally, the exercise of jurisdiction must be reasonable under the circum- stances. Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102, 113–114 (1987); Burger King Corp. v. Rudzewicz, 471 U. S. 462, 477–478 (1985). The fac- tors relevant to such an analysis include “the burden on the defendant, the forum State's interest in adjudicating the dispute, the plaintiff 's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most effcient resolution of controversies, and the shared interest of the several States in furthering funda- mental substantive social policies.” Id., at 477 (internal quotation marks omitted).

Viewed through this framework, the California courts ap- propriately exercised specifc jurisdiction over respondents' claims.

in part and dissenting in part); Daimler, 571 U. S., at 149–160 (Soto- mayor, J., concurring in judgment). But I accept respondents' conces- sion, for the purpose of this case, that Bristol-Myers is not subject to general jurisdiction in California.

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First, there is no dispute that Bristol-Myers “purposefully avail[ed] itself,” Nicastro, 564 U. S., at 877, of California and its substantial pharmaceutical market. Bristol-Myers em- ploys over 400 people in California and maintains half a dozen facilities in the State engaged in research, develop- ment, and policymaking. Ante, at 258–259. It contracts with a California-based distributor, McKesson, whose sales account for a signifcant portion of its revenue. Supra, at 270. And it markets and sells its drugs, including Plavix, in California, resulting in total Plavix sales in that State of nearly $1 billion during the period relevant to this suit.

Second, respondents' claims “relate to” Bristol-Myers' in- state conduct. A claim “relates to” a defendant's forum con- duct if it has a “connect[ion] with” that conduct. Interna- tional Shoe, 326 U. S., at 319. So respondents could not, for instance, hale Bristol-Myers into court in California for neg- ligently maintaining the sidewalk outside its New York head- quarters—a claim that has no connection to acts Bristol- Myers took in California. But respondents' claims against Bristol-Myers look nothing like such a claim. Respondents' claims against Bristol-Myers concern conduct materially identical to acts the company took in California: its market- ing and distribution of Plavix, which it undertook on a nationwide basis in all 50 States. That respondents were allegedly injured by this nationwide course of conduct in Indiana, Oklahoma, and Texas, and not California, does not mean that their claims do not “relate to” the advertising and distribution efforts that Bristol-Myers undertook in that State. All of the plaintiffs—residents and nonresidents alike—allege that they were injured by the same essential acts. Our cases require no connection more direct than that. Finally, and importantly, there is no serious doubt that the exercise of jurisdiction over the nonresidents' claims is reasonable. Because Bristol-Myers already faces claims that are identical to the nonresidents' claims in this suit, it will not be harmed by having to defend against respondents'

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claims: Indeed, the alternative approach—litigating those claims in separate suits in as many as 34 different States— would prove far more burdensome. By contrast, the plain- tiffs' “interest in obtaining convenient and effective relief,” Burger King, 471 U. S., at 477 (internal quotation marks omitted), is obviously furthered by participating in a consoli- dated proceeding in one State under shared counsel, which allows them to minimize costs, share discovery, and maxi- mize recoveries on claims that may be too small to bring on their own. Cf. American Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 245 (2013) (Kagan., J., dissenting) (“No rational actor would bring a claim worth tens of thou- sands of dollars if doing so meant incurring costs in the hun- dreds of thousands”). California, too, has an interest in pro- viding a forum for mass actions like this one: Permitting the nonresidents to bring suit in California alongside the resi- dents facilitates the effcient adjudication of the residents' claims and allows it to regulate more effectively the conduct of both nonresident corporations like Bristol-Myers and resi- dent ones like McKesson.

Nothing in the Due Process Clause prohibits a California court from hearing respondents' claims—at least not in a case where they are joined to identical claims brought by California residents.

III

Bristol-Myers does not dispute that it has purposefully availed itself of California's markets, nor—remarkably—did it argue below that it would be “unreasonable” for a Califor- nia court to hear respondents' claims. See 1 Cal. 5th 783, 799, n. 2, 377 P. 3d 874, 885, n. 2 (2016). Instead, Bristol- Myers contends that respondents' claims do not “arise out of or relate to” its California conduct. The majority agrees, explaining that no “adequate link” exists “between the State and the nonresidents' claims,” ante, at 264—a result that it says follows from “settled principles [of] specifc jurisdic-

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tion,” ibid. But our precedents do not require this result, and common sense says that it cannot be correct.

The majority casts its decision today as compelled by prec-

edent. Ibid. But our cases point in the other direction.

The majority argues at length that the exercise of specifc jurisdiction in this case would confict with our decision in Walden v. Fiore, 571 U. S. 277 (2014). That is plainly not true. Walden concerned the requirement that a defendant “purposefully avai[l]” himself of a forum State or “purpose- fully direc[t]” his conduct toward that State, Nicastro, 564 U. S., at 877, 883 not the separate requirement that a plain- tiff 's claim “arise out of or relate to” a defendant's forum contacts. The lower court understood the case that way. See Fiore v. Walden, 688 F. 3d 558, 576–582 (CA9 2012). The parties understood the case that way. See Brief for Petitioner 17–31, Brief for Respondents 20–44, Brief for United States as Amicus Curiae 12–18, in Walden v. Fiore, O. T. 2013, No. 12–574. And courts and commentators have understood the case that way. See, e. g., 4 Wright § 1067.1, at 388–389. Walden teaches only that a defendant must have purposefully availed itself of the forum, and that a plaintiff cannot rely solely on a defendant's contacts with a forum resident to establish the necessary relationship. See 571 U. S., at 285 (“[T]he plaintiff cannot be the only link be- tween the defendant and the forum”). But that holding has nothing to do with the dispute between the parties: Bristol- Myers has purposefully availed itself of California—to the tune of millions of dollars in annual revenue. Only if its lan- guage is taken out of context, ante, at 265–266, can Walden be made to seem relevant to the case at hand.

By contrast, our decision in Keeton v. Hustler Magazine, Inc., 465 U. S. 770 (1984), suggests that there should be no such barrier to the exercise of jurisdiction here. In Keeton, a New York resident brought suit against an Ohio corpora-

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tion, a magazine, in New Hampshire for libel. She alleged that the magazine's nationwide course of conduct—its publi- cation of defamatory statements—had injured her in every State, including New Hampshire. This Court unanimously rejected the defendant's argument that it should not be sub- ject to “nationwide damages” when only a small portion of those damages arose in the forum State, id., at 781; exposure to such liability, the Court explained, was the consequence of having “continuously and deliberately exploited the New Hampshire market,” ibid. The majority today dismisses Keeton on the ground that the defendant there faced one plaintiff 's claim arising out of its nationwide course of conduct, whereas Bristol-Myers faces many more plaintiffs' claims. See ante, at 266. But this is a distinction without a difference: In either case, a defendant will face liability in a single State for a single course of conduct that has impact in many States. Keeton informs us that there is no unfair- ness in such a result.

The majority's animating concern, in the end, appears to be federalism: “[T]erritorial limitations on the power of the respective States,” we are informed, may—and today do— trump even concerns about fairness to the parties. Ante, at 263. Indeed, the majority appears to concede that this is not, at bottom, a case about fairness but instead a case about power: one in which “ `the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; . . . the forum State has a strong interest in applying its law to the controversy; [and] the forum State is the most convenient location for litigation' ” but personal jurisdiction still will not lie. Ibid. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 294 (1980)). But I see little reason to apply such a principle in a case brought against a large corporate defendant arising out of its nationwide conduct. What interest could any sin- gle State have in adjudicating respondents' claims that the other States do not share? I would measure jurisdiction

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frst and foremost by the yardstick set out in International Shoe—“fair play and substantial justice,” 326 U. S., at 316 (internal quotation marks omitted). The majority's opinion casts that settled principle aside.

I fear the consequences of the majority's decision today will be substantial. Even absent a rigid requirement that a defendant's in-state conduct must actually cause a plaintiff 's claim,3 the upshot of today's opinion is that plaintiffs cannot join their claims together and sue a defendant in a State in which only some of them have been injured. That rule is likely to have consequences far beyond this case.

First, and most prominently, the Court's opinion in this case will make it profoundly diffcult for plaintiffs who are injured in different States by a defendant's nationwide course of conduct to sue that defendant in a single, consoli- dated action. The holding of today's opinion is that such an action cannot be brought in a State in which only some plain- tiffs were injured. Not to worry, says the majority: The plaintiffs here could have sued Bristol-Myers in New York or Delaware; could “probably” have subdivided their separate claims into 34 lawsuits in the States in which they were in- jured; and might have been able to bring a single suit in federal court (an “open . . . question”). Ante, at 268–269. Even setting aside the majority's caveats, what is the pur-

3 Bristol-Myers urges such a rule upon us, Brief for Petitioner 14–37, but its adoption would have consequences far beyond those that follow from today's factbound opinion. Among other things, it might call into question whether even a plaintiff injured in a State by an item identical to those sold by a defendant in that State could avail himself of that State's courts to redress his injuries—a result specifcally contemplated by World- Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 297 (1980). See Brief for Civil Procedure Professors as Amici Curiae 14–18; see also J. McIn- tyre Machinery, Ltd. v. Nicastro, 564 U. S. 873, 906–907 (2011) (Ginsburg, J., dissenting). That question, and others like it, appears to await an- other case.

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pose of such limitations? What interests are served by pre- venting the consolidation of claims and limiting the forums in which they can be consolidated? The effect of the Court's opinion today is to eliminate nationwide mass actions in any State other than those in which a defendant is “ `essentially at home.' ” 4 See Daimler, 571 U. S., at 127. Such a rule hands one more tool to corporate defendants determined to prevent the aggregation of individual claims, and forces in- jured plaintiffs to bear the burden of bringing suit in what will often be farfung jurisdictions.

Second, the Court's opinion today may make it impossible to bring certain mass actions at all. After this case, it is diffcult to imagine where it might be possible to bring a nationwide mass action against two or more defendants headquartered and incorporated in different States. There will be no State where both defendants are “at home,” and so no State in which the suit can proceed. What about a nationwide mass action brought against a defendant not headquartered or incorporated in the United States? Such a defendant is not “at home” in any State. Cf. id., at 158– 159 (Sotomayor, J., concurring in judgment). Especially in a world in which defendants are subject to general jurisdic- tion in only a handful of States, see ibid., the effect of today's opinion will be to curtail—and in some cases eliminate— plaintiffs' ability to hold corporations fully accountable for their nationwide conduct.

The majority chides respondents for conjuring a “parade of horribles,” ante, at 268, but says nothing about how suits

4 The Court today does not confront the question whether its opinion here would also apply to a class action in which a plaintiff injured in the forum State seeks to represent a nationwide class of plaintiffs, not all of whom were injured there. Cf. Devlin v. Scardelletti, 536 U. S. 1, 9–10 (2002) (“Nonnamed class members . . . may be parties for some purposes and not for others”); see also Wood, Adjudicatory Jurisdiction and Class Actions, 62 Ind. L. J. 597, 616–617 (1987).

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like those described here will survive its opinion in this case. The answer is simple: They will not.

It “does not offend `traditional notions of fair play and sub- stantial justice,' ” International Shoe, 326 U. S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured. But that is exactly what the Court holds today is barred by the Due Process Clause.

This is not a rule the Constitution has required before. I

respectfully dissent.

280

OCTOBER TERM, 2016

Syllabus

JENKINS, WARDEN v. HUTTON

on petition for writ of certiorari to the united states court of appeals for the sixth circuit

No. 16–1116. Decided June 19, 2017

An Ohio jury convicted respondent Percy Hutton of aggravated murder, attempted murder, and kidnaping. In connection with the aggravated murder conviction, the jury also made two additional fndings: that Hut- ton engaged in a course of conduct designed to kill multiple people and that he committed kidnaping. Based on these aggravating factors, the State sought the death penalty. At the conclusion of the penalty phase of the trial, the trial court instructed the jury that it could recommend a death sentence only if it unanimously found that the State had proved beyond a reasonable doubt that the aggravating circumstances out- weighed the mitigating factors. The jury recommended death, and the trial court accepted that recommendation. The Ohio Court of Appeals and the Ohio Supreme Court affrmed. Hutton then sought federal ha- beas relief, arguing that the trial court gave the jurors insuffcient guid- ance by failing to instruct them that, when weighing aggravating and mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase. The District Court determined that Hutton's claim was procedurally defaulted because he failed to ob- ject to the trial court's instruction or to raise the argument on direct appeal. The Sixth Circuit reversed, concluding that notwithstanding the procedural default, Hutton had “show[n] by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found [him] eligible for the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U. S. 333, 336.

Held: The Sixth Circuit was wrong to reach the merits of Hutton's claim. First, the jury found two aggravating circumstances during the guilt phase of the trial, each of which rendered Hutton death penalty eligible. The penalty phase instruction plainly had no effect on the jury's decision that those aggravating circumstances were present when Hutton com- mitted the murder for which he was convicted. Second, assuming that the consequences of the trial court's alleged error excuses Hutton's pro- cedural default, the Sixth Circuit should have asked whether, given proper instructions about the two aggravating circumstances, a reason- able jury could have decided that those aggravating circumstances out- weighed the mitigating ones. Instead, the court considered whether, given the (alleged) improper instructions, the jury might have relied on

Cite as: 582 U. S. 280 (2017)

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Per Curiam

invalid aggravating circumstances when it recommended a death sen- tence. That approach, which would justify excusing default whenever an instructional error could have been relevant to a jury's decision, is incompatible with Sawyer.

Certiorari granted; 839 F. 3d 486, reversed and remanded.

Per Curiam. Respondent Percy Hutton accused two friends, Derek Mitchell and Samuel Simmons, Jr., of stealing a sewing ma- chine, in which he had hidden $750. Mitchell and Simmons denied the accusation, but Hutton remained suspicious. On the night of September 16, 1985, he lured the pair into his car and, after pointing a gun at each, drove them around town in search of the machine. By night's end, Hutton had recovered his sewing machine, Simmons was in the hospital with two gunshot wounds to the head, and Mitchell was no- where to be found. Simmons survived, but Mitchell was found dead a few weeks later, also having been shot twice. More than 30 years ago, an Ohio jury convicted Hutton of aggravated murder, attempted murder, and kidnaping. In connection with the aggravated murder conviction, the jury made two additional fndings: that Hutton engaged in “a course of conduct involving the . . . attempt to kill two or more persons,” and that Hutton murdered Mitchell while “committing, attempting to commit, or feeing immediately after . . . kidnapping,” Ohio Rev. Code Ann. §§ 2929.04(A)(5), (7) (Lexis 1982). Because of these “aggravating circum- stances,” Ohio law required that Hutton be sentenced to “death, life imprisonment without parole, [or] life imprison- ment with parole eligibility after” no fewer than 20 years in prison. § 2929.03(C)(2).

Several days after rendering its verdict, the jury recon- vened for the penalty phase of the trial. The State argued for the death penalty. In opposition, Hutton gave an un- sworn statement professing his innocence and presented evidence about his background and psychological profle. When the presentations concluded, the trial court instructed

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the jury that it could recommend a death sentence only if it unanimously found that the State had “prove[d] beyond a reasonable doubt that the aggravating circumstances, of which the Defendant was found guilty, outweigh[ed] the [mit- igating factors].” State v. Hutton, 100 Ohio St. 3d 176, 184– 185, 2003-Ohio-5607, 797 N. E. 2d 948, 958; see Ohio Rev. Code Ann. § 2929.03(D)(2). The jury deliberated and recom- mended death. The trial court accepted the recommenda- tion after also fnding, “beyond a reasonable doubt, . . . that the aggravating circumstances . . . outweigh[ed] the mitigat- ing factors.” § 2929.03(D)(3).

The Ohio Court of Appeals and the Ohio Supreme Court affrmed Hutton's death sentence. In doing so, both con- cluded that “the evidence support[ed] the fnding of the aggravating circumstances.” § 2929.05(A); see Hutton, 100 Ohio St. 3d, at 187, 797 N. E. 2d, at 961; State v. Hutton, 72 Ohio App. 3d 348, 350, 594 N. E. 2d 692, 694 (1995). The courts also “independently weigh[ed] all of the facts . . . to determine whether the aggravating circumstances [Hutton] was found guilty of committing outweigh[ed] the mitigating factors.” Ohio Rev. Code Ann. § 2929.05(A). Both agreed with the jury and the trial court that “aggravating circum- stances outweigh[ed] the mitigating factors,” and that a death sentence was warranted. Hutton, 100 Ohio St. 3d, at 191, 797 N. E. 2d, at 963–964; see Hutton, 72 Ohio App. 3d, at 352, 594 N. E. 2d, at 695.

The case before this Court concerns Hutton's subsequent petition for federal habeas relief. In 2005, Hutton fled such a petition pursuant to 28 U. S. C. § 2254, arguing that the trial court violated his due process rights during the penalty phase of his trial. According to Hutton, the court gave the jurors insuffcient guidance because it failed to tell them that, when weighing aggravating and mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase. Hutton, however, had not ob- jected to the trial court's instruction or raised this argument

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on direct appeal, and the District Court on federal habeas concluded that his due process claim was procedurally de- faulted. Hutton v. Mitchell, 2013 WL 2476333, *64 (ND Ohio, June 7, 2013); see State v. Hutton, 53 Ohio St. 3d 36, 39–40, n. 1, 559 N. E. 2d 432, 437–438, n. 1 (1990) (declining to address trial court's instructions because Hutton “specifcally declined to object . . . at trial, and ha[d] not raised or briefed the issue” on appeal).

The United States Court of Appeals for the Sixth Circuit reversed. The court concluded that, notwithstanding the procedural default, it could “reach the merits” of Hutton's claim to “avoid a fundamental miscarriage of justice.” Hut- ton v. Mitchell, 839 F. 3d 486, 498 (2016) (internal quotation marks omitted). The Sixth Circuit began its analysis with Sawyer v. Whitley, 505 U. S. 333 (1992). In that decision, this Court established that a habeas petitioner may obtain review of a defaulted claim upon “show[ing] by clear and con- vincing evidence that, but for a constitutional error, no rea- sonable juror would have found [him] eligible for the death penalty under the applicable state law.” Id., at 336.

Hutton had not argued that this exception to default ap- plied to his case. Nonetheless, the Sixth Circuit held that the exception justifed reviewing his claim. The court gave two reasons: First, Hutton was not eligible to receive a death sentence because “the jury had not made the necessary fnd- ing of the existence of aggravating circumstances.” 839 F. 3d, at 498–499. And second, since the trial court “gave the jury no guidance as to what to consider as aggravating circumstances” when weighing aggravating and mitigating factors, the record did not show that the jury's death recom- mendation “was actually based on a review of any valid ag- gravating circumstances.” Id., at 500. On the merits, the court concluded that the trial court violated Hutton's consti- tutional rights by giving an erroneous jury instruction. Judge Rogers dissented on the ground that Hutton could not overcome the procedural default.

284

JENKINS v. HUTTON

Per Curiam

The Sixth Circuit was wrong to reach the merits of Hut- ton's claim. The court's frst reason for excusing default was that “the jury had not [found] the existence of aggravating circumstances.” Id., at 498–499. But it had, at the guilt phase of Hutton's trial. As Judge Rogers pointed out, “the jury found two such factors”—engaging in a course of con- duct designed to kill multiple people and committing kidnap- ing—“in the process of convicting Hutton . . . of aggravated murder.” Id., at 511. Each of those fndings “rendered Hutton eligible for the death penalty.” Ibid. Hutton has not argued that the trial court improperly instructed the jury about aggravating circumstances at the guilt phase. Nor did the Sixth Circuit identify any such error. Instead, the instruction that Hutton contends is incorrect, and that the Sixth Circuit analyzed, was given at the penalty phase of trial. That penalty phase instruction plainly had no effect on the jury's decision—delivered after the guilt phase and pursuant to an unchallenged instruction—that aggravating circumstances were present when Hutton murdered Mitchell. The Sixth Circuit's second reason for reaching the merits rests on a legal error. Under Sawyer, a court may review a procedurally defaulted claim if, “but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty.” 505 U. S., at 336 (emphasis added). Here, the alleged error was the trial court's failure to specify that, when weighing aggravating and mitigating factors, the jury could consider only the aggravating circum- stances it found at the guilt phase. Assuming such an error can provide a basis for excusing default, the Sixth Circuit should have considered the following: Whether, given proper instructions about the two aggravating circumstances, a rea- sonable jury could have decided that those aggravating cir- cumstances outweighed the mitigating circumstances.

But the court did not ask that question. Instead, it con- sidered whether, given the (alleged) improper instructions, the jury might have been relying on invalid aggravating cir-

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cumstances when it recommended a death sentence. See 839 F. 3d, at 500 (explaining that, because the trial court gave “no guidance as to what to consider as aggravating circum- stances,” the court could not determine whether the death recommendation “was actually based on a review of any valid aggravating circumstances”). The court, in other words, considered whether the alleged error might have affected the jury's verdict, not whether a properly instructed jury could have recommended death. That approach, which would justify excusing default whenever an instructional error could have been relevant to a jury's decision, is incom- patible with Sawyer.

Neither Hutton nor the Sixth Circuit has “show[n] by clear and convincing evidence that”—if properly instructed—“no reasonable juror would have” concluded that the aggravating circumstances in Hutton's case outweigh the mitigating cir- cumstances. Sawyer, supra, at 336. In fact, the trial court, Ohio Court of Appeals, and Ohio Supreme Court each inde- pendently weighed those factors and concluded that the death penalty was justifed. On the facts of this case, the Sixth Circuit was wrong to hold that it could review Hutton's claim under the miscarriage of justice exception to proce- dural default.

The petition for certiorari and motion for leave to proceed in forma pauperis are granted, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.