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" ... The Supreme Court also considered whether trademarks constitute “commercial speech,” which the government may undoubtedly regulate to protect the public from false and deceptive advertisements and from those proposing illegal activities. Unlike government speech, laws regulating commercial speech are subject to a lower level of judicial review known as “intermediate scrutiny,” which requires the law to be “substantially related” to an “important actual purpose.” Without even answering the question of whether trademarks constitute commercial speech, the Supreme Court found that the disparagement clause could not withstand even this lower threshold since the clause’s overbreadth impermissibly prohibits more conduct than just those instances it’s supposedly designed to combat: (1) hateful speech and (2) disruptions of commerce. In Justice Alito’s words, because the disparagement clause operates like a “happy-talk clause,” it goes too far and endangers freedom of expression entirely. ... "