mid-level gender discrimination test

Respondents operate a medical clinic in Melbourne, Florida, that offers abortions among other services. The clinic is located on Dixie Highway, a major traffic artery in the city. The clinic property occupies less than one acre and is bounded on the north and south by other commercial property, on the west by a two-lane road, and on the east by a parking lot and an intersecting street. In September 1992, a group of antiabortion protesters began picketing the clinic. The protesters, whose number varied from 10 to 40 on any given day, engaged in a variety of activities near the clinic. They sang, chanted, and carried signs and banners. They also distributed literature to, and engaged in conversations with, people approaching the clinic. Although the protesters were generally nonviolent, they occasionally trespassed onto clinic property and blocked access to the clinic. They also picketed the nearby residences of some of the clinic's employees. In response to these activities, the clinic obtained an injunction from the Florida Circuit Court. The initial injunction prohibited trespassing on or entering clinic property, blocking or interfering with access to or egress from the clinic, physically or verbally abusing persons entering or leaving the clinic, making loud or raucous noise within earshot of the clinic during specified hours, physically approaching any person seeking clinic services within 300 feet unless the person indicates a desire to communicate, using any images observable by patients inside the clinic, and picketing or demonstrating within 300 feet of clinic employees' residences. After the initial injunction proved insufficient, protesters continued to impede access to the clinic by congregating on the paved portion of Dixie Way and marching in front of the clinic's driveways. Sidewalk counselors approached vehicles heading toward the clinic. The number of people congregating varied from a handful to 400, and the noise varied from singing and chanting to the use of loudspeakers and bullhorns. The trial court issued a broader amended injunction that established a 36-foot buffer zone around the clinic entrances and driveway, noise restrictions during surgical procedures and recovery periods, a 300-foot no-approach zone around the clinic, a 300-foot buffer zone around employees' residences, and an in concert provision. The Florida Supreme Court upheld the amended injunction. The Supreme Court granted certiorari to resolve the conflict between the Florida Supreme Court and the Court of Appeals.

Simon Tam serves as the lead singer of the rock group The Slants, whose members are Asian-Americans. He chose the name in an effort to reclaim the term and drain its denigrating force as a derogatory reference to Asian persons. The group has incorporated childhood slurs into its lyrics and titled albums including The Yellow Album and Slanted Eyes, Slanted Hearts. Tam filed an application with the Patent and Trademark Office seeking registration of THE SLANTS as a trademark. The PTO examining attorney rejected the application after applying a two-part analysis and concluding that a substantial composite of persons of Asian descent would find the mark offensive. The attorney cited dictionary definitions labeling the term as derogatory and evidence that the band's name had prompted cancellation of a performance along with negative comments from online readers. Tam appealed the denial first to the examining attorney and then to the Trademark Trial and Appeal Board, which upheld the refusal. Tam then brought the case before the Federal Circuit. Sitting en banc, that court reversed the Board. The Government petitioned for certiorari, and the Supreme Court granted review.