Opinion

PARAS, J.

The People appeal a habeas corpus order discharging Chol Soo Lee (hereinafter defendant) from custody imposed pursuant to a murder conviction. (Pen. Code, § 1506.) We affirm.

*617 I

Defendant was convicted on July 10, 1974, of first degree murder with the use of a firearm. The case was tried in Sacramento after a change of venue from San Francisco. The prosecution relied on two eyewitnesses who observed the shooting on a Chinatown street corner on June 3, 1973, and identified defendant as the assailant; also on a third witness who saw defendant fleeing the scene just after the shooting. The conviction was affirmed in an unpublished opinion by this court in April 1975 (3 Crim. 7711); there was no petition for hearing in the Supreme Court. Defendant was sentenced to life imprisonment, and prison terms were also imposed for parole violation on an earlier grand theft from the person conviction and a subsequent conviction of possession of a concealable firearm by a felon. Deuel Vocational Institute at Tracy, California, was the place of confinement.

On October 8, 1977, defendant was charged in San Joaquin County Superior Court with first degree murder in connection with a homicide at the institute, and the 1974 murder conviction was alleged as a special circumstance. (Pen. Code, § 190.2.) In the course of examining discovery files regarding the 1974 conviction, the 1977 defense attorneys learned of an all points bulletin and a San Francisco Police Department interdepartmental memorandum, neither of which had been given to defense counsel in 1974.

A petition for writ of habeas corpus was filed in San Joaquin County on July 17, 1978, alleging inter alia that defendant was denied a fair trial by the prosecution’s suppression of material evidence. The San Joaquin court transferred the matter to Sacramento Superior Court. An order to show cause issued from the latter on October 20, 1978, and a series of hearings was held, beginning on October 27. During the course of the hearings, defense investigators used the information contained in the memorandum, the bulletin, and other documents to locate one Steven Morris, who reported to them that he had witnessed the shooting and defendant was not the attacker. He so testified at the habeas corpus hearing and added emphatically that he had advised the San Francisco police by a phone call the day after the killing that he was an eyewitness. The phone call to the police was confirmed by a note made by Officer Gus Coreris summarizing the call’s contents (Coreris answered the phone), which he relayed to Officer Falzon, an investigator on the case. The note indicates Morris was not an eyewitness. Coreris testi *618 fied at the habeas corpus hearing that he had no present recollection of the conversation but that it was his custom to take notes of information given by callers and transmit such notes to the appropriate investigators. He would record and immediately follow up eyewitness accounts. Falzon testified he did not understand from the Coreris notes or from his own later conversation with Morris that Morris was an eyewitness to the shooting.

At the conclusion of the habeas corpus hearings, the trial court found that Morris had in fact told Coreris he was an eyewitness and that this crucial information was withheld from the defense to its prejudice. 1

II

The People contend Morris’ testimony was inherently improbable and unworthy of belief, thus the trial court erred in finding that there was suppression of material evidence. They also claim the court erred in admitting hearsay evidence which tended to corroborate Morris’ testimony (testimony by a friend that Morris talked to her the day after the shooting and told her he had seen the murder and had called the police) and that the order of discharge is deficient. 2

In support of the inherent improbability claim, the People point to a number of serious discrepancies between Morris’ version of the shooting and more credible testimony given at the 1974 trial. More to the point, the People note irreconcilable inconsistencies between Morris’ testimony and the irrefragable physical evidence of the victim’s clothing, irremediable internal conflicts in Morris’ description of the assailant’s clothing and his phone calls with the police, and the testimony of two of Morris’ Chinatown dinner companions who were with him at the time he asserts he witnessed the shooting, yet themselves saw no shooting and heard no shots.

We are not unimpressed with the inherent improbability argument, despite the heavy burden it carries (People v. Thornton (1974) *619 11 Cal.3d 738, 754 [114 Cal.Rptr. 467, 523 P.2d 267]); however we find it of no avail to the People even if we were to accept and adopt it. Irrespective of whether the testimony of Morris as to what he saw on June 3, 1973, is or is not inherently improbable, the issue here is whether his testimony that he told Coreris he was an eyewitness is inherently improbable. It is that evidence that the trial judge believed, and the only evidence he had to believe to justify his ruling. As to it, there was nothing inherently improbable. Granting any inherent improbability of Morris’ substantive testimony, defendant’s defense lawyers were still entitled to know of it so they could judge that matter for themselves. That very simply was the trial judge’s ruling, premised on the finding that Morris informed Coreris of what he purportedly had seen.

The People of course reason that from inherent improbability of the substantive testimony, falsity of an asserted statement to the police must follow. This is not so, for in that regard the test is purely one of substantial evidence. If in the face of the many contraindications the trial judge chose to believe that Morris told the police he saw the shooting, we can do nothing about it. (In re Guiterrez (1954) 122 Cal.App.2d 661, 664 [265 P.2d 16].)

Since no timely objection was made (People v. Gardner (1976) 56 Cal.App.3d 91, 102 [128 Cal.Rptr. 101]), the People’s contention that the court erred by admitting hearsay evidence supporting Morris’ testimony must fail. It is a well-established rule that questions of admissibility of evidence will not be reviewed on appeal absent timely objection at trial, specifying the grounds. (People v. Welch (1972) 8 Cal.3d 106, 114-115 [104 Cal.Rptr. 217, 501 P.2d 225].)

The contention that the writ is deficient because it does not explicitly reverse defendant’s conviction is without merit. It correctly ordered the superintendent at Deuel to “discharge [defendant] from custody pursuant to his conviction of Murder in the First Degree under Superior Court of Sacramento County, Case No. 44362.... ” (Pen. Code, §§ 1485, 1487.) We perceive no double jeopardy problem. Defendant’s brief accurately addresses the issue thus: “The State also surmises that since the order below does not specify that Lee’s conviction has been set aside, he might argue on retrial that the order did not reverse his conviction and therefore the double „ jeopardy clause prohibits his *620 retrial.... That... is frivolous, for the public records in this case clearly demonstrate that the order was based on the setting aside of his conviction; there was no other ground asserted or available for discharge.”

The judgment is affirmed.

Regan, Acting P. J., and Reynoso, J., concurred.

A petition for a rehearing was denied April 14, 1980, and the opinion was modified to read as printed above.

The Patent and Trademark Office (PTO) denied the application 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 provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

I

A

"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., 575 U.S. ----, ----, 135 S.Ct. 1293, 1299, 191 L.Ed.2d 222 (2015) ; see also Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 212, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000). A trademark "designate [s] the goods as the product of a particular trader" and "protect[s] his good will against the sale of another's product as his." United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 63 L.Ed. 141 (1918) ; see also Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 412-413, 36 S.Ct. 357, 60 L.Ed. 713 (1916). It helps consumers identify goods and services that they wish to purchase, as well as those they want to avoid. See Wal-Mart Stores, supra, at 212-213, 120 S.Ct. 1339 ; Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 198, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985).

"[F]ederal law does not create trademarks." B & B Hardware, supra, at ----, 135 S.Ct., at 1299. 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, 25 L.Ed. 550 (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, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (Stevens, J., concurring in judgment); id ., at 785, 112 S.Ct. 2753 (THOMAS, J., concurring in judgment). Eventually, Congress stepped in to provide *1752a degree of national uniformity, passing the first 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 Lanham Act, enacted in 1946. See Act of July 5, 1946, ch. 540, 60 Stat. 427. By that time, trademark had expanded far beyond 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 commerce" may be placed on the "principal register," that is, 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 registrable 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 two million marks that have active federal certificates of registration. PTO Performance and Accountability Report, Fiscal Year 2016, p. 192 (Table 15), https://www.uspto.gov/sites/default/files/ documents/USPTOFY16PAR.pdf (all Internet materials as last visited June 16, 2017). This system of federal registration helps to ensure that trademarks are fully protected and supports the free flow of commerce. "[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 benefits of good reputation." San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 531, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987) (internal quotation marks omitted); see also Park 'N Fly, Inc., supra, at 198, 105 S.Ct. 658 ("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").

B

Without federal registration, a valid trademark may still be used in commerce. See 3 McCarthy § 19:8. And an unregistered trademark can be enforced against would-be infringers in several ways. Most important, even if a trademark 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, 112 S.Ct. 2753 ("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 unregistered trademarks" (internal quotation marks and citation omitted)).1 Unregistered trademarks may also be entitled to protection under other federal statutes, such as the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d). See *17535 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 registration 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 common law or state registration" and "[i]n the vast majority of situations, federal and state trademark law peacefully coexist"); id., § 22:1 (discussing state trademark registration systems).

Federal registration, however, "confers important legal rights and benefits on trademark owners who register their marks." B & B Hardware, 575 U.S., at ----, 135 S.Ct., at 1317 (internal quotation 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 ownership 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 specified in the certificate,' " B & B Hardware, 575 U.S. at ----, 135 S.Ct., at 1300 (quoting § 1057(b) ); and (3) can make a mark " 'incontestable' " once a mark has been registered for five years," ibid . (quoting §§ 1065, 1115(b) ); see Park 'N Fly, 469 U.S., at 193, 105 S.Ct. 658. 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.

C

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 symbols, 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 examiner at the PTO generally applies a "two-part test." The examiner first considers "the likely meaning of the matter in question, taking into account not only dictionary definitions, 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 connection with the goods or services." Trademark Manual of Examining Procedure § 1203.03(b)(i) (Apr. 2017), p. 1200-150, http://tmep.uspto.gov. "If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols," the examiner moves to the second step, asking "whether that meaning may *1754be disparaging to a substantial composite3 of the referenced group." Ibid. If the examiner finds that a "substantial composite, although not necessarily a majority, of the referenced group would find 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 specified 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 find the term objectionable." Ibid.

D

Simon Tam is the lead singer of "The Slants." In re Tam, 808 F.3d 1321, 1331 (C.A.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, Slanted 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 finding that "there is ... a substantial composite of persons who find the term in the applied-for mark offensive." Id., at 30. The examining attorney relied in part on the fact that "numerous dictionaries define 'slants' or 'slant-eyes' as a derogatory or offensive term." Id., at 29. The examining attorney also relied on a finding that "the band's name has been found offensive numerous times"-citing 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 find the term and the applied-for mark offensive." Id., at 29-30.

Tam contested the denial of registration before the examining 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 unconstitutional under the First Amendment's Free Speech Clause. The majority found that the clause engages in viewpoint-based discrimination, that the clause regulates the expressive 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 argument 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 disparagement clause were analyzed under this Court's commercial speech cases, the clause would fail the "intermediate scrutiny" 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 argued that trademark registration is a government subsidy and that the disparagement clause is facially constitutional, *1755but 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-Americans. See id., at 1363-1374. In dissent, Judge Lourie agreed with Judge Dyk that the clause is facially constitutional 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 trademarks are commercial speech and that the disparagement clause survives intermediate scrutiny because it "directly advances the government's substantial interest in the orderly flow of commerce." See id., at 1376-1382.

The Government filed 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. ----, 137 S.Ct. 30, 195 L.Ed.2d 902 (2016).

II

Before reaching the question whether the disparagement clause violates the First Amendment, we consider Tam's argument that the clause does not reach marks that disparage racial or ethnic groups. The clause prohibits the registration of marks that disparage "persons," and Tam claims that the term "persons" "includes only natural and juristic persons," 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 Responding to Petition for Certiorari, 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, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) ; Freytag v. Commissioner, 501 U.S. 868, 894-895, 111 S.Ct. 2631, 115 L.Ed.2d 764 (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 interpretation would resolve this case and leave the First Amendment question for another day. See Reply Brief 9. "[W]e have often stressed" that it is "importan[t] [to] avoid[d] the premature adjudication of constitutional questions," Clinton v. Jones, 520 U.S. 681, 690, 117 S.Ct. 1636, 137 L.Ed.2d 945 (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, 65 S.Ct. 152, 89 L.Ed. 101 (1944). See also Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945) ; Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905). We thus begin by explaining why Tam's argument about the definition of "persons" in the Lanham Act is meritless.

As noted, the disparagement clause prohibits the registration of trademarks "which may disparage ... persons, living or dead." 15 U.S.C. § 1052(a). Tam points to a definition 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 benefit 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, *1756Tam asserts, these groups fall outside this definition. Brief for Respondent 46-48.

Tam's argument is refuted by the plain terms of the disparagement clause. The clause applies to marks that disparage "persons." A mark that disparages a "substantial" percentage 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 argument would fail even if the clause used the singular term "person," but Congress' use of the plural "persons" makes the point doubly clear.4

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 "institutions," and on Tam's reading, it also reaches "juristic" persons 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 Congress had wanted to confine 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) (emphasis 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 Americans. 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, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (internal quotation marks omitted). Here, it is clear that the prohibition against registering trademarks "which may disparage ... persons," § 1052(a), prohibits registration of terms that disparage persons who share a common race or ethnicity.

Even if resort to legislative history and early enforcement practice were appropriate, we would find Tam's arguments unconvincing. Tam has not brought to our attention any evidence 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 disparagement clause is unenlightening. The admitted vagueness of the disparagement test5 and the huge *1757volume 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. Specifically, the Government contends (1) that trademarks are government speech, not private speech, (2) that trademarks are a form of government subsidy, 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.

A

The First Amendment prohibits Congress and other government 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 ability 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, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) ; see Johanns v. Livestock Marketing Assn ., 544 U.S. 550, 553, 125 S.Ct. 2055, 161 L.Ed.2d 896 (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, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000).

As we have said, "it is not easy to imagine how government could function" if it were subject to the restrictions that the First Amendment imposes on private speech. Summum, supra, at 468, 129 S.Ct. 1125 ; see Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ----, ---- - ----, 135 S.Ct. 2239, 2245-2247, 192 L.Ed.2d 274 (2015). " '[T]he First Amendment forbids the government to regulate 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, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), but imposing 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 particular viewpoint and rejects others. The Free Speech Clause does not require government to maintain viewpoint neutrality when its officers and employees speak about that venture.

*1758Here is a simple example. During the Second World War, the Federal Government produced and distributed millions of posters to promote the war effort.7 There were posters urging enlistment, the purchase of war bonds, and the conservation 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 dangerous misuse. If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle 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 registered 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 Government 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 finds that a mark is eligible for placement on the principal register, that decision is not reviewed by any higher official unless the registration is challenged. See §§ 1062(a), 1071; 37 C.F.R § 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 initiates proceedings based on certain grounds. See 15 U.S.C. §§ 1058(a), 1059, 1064 ; 37 C.F.R. §§ 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 government speech, the Federal Government is babbling prodigiously 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 unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public.

*1759For 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),11 "Just do it" (Nike),12 or "Have it your way" (Burger King)13 ? Was the Government warning about a coming disaster when it registered the mark "EndTime Ministries"14 ?

The PTO has made it clear that registration does not constitute approval of a mark. See In re Old Glory Condom Corp ., 26 USPQ 2d 1216, 1220, n. 3 (T.T.A.B.1993) ("[I]ssuance of a trademark registration ... is not a government imprimatur"). And it is unlikely that more than a tiny fraction of the public has any idea what federal registration of a trademark 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 supports the idea that registered trademarks are government speech. In Johanns, we considered advertisements promoting 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, 125 S.Ct. 2055 (quoting 7 U.S.C. § 2902(13) ). Congress and the Secretary of Agriculture provided guidelines for the content of the ads, Department of Agriculture officials attended the meetings at which the content of specific ads was discussed, and the Secretary could edit or reject any proposed ad. 544 U.S., at 561, 125 S.Ct. 2055. 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, 125 S.Ct. 2055. The Government'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 afield. A small city park contained 15 monuments. 555 U.S., at 464, 129 S.Ct. 1125. Eleven had been donated by private groups, and one of these displayed the Ten Commandments. Id., at 464-465, 129 S.Ct. 1125. A religious group claimed that the city, by accepting donated monuments, 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 government 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 displaying donated monuments; parks would be overrun if they were obligated to accept all monuments offered by private groups; "[p]ublic parks are often closely identified in the public mind with the government unit that owns the land"; and "[t]he monuments that are accepted ... are meant to *1760convey and have the effect of conveying a government message." Id., at 472, 129 S.Ct. 1125.

Trademarks share none of these characteristics. Trademarks have not traditionally been used to convey a Government 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 messages on Texas specialty license plates are government speech, the Walker Court cited three factors distilled from Summum . 576 U.S., at ---- - ----, 135 S.Ct., at 2246-2247. First, license plates have long been used by the States to convey state messages. Id., at ---- - ----, 135 S.Ct., at 2248-2249. Second, license plates "are often closely identified in the public mind" with the State, since they are manufactured and owned by the State, generally designed by the State, and serve as a form of "government ID." Id., at ----, 135 S.Ct., at 2249 (internal quotation marks omitted). Third, Texas "maintain[ed] direct control over the messages conveyed on its specialty plates." Id., at ----, 135 S.Ct., at 2249. As explained above, none of these factors are present in this case.

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 easily be characterized in the same way.

Perhaps the most worrisome implication of the Government's argument concerns the system of copyright registration. 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 (explaining that if trademark registration amounts to government speech, "then copyright registration" which "has identical 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, 123 S.Ct. 769, 154 L.Ed.2d 683 (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 conveyed in just a few words.

Trademarks are private, not government, speech.

B

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 implicate a notoriously tricky question of constitutional law. "[W]e have held that the Government 'may not deny a benefit to a *1761person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit.' " Agency for Int'l Development v. Alliance for Open Society Int'l, Inc ., 570 U.S. ----, ----, 133 S.Ct. 2321, 2328, 186 L.Ed.2d 398 (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. Ibid. Determining which of these principles applies in a particular case "is not always self-evident," id., at ----, 133 S.Ct., at 2330, but no difficult question is presented here.

Unlike the present case, the decisions on which the Government relies all involved cash subsidies or their equivalent. In Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), a federal law provided funds to private parties for family planning services. In National Endowment for Arts v. Finley, 524 U.S. 569, 118 S.Ct. 2168, 141 L.Ed.2d 500 (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, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003). In other cases, we have regarded tax benefits as comparable to cash subsidies. See Regan v. Taxation With Representation of Wash., 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) ; Cammarano v. United States, 358 U.S. 498, 79 S.Ct. 524, 3 L.Ed.2d 462 (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 filing fee of $225-$600. 37 C.F.R. § 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 registration, 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 supported the registration system for the past 27 years. 808 F.3d, at 1353.

The Government responds that registration provides valuable non-monetary benefits that "are directly traceable to the resources devoted by the federal government to examining, publishing, and issuing certificates of registration for those marks." Brief for Petitioner 27. But just about every government service requires the expenditure of government funds. This is true of services that benefit everyone, like police and fire 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 registration scheme. For example, the Federal Government registers copyrights and patents. State governments and their subdivisions register the title to real property and security interests; they issue driver's licenses, motor vehicle registrations, and hunting, fishing, and boating licenses or permits.

Cases like Rust and Finley are not instructive in analyzing the constitutionality of restrictions on speech imposed in connection with such services.

C

Finally, the Government urges us to sustain the disparagement clause under a new doctrine that would apply to "government-program" cases. For the most part, this argument 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 consists of two *1762cases 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, 127 S.Ct. 2372, 168 L.Ed.2d 71 (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 affirmatively consented, the law did not allow the employer to collect the portion of union dues that would be used in election activities. Id., at 180-182, 127 S.Ct. 2372. A public employee union argued that this law unconstitutionally restricted its speech based on its content; that is, the law permitted 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, 127 S.Ct. 2372. Upholding this law, we characterized it as imposing a "modest limitation" on an "extraordinary benefit," namely, taking money from the wages of non-union members and turning it over to the union free of charge. Id., at 184, 127 S.Ct. 2372. Refusing to confer an even greater benefit, we held, did not upset the marketplace of ideas and did not abridge the union's free speech rights. Id., at 189-190, 127 S.Ct. 2372.

Ysursa v. Pocatello Ed. Assn., 555 U.S. 353, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009), is similar. 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, 129 S.Ct. 1093. We reasoned that the "the government ... [was] not required to assist others in funding the expression of particular ideas." Id., at 358, 129 S.Ct. 1093 ; see also id., at 355, 129 S.Ct. 1093 ("The First Amendment ... does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression").

Davenport and Ysursa are akin to our subsidy cases. Although the laws at issue in Davenport and Ysursa did not provide cash subsidies to the unions, they conferred a very valuable benefit-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 benefit because it was thought that this arrangement served important government interests. See Abood v. Detroit Bd. of Ed., 431 U.S. 209, 224-226, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). But the challenged laws did not go further and provide convenient collection mechanisms for money to be used in political activities. In essence, the Washington and Idaho lawmakers chose to confer a substantial non-cash benefit for the purpose of furthering activities that they particularly desired to promote but not to provide a similar benefit for the purpose of furthering other activities. Thus, Davenport and Ysursa are no more relevant for present purposes than the subsidy cases previously discussed.15

*1763Potentially 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, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) ; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 831, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ; Lamb's Chapel, 508 U.S., at 392-393, 113 S.Ct. 2141. See also Legal Services Corporation v. Velazquez, 531 U.S. 533, 541-544, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001). When government creates such a forum, in either a literal or "metaphysical" sense, see Rosenberger, 515 U.S., at 830, 115 S.Ct. 2510 some content- and speaker-based restrictions may be allowed, see id ., at 830-831, 115 S.Ct. 2510. However, even in such cases, what we have termed "viewpoint discrimination" is forbidden. Id., at 831, 115 S.Ct. 2510.

Our cases use the term "viewpoint" discrimination in a broad sense, see ibid., and in that sense, the disparagement clause discriminates on the bases 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.

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, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). See also Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (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 finds the idea itself offensive or disagreeable"); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55-56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) ; Coates v. Cincinnati, 402 U.S. 611, 615, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) ; Bachellar v. Maryland, 397 U.S. 564, 567, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970) ; Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 509-514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) ; Cox v. Louisiana, 379 U.S. 536, 551, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) ; Edwards v. South Carolina, 372 U.S. 229, 237-238, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) ; Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) ; Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) ; Schneider v. State (Town of Irvington), 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155 (1939) ; De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 81 L.Ed. 278 (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

IV

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 *1764& Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). The Government and amici supporting its position argue that all trademarks are commercial speech. They note that the central purposes of trademarks are commercial and that federal law regulates trademarks to promote fair and orderly interstate commerce. Tam and his amici, on the other hand, contend that many, if not all, trademarks have an expressive component. In other words, these trademarks do not simply identify the source of a product or service but go on to say something more, either about the product or service or some broader issue. The trademark in this case illustrates this point. The name "The Slants" not only identifies the band but expresses a view about social issues.

We need not resolve this debate between the parties because the disparagement clause cannot withstand even Central 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, 100 S.Ct. 2343 (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, 100 S.Ct. 2343. The disparagement clause fails this requirement.

It is claimed that the disparagement clause serves two interests. The first 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 " 'underrepresented 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 Government refers to "encouraging racial tolerance and protecting the privacy and welfare of individuals." Brief for Native American Organizations as Amici Curiae 21. But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing 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, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting).

The second interest asserted is protecting the orderly flow of commerce. See 808 F.3d, at 1379-1381 (Reyna, J., dissenting); Brief for Petitioner 49; Brief for Native American Organizations as Amicus Curiae 18-21. Commerce, we are told, is disrupted by trademarks that "involv[e] disparagement of race, gender, ethnicity, national origin, religion, sexual orientation, and similar demographic classification." 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 Organizations as Amici Curiae 18-20.

A simple answer to this argument is that the disparagement clause is not "narrowly *1765drawn" to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution . It applies to trademarks like the following: "Down with racists," "Down with sexists," "Down with homophobes." 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 disrupted by a trademark saying: "James Buchanan was a disastrous president" or "Slavery is an evil institution"?

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 figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing 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 affirmed.

It is so ordered.

Justice GORSUCH took no part in the consideration or decision of this case.

Justice KENNEDY, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, concurring in part and concurring in the judgment.

The Patent and Trademark Office (PTO) has denied the substantial benefits 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, living or dead, institutions, beliefs, or national symbols."

As the Court is correct to hold, § 1052(a) constitutes viewpoint 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 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.

I

Those few categories of speech that the government can regulate or punish-for instance, fraud, defamation, or incitement-are well established within our constitutional tradition. See United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). Aside from these and a few other narrow exceptions, 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, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995).

The First Amendment guards against laws "targeted at specific subject matter,"

*1766a form of speech suppression known as content based discrimination. Reed v. Town of Gilbert, 576 U.S. ----, ----, 135 S.Ct. 2218, 2230, 192 L.Ed.2d 236 (2015). This category includes a subtype of laws that go further, aimed at the suppression of "particular views ... on a subject." Rosenberger, 515 U.S., at 829, 115 S.Ct. 2510. A law found to discriminate based on viewpoint is an "egregious form of content discrimination," which is "presumptively unconstitutional." Id., at 829-830, 115 S.Ct. 2510.

At its most basic, 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. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (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 instant case, the disparagement clause the Government now seeks to implement and enforce identifies the relevant subject as "persons, living or dead, institutions, beliefs, or national symbols." 15 U.S.C. § 1052(a). Within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the Government's disapproval of a subset of messages it finds 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 applies in equal measure to any trademark that demeans or offends. This misses the point. A subject that is first defined by content and then regulated or censored by mandating 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, 115 S.Ct. 2510 ("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 officials could be praised but not condemned. The First Amendment's viewpoint neutrality principle protects more than the right to identify with a particular side. It protects the right to create and present arguments for particular positions in particular ways, as the speaker chooses. By mandating positivity, the law here might silence dissent and distort the marketplace of ideas.

The Government next suggests that the statute is viewpoint 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 Government 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 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 *1767that viewpoint discrimination occurs when the government intends to suppress a speaker's beliefs, Reed, supra, at ---- - ----, 135 S.Ct., at 2229-2230, 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 first hearing. An initial reaction may prompt further reflection, 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 government'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 find 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 1763 - 1764 (collecting examples).

The Government's argument in defense of the statute assumes 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, respondent 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 confirms the constitutional vice of the statute.

II

The parties dispute whether trademarks are commercial speech and whether trademark registration should be considered 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 regulation. However that issue is resolved, the viewpoint based discrimination at issue here necessarily invokes heightened scrutiny.

"Commercial speech is no exception," the Court has explained, to the principle that the First Amendment "requires heightened scrutiny whenever the government creates a regulation of speech because of disagreement with the message it conveys." Sorrell v. IMS Health Inc., 564 U.S. 552, 566, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011) (internal quotation marks omitted). Unlike content based discrimination, discrimination based on viewpoint, including 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, 103 S.Ct. 2875, 77 L.Ed.2d 469 (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' reference to the "free trade in ideas" and the "power of ... thought to get itself accepted in the competition of the market,"

*1768Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (dissenting opinion), was a metaphor. In the realm of trademarks, the metaphorical marketplace of ideas becomes a tangible, powerful reality. Here that real marketplace exists as a matter of state law and our common-law tradition, quite without regard to the Federal Government. See ante, at 1751. These marks make up part of the expression of everyday life, as with the names of entertainment groups, broadcast networks, designer clothing, newspapers, automobiles, candy bars, toys, and so on. See Brief for Pro-Football, Inc., as Amicus Curiae 8 (collecting examples). Nonprofit organizations-ranging from medical-research charities and other humanitarian causes to political advocacy groups-also have trademarks, which they use to compete in a real economic sense for funding and other resources as they seek to persuade others to join their cause. See id., at 8-9 (collecting examples). To permit viewpoint discrimination in this context is to permit Government censorship.

This case does not present the question of how other provisions of the Lanham Act should be analyzed under the First Amendment. It is well settled, for instance, that to the extent a trademark is confusing or misleading the law can protect consumers and trademark owners. See, e.g., FTC v. Winsted Hosiery Co., 258 U.S. 483, 493, 42 S.Ct. 384, 66 L.Ed. 729 (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 labeling or otherwise designed to protect consumers. See Sorrell, supra, at 579, 131 S.Ct. 2653 ("[T]he government's legitimate interest in protecting consumers from commercial harms explains why commercial speech can be subject to greater governmental regulation than noncommercial speech" (internal quotation marks omitted)). These considerations, however, do not alter the speech principles that bar the viewpoint discrimination embodied in the statutory provision at issue here.

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, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001) ; Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229, 235, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000) ; Rosenberger, 515 U.S., at 833, 115 S.Ct. 2510. The exception is necessary to allow the government to stake out positions and pursue policies. See Southworth, supra, at 235, 120 S.Ct. 1346 ; see also ante, at 1757 - 1758. But it is also narrow, to prevent the government from claiming that every government program is exempt from the First Amendment. These cases have identified a number of factors that, if present, suggest the government is speaking on its own behalf; but none are present here. See ante, at 1758 - 1761.

There may be situations where private speakers are selected 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 identification. To serve that broad purpose, the Government has provided the benefits of federal registration to millions of marks identifying every type of product and cause. Registered trademarks do so by means of a wide diversity of words, symbols, and messages. Whether a mark is disparaging bears no plausible relation to that goal. While defining the purpose and scope of a federal program for these *1769purposes can be complex, see, e.g., Agency for Int'l Development v. Alliance for Open Society Int'l, Inc., 570 U.S. ----, ----, 133 S.Ct. 2321, 2328, 186 L.Ed.2d 398 (2013), our cases are clear that viewpoint discrimination is not permitted where, as here, the Government "expends funds to encourage a diversity of views from private speakers," Velazquez, supra, at 542, 121 S.Ct. 1043 (internal quotation marks omitted).

* * *

A law that can be directed against speech found offensive to some portion of the public can be turned against minority 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 substantial 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 Office or to the Court of Appeals, and we declined respondent's invitation to grant certiorari on this question. Ante, at 1755. I see no reason to address this legal question in the first instance. See Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. ----, ----, 137 S.Ct. 1002, 1009-1010, 197 L.Ed.2d 354 (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 appropriate, whether or not the speech in question may be characterized as 'commercial.' " Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 572, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001) (THOMAS, J., concurring in part and concurring in judgment); see also, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) (same). I nonetheless join Part IV of Justice ALITO's opinion because 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, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

Mr. Chief Justice Vinson

delivered the opinion of the Court.

Petitioners challenge the constitutionality of California’s Alien Land Law1 as it has been applied in this case to effect an escheat of two small parcels of agricultural land.2 One of the petitioners is Fred Oyama, a minor American citizen in whose name title was taken. The other is his father and guardian, Kajiro Oyama, a Japanese citizen not eligible for naturalization,3 who paid the purchase price.

Petitioners press three attacks on the Alien Land Law as it has been applied in this case: first, that it deprives Fred Oyama of the equal protection of the laws and of his privileges as an American citizen; secondly, that it denies Kajiro Oyama equal protection of the laws; and, thirdly, that it contravenes the due process clause by sanctioning a taking of property after expiration of the *636applicable limitations period. Proper foundation for these claims has been laid in the proceedings below.

In approaching cases, such as this one, in which federal constitutional rights are asserted, it is incumbent on us to inquire not merely whether those rights have been denied in express terms, but also whether they have been denied in substance and effect. We must review independently both the legal issues and those factual matters with which they are commingled.4

In broad outline, the Alien Land Law forbids aliens ineligible for American citizenship to acquire, own, occupy, lease, or transfer agricultural land.5 It also provides that any property acquired in violation of the statute shall escheat as of the date of acquisition 6 and that the same result shall follow any transfer made with “intent to prevent, evade or avoid” escheat.7 In addition, that intent is presumed, prima jade, whenever an ineligible alien pays the consideration for a transfer to a citizen or eligible alien.8

The first of the two parcels in question, consisting of six acres of agricultural land in southern California, was purchased in 1934, when Fred Oyama was six years old. Kajiro Oyama paid the $4,000 consideration, and the seller executed a deed to Fred. The deed was duly recorded.

Some six months later, the father petitioned the Superior Court for San Diego County to be appointed Fred’s guardian, stating that Fred owned the six acres. After a hearing, the court found the allegations of the petition *637true and Kajiro Oyama “a competent and proper person” to be appointed Fred’s guardian. The appointment was then ordered, and the father posted the necessary bond.

In 1936 and again in 1937, the father as guardian sought permission to borrow $4,000, payable in six months, for the purpose of financing the next season’s crops and to mortgage the six-acre parcel as security. In each case notice of the petition and date for hearing was published in a newspaper, the court then approved the borrowing as advantageous to Fred Oyama’s estate, and the father posted a bond for $8,000. So far as appears from the record, both loans were obtained, used for the benefit of the estate, and repaid on maturity.

The second parcel, an adjoining two acres, was acquired in 1937, when Fred was nine years old. It was sold by the guardian of another minor, and the court supervising that guardianship confirmed the sale “to Fred Oyama” as highest bidder at a publicly advertised sale. A copy of the court’s order was recorded. Fred’s father again paid the purchase price, $1,500.

From the time of the two transfers until the date of trial, however, Kajiro Oyama did not file the annual reports which the Alien Land Law requires of all guardians of agricultural land belonging to minor children of ineligible aliens.9

In 1942, Fred and his family were evacuated from the Pacific Coast along with all other persons of Japanese descent. And in 1944, when Fred was sixteen and still forbidden to return home, the State filed a petition to declare an escheat of the two parcels on the ground that the conveyances in 1934 and 1937 had been with intent to violate and evade the Alien Land Law.

*638At the trial the only witness, other than a court official testifying to records showing the facts set forth above, was one John Kurfurst, who had been left in charge of the land at the time of the evacuation. He testified that the Oyama family once lived on the land but had not occupied it for several years before the evacuation. After the evacuation, Kurfurst and those to whom he rented the property drew checks to Fred Oyama for the rentals (less expenses), and Kurfurst transmitted them to Fred Oyama through the War Relocation Authority. The canceled checks were returned endorsed “Fred Oyama,” and no evidence was offered to prove that the signatures were not by the son. Moreover, the receipts issued by the War Relocation Authority for the funds transmitted by Kurfurst were for the account of Fred Oyama, and Kurfurst identified a letter signed “Fred Oyama” directing him to turn the property over to a local bank for management.

On direct examination by the State’s Attorney, however, Kurfurst also testified that he knew the father as “Fred,” but he added that he had never heard the father refer to himself by that name. In addition, he testified on cross-examination that he had once heard the father say, “Some day the boy will have a good piece of property because that is going to be valuable.” He also admitted that he knew “the father was running the boy’s business” and that “the property belonged to the boy and to June Kushino” (Fred’s cousin, an American citizen). Kurfurst further acknowledged that in a letter he had written about the property and had headed “Re: Fred Yoshihiro Oyama and June Kushino” he meant by “Fred Yoshihiro Oyama” the boy, not the father. He also understood a letter written to him by the War Relocation Authority “Re: Fred Oyama” to refer to the boy.

From this evidence the trial court found as facts that the father had had the beneficial use of the land and that *639the transfers were subterfuges effected with intent to prevent, evade or avoid escheat. Accordingly, the court entered its conclusion of law that the parcels had vested in the State as of the date of the attempted transfers in 1934 and 1937.

The trial court filed no written opinion but indicated orally that its findings were based primarily on four inferences: (1) the statutory presumption that any conveyance is with “intent to prevent, evade or avoid” escheat if an ineligible alien pays the consideration;10 (2) an inference of similar intent from the mere fact that the conveyances ran to a minor child;11 (3) an inference of lack of bona hides at the time of the original transactions from the fact that the father thereafter failed to file annual guardianship reports; and (4) an inference from the father’s failure to testify that his testimony would have been adverse to his son’s cause. No countervailing inference was warranted by the exhibits in Fred’s name, the judge said, “because there are many instances where there is little in a name.”

In holding the trial court’s findings of intent fully justified by the evidence, the Supreme Court of California pointed to the same four inferences. It also ruled that California could constitutionally exclude ineligible aliens from any interest in agricultural land,12 and that Fred Oyama was deprived of no constitutional guarantees since *640the land had passed to the State without ever vesting in him.

We agree with petitioners’ first contention, that the Alien Land Law, as applied in this case, deprives Fred Oyama of the equal protection of California’s laws and of his privileges as an American citizen. In our view of the case, the State has discriminated against Fred Oyama; the discrimination is based solely on his parents’ country of origin; and there is absent the compelling justification which would be needed to sustain discrimination of that nature.

By federal statute, enacted before the Fourteenth Amendment but vindicated by it, the states must accord to all citizens the right to take and hold real property.13 California, of course, recognizes both this right and the fact that infancy does not incapacitate a minor from holding realty.14 It is also established under California law that ineligible aliens may arrange gifts of agricultural land to their citizen children.15 Likewise, when a minor citizen does become the owner of agricultural land, by gift or otherwise, his father may be appointed guardian of the estate, whether the father be a citizen, an eligible alien, or an ineligible alien.16 And, once appointed, a guardian is *641entitled to have custody of the estate and to manage and husband it for the ward’s benefit.17 To that extent Fred Oyama is ostensibly on a par with minors of different lineage.

At this point, however, the road forks. The California law points in one direction for minor citizens like Fred Oyama, whose parents cannot be naturalized, and in another for all other children — for minor citizens whose parents are either citizens or eligible aliens, and even for minors who are themselves aliens though eligible for naturalization.

In the first place, for most minors California has the customary rule that where a parent pays for a conveyance to his child there is a presumption that a gift is intended; there is no presumption of a resulting trust, no presumption that the minor takes the land for the benefit of his parent.18 When a gift is thus presumed and the deed is recorded in the child’s name, the recording suffices for delivery,19 and, absent evidence that the gift is disadvantageous, acceptance is also presumed.20 Thus the burden of proving that there was in fact no completed bona fide gift falls to him who would attack its validity.

*642Fred Oyama, on the other hand, faced at the outset the necessity of overcoming a statutory presumption that conveyances financed by his father and recorded in Fred’s name were not gifts at all. Something very akin to a resulting trust was presumed and, at least prima jade, Fred was presumed to hold title for the benefit of his parent.21

In the second place, when it came to rebutting this statutory presumption, Fred Oyama ran into other obstacles which, so far as we can ascertain, do not beset the path of most minor donees in California.

Thus the California courts said that the very fact that the transfer put the land beyond the father’s power to deal with it directly — to deed it away, to borrow money on it, and to make free disposition of it in any other way- — showed that the transfer was not complete, that it was merely colorable. The fact that the father attached no strings to the transfer was taken to indicate that he meant, in effect, to acquire the beneficial ownership himself. The California law purports to permit citizen sons to take gifts of agricultural land from their fathers, regardless of the fathers’ nationality. Yet, as indicated by this case, if the father is ineligible for citizenship, facts which would usually be considered indicia of the son’s ownership are used to make that ownership suspect; if the father is not an ineligible alien, however, the same facts would be evidence that a completed gift was intended.

Furthermore, Fred Oyama had to counter evidence that his father was remiss in his duties as guardian. Acts *643subsequent to a transfer may, of course, be relevant to indicate a transferor’s intent at the time of the transfer. In this case the trial court itself had reservations as to the evidentiary value of the father’s omissions;22 with these we agree, especially because there was some reason to believe reports were not required of him until 1943,23 and he had been excluded from the state from 1942 on. More important to the issue of equal protection, however, our attention has been called to no other case in which the penalty for a guardian’s derelictions has fallen on any one but the guardian. At any time the court supervising the guardianship could have demanded the annual accounts and, if appropriate, could have removed Kajiro Oyama as guardian; severe punishment could also have been meted out.24 The whole theory of *644guardianships is to protect the ward during his period of incapacity to protect himself. In Fred Oyama’s case, however, the father’s deeds were visited on the son; the ward became the guarantor of his guardian’s conduct.

The cumulative effect, we believe, was clearly to discriminate against Fred Oyama. He was saddled with an onerous burden of proof which need not be borne by California children generally. The statutory presumption and the two ancillary inferences, which would not be used against most children, were given such probative value as to prevail in the face of a deed entered in the public records, four court orders recognizing Fred Oyama as the owner of the land, several newspaper notices to the same effect, and testimony that business transactions regarding the land were generally understood to be on his behalf. In short, Fred Oyama lost his gift, irretrievably and without compensation, solely because of the extraordinary obstacles which the State set before him.

The only basis for this discrimination against an American citizen, moreover, was the fact that his father was Japanese and not American, Russian, Chinese, or English. But for that fact alone, Fred Oyama, now a little over a year from majority, would be the undisputed owner of the eight acres in question.

The State argues that racial descent is not the basis for whatever discrimination has taken place. The argument is that the same statutory presumption of fraud would apply alike to any person taking agricultural land paid for by Kajiro Oyama, whether the recipient was Fred Oyama or a stranger of entirely different ancestry. We do not know how realistic it is to suppose that Kajiro *645Oyama would attempt gifts of land to others than his close relatives. But in any event, the State’s argument ignores the fact that the generally applicable California law treats conveyances to the transferor’s children differently from conveyances to strangers. Whenever a Chinese or English parent, to take an example, pays a third party to deed land to a stranger, a resulting trust is presumed to arise, and the stranger is presumed to hold the land for the benefit of the person paying the consideration; 25 when the Alien Land Law applies a similar presumption to a like transfer by Kajiro Oyama to a stranger, it appears merely to reiterate the generally applicable law of resulting trusts. When, on the other hand, the same Chinese or English father uses his own funds to buy land in his citizen son’s name, an indefeasible title is presumed to vest in the boy;26 but when Kajiro Oyama arranges a similar transfer to Fred Oyama, the Alien Land Law interposes a presumption just to the contrary. Thus, as between the citizen children of a Chinese or English father and the citizen children of a Japanese father, there is discrimination; as between strangers taking from the same transferors, there appears to be none.

It is for this reason that Cockrill v. California, 268 U. S. 258 (1925), does not support the State’s position. In that case an ineligible alien paid for land and had title put in a stranger’s name, and this Court affirmed a decision upholding the statutory presumption of the Alien Land Law as there applied.27

*646There remains the question of whether discrimination between citizens on the basis of their racial descent, as revealed in this case, is justifiable. Here we start with the proposition that only the most exceptional circumstances can excuse discrimination on that basis in the face of the equal protection clause and a federal statute giving all citizens the right to own land.28 In Hirabayashi v. United States, this Court sustained a war measure which involved restrictions against citizens of Japanese descent. But the Court recognized that, as a general rule, “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” 320 U.S. 81, 100 (1943).

The only justification urged upon us by the State is that the discrimination is necessary to prevent evasion of the Alien Land Law’s prohibition against the ownership of agricultural land by ineligible aliens. This reasoning presupposes the validity of that prohibition, a premise which we deem it unnecessary and therefore inappropriate to reexamine in this case. But assuming, for purposes of argument only, that the basic prohibition is constitutional, it does not follow that there is no consti*647tutional limit to the means which may be used to enforce it. In the light most favorable to the State, this case presents a conflict between the State’s right to formulate a policy of landholding within its bounds and the right of American citizens to own land anywhere in the United States. When these two rights clash, the rights of a citizen may not be subordinated merely because of his father’s country of origin.

Since the view we take of petitioners’ first contention requires reversal of the decision below, we do not reach their other contentions: that the Alien Land Law denies ineligible aliens the equal protection of the laws, and that failure to apply any limitations period to escheat actions under that law takes property without due process of law.

Reversed.

Mr. Justice Black,

with whom Mr. Justice Douglas agrees,

concurring.

I concur in the Court’s judgment and its opinion. But I should prefer to reverse the judgment on the broader grounds that the basic provisions of the California Alien Land Law violate the equal protection clause of the Fourteenth Amendment and conflict with federal laws and treaties governing the immigration of aliens and their rights after arrival in this country. The California law in actual effect singles out aliens of Japanese ancestry, requires the escheat of any real estate they own, and its language is broad enough to make it a criminal offense, punishable by imprisonment up to ten years, for them to acquire, enjoy, use, possess, cultivate, occupy, or transfer real property.1 It would therefore appear to be a crime *648for an alien of Japanese ancestry to own a home in California, at least if the land around it is suitable for cultivation.2 This is true although the statute does not name the Japanese as such, and although its terms also apply to a comparatively small number of aliens from other countries. That the effect and purpose of the law is to discriminate against' Japanese because they are Japanese is too plain to call for more than a statement of that well-known fact.

We are told, however, that, despite the sweeping prohibition against Japanese ownership or occupancy, it is no violation of the law for a Japanese to work on land as a hired hand for American citizens or for foreign nationals permitted to own California lands. And a Japanese man or woman may also use or occupy land if acting only in the capacity of a servant. In other words, by this Alien Land Law California puts all Japanese aliens within its boundaries on the lowest possible economic level. And this Land Law has been followed by another which now bars Japanese from the fishing industry. Cal. Stats. 1945, c. 181; see Takahashi v. Fish & Game Comm’n, 30 Cal. 2d *649719, 185 P. 2d 805. If there is any one purpose of the Fourteenth Amendment that is wholly outside the realm of doubt, it is that the Amendment was designed to bar States from denying to some groups, on account of their race or color, any rights, privileges, and opportunities accorded to other groups. I would now overrule the previous decisions of this Court that sustained state land laws which discriminate against people of Japanese origin residing in this country.3

Congress has provided strict immigration tests and quotas. It has also enacted laws to regulate aliens after admission into the country. Other statutes provide for deportation of aliens. Although Japanese are not permitted to become citizens by the ordinary process of naturalization, still Congress permitted the admission of some Japanese into this country. All of this means that Congress, in the exercise of its exclusive power over immigration, Truax v. Raich, 239 U. S. 33, 42, decided that certain Japanese, subject to federal laws, might come to and live in any one of the States of the Union. The Supreme Court of California has said that one purpose of that State’s Land Law is to “discourage the coming of Japanese into this state . . . .” Estate of Yano, 188 Cal. 645, 658, 206 P. 995, 1001. California should not be permitted to erect obstacles designed to prevent the immigration of people whom Congress has authorized to come into and remain in the country. See Hines v. Davidowitz, 312 U. S. 52, 68. There are additional reasons now why that law stands as an obstacle to the free accomplishment of our policy in the international field. One of these reasons is that we have recently pledged ourselves to cooperate with the United Nations to “promote . . . universal respect for, and observance of, human rights and fundamen*650tal freedoms for all without distinction as to race, sex, language, or religion.”4 How can this nation be faithful to this international pledge if state laws which bar land ownership and occupancy by aliens on account of race are permitted to be enforced?

Mr. Justice Murphy,

with whom Mr. Justice Rutledge joins,

concurring.

To me the controlling issue in this case is whether the California Alien Land Law on its face is consistent with the Constitution of the United States. Can a state prohibit all aliens ineligible for American citizenship from acquiring, owning, occupying, enjoying, leasing or transferring agricultural land? Does such a prohibition square with the language of the Fourteenth Amendment that no state shall “deny to any person within its jurisdiction the equal protection of the laws”?

The negative answer to those queries is dictated by the uncompromising opposition of the Constitution to racism, whatever cloak or disguise it may assume. The California statute in question, as I view it, is nothing more than an outright racial discrimination. As such, it deserves constitutional condemnation. And since the very core of the statute is so defective, I consider it necessary to give voice to that fact even though I join in the opinion of the Court.

In its argument before us, California has disclaimed any implication that the Alien Land Law is racist in its origin, purpose or effect. Reference is made to the fact that nowhere in the statute is there a single mention of race, color, creed or place of birth or allegiance as a determinant of who may not own or hold farm land. The discrimination established by the statute is said to *651be entirely innocent of the use of such factors, being grounded solely upon the reasonable distinctions created by Congress in its naturalization laws. However, an examination of the circumstances surrounding the original enactment of this law in 1913, its reenactment in 1920 and its subsequent application reveals quite a different story.1

The California Alien Land Law was spawned of the great anti-Oriental virus which, at an early date, infected many persons in that state. The history of this anti-Oriental agitation is not one that does credit to a nation that prides itself, at least historically, on being the friendly haven of the tired and the oppressed of other lands. Beginning in 1850, with the arrival of substantial numbers of Chinese immigrants, racial prejudices and discriminations began to mount. Much of the opposition to these Chinese came from trade unionists, who feared economic competition, and from politicians, who sought union support. Other groups also shared in this opposition. Various laws and ordinances were enacted for the purpose of discouraging the immigrants and dramatizing *652the native dissatisfaction. Individual Chinese were subjected to many acts of violence. Eventually, Congress responded to this popular agitation and adopted Chinese exclusion laws.

It was not until 1900 that Japanese began to arrive in California in large numbers. By that time the repressive measures directed at the Chinese had achieved much of their desired effect; the Chinese population had materially decreased and the antipathy of the Americans was on the decline. But the arrival of the Japanese fanned anew the flames of anti-Oriental prejudice. History then began to repeat itself. White workers resented the new influx, a resentment which readily lent itself to political exploitation. Demands were made that Japanese immigration be limited or prohibited entirely.2 Numerous *653acts of violence were perpetrated against Japanese businessmen and workers, combined with private economic sanctions designed to drive them out of business. Charges of espionage, unassimilativeness, clannishness and corruption of young children were made against these “Mongolian invaders.” Campaigns were organized to secure segregated schools and to preserve “America for the Americans.”

Indeed, so loud did this anti-Japanese clamor become that the Japanese Government made formal protests to the United States. President Theodore Roosevelt thereupon investigated and intervened in the California situation. He was able to secure a slight amelioration. Further negotiations with the Japanese Government resulted in a so-called “gentlemen’s agreement,” whereby the Japanese Government agreed to limit passports to the United States to nonlaborers and to others who had already established certain business and personal interests in this country.3

But the agitation did not die and anti-Japanese measures continued to be proposed in wholesale fashion. The first anti-Japanese land bills were introduced in the California legislature in 1907, but the combined efforts of President Roosevelt and Governor Gillett prevented their passage. At least seventeen anti-Japanese bills were introduced in the 1909 session, including another land bill. President Roosevelt again intervened. This time he succeeded in having the land bill amended to apply to all aliens, as a result of which the bill was defeated;4 he was also instrumental in preventing the *654passage of a school segregation bill. The flood of anti-Japanese proposals continued in the 1911 session, at which more than twenty such measures were introduced. Among them, of course, was still another alien land bill. It provided that “no alien who is not eligible to citizenship” should hold real property in California. The prospects for the passage of this bill seemed good, for by this time all political parties in the state had anti-Japanese planks in their platforms. But Presidential intervention was once again successful and the bill died in committee.5

In 1913, however, nothing could stop the passage of the original version of what is now the Alien Land Law.6 This measure, though limited to agricultural lands, represented the first official act of discrimination aimed at the Japanese. Many Japanese were engaged in agricultural pursuits in 1913 and they constituted a substantial segment of the California farm labor supply. From 1900 to 1910, Japanese-controlled farms in California had in*655creased from 4,698 acres to 99,254 acres. The agricultural situation thus offered a fruitful target for the anti-Japanese forces, who had been balked in their attempts to secure a ban on all Japanese immigration and to outlaw Japanese acquisition and enjoyment of residential and commercial property. In this new endeavor they were eminently successful. Secretary of State Bryan, acting on behalf of President Wilson, made a personal appearance in California to plead for caution, but his request was ignored as the legislators voted overwhelmingly in favor of the bill. This 1913 law denied “aliens ineligible to citizenship” the privilege of buying land for agricultural purposes in California, and allowed them to lease land for such purposes for no more than three years. The measure was so drawn as not to be inconsistent with the Japanese-American treaty of 1911, which authorized Japanese in this country to lease and occupy land for residential and commercial purposes. But since the treaty made no mention of agricultural land, legislation on the matter by California did not present a square conflict.

The passage of the law was an international incident. The Japanese Government made an immediate protest on the ground that the statute was an indication of unfriendliness towards its people. Indeed, the resentment was so violent inside Japan that demands were made that war be declared against the United States. Anti-American agitation grew rapidly.7 The question *656was discussed at length on the diplomatic level. It was declared by the Japanese Minister of Foreign Affairs that the statute “is essentially unfair and invidiously discriminatory against my countrymen, and inconsistent as well with the sentiments of amity and good neighborhood which have presided over the relations between the two countries . ...”8 But the matter was allowed to lapse as both countries became increasingly occupied with the developments of World War I.

The intention of those responsible for the 1913 law was plain. The “Japanese menace” was to be dealt with on a racial basis. The immediate purpose, of course, was to restrict Japanese farm competition. As subsequently stated by Governor Stephens of California, “In 1913 the Legislature of this state passed a statute forbidding the ownership of agricultural lands by Japanese and limiting their tenure to three-year leaseholds. It was the hope at that time that the enactment of this statute might put a stop to the encroachments of the Japanese agriculturist.” 9 Actually, however, the law had little effect on the *657farm situation. It failed to prohibit the acquisition of farms in the future or to divest any existing holdings; and there was no limitation on the renewal of leases. The Japanese farm population remained largely intact.

The more basic purpose of the statute was to irritate the Japanese, to make economic life in California as uncomfortable and unprofitable for them as legally possible. It was thus but a step in the long campaign to discourage the Japanese from entering California and to drive out those who were already there. The Supreme Court of California admitted as much in its statement that the Alien Land Law was framed so as “to discourage the coming of Japanese into this state.” Estate of Tetsubumi Yano, 188 Cal. 645, 658, 206 P. 995, 1001. Even more candid was the declaration in 1913 by Ulysses S. Webb, one of the authors of the law and an Attorney General of California. He stated: “The fundamental basis of all legislation upon this subject, State and Federal, has been, and is, race undesirability. It is unimportant and foreign to the question under discussion whether a particular race is inferior. The simple and single question is, is the race desirable .... It [the Alien Land Law] seeks to limit their presence by curtailing their privileges which they may enjoy here; for they will not come in large numbers and long abide with us if they may not acquire land. And it seeks to limit the numbers who will come by limiting the opportunities for their activity here when they arrive.” 10

*658Further evidence of the racial prejudice underlying the Alien Land Law is to be found in the events relating to the reenactment and strengthening of the statute by popular initiative in 1920. More severe and effective than the 1913 law, the initiative measure prohibited ineligible aliens from leasing land for agricultural purposes; and it plugged various other loopholes in the earlier provisions. A spirited campaign was waged to secure popular approval, a campaign with a bitter anti-Japanese flavor. All the propaganda devices then known — newspapers, speeches, films, pamphlets, leaflets, billboards, and the like — were utilized to spread the anti-Japanese poison.11 The Japanese were depicted as *659degenerate mongrels and the voters were urged to save “California — the White Man’s Paradise” from the “yellow peril,” which had somewhat lapsed in the public mind since 1913. Claims were made that the birth rate of the Japanese was so high that the white people would eventually be replaced and dire warnings were made that the low standard of living of the Japanese endangered the economic and social health of the community. Opponents of the initiative measure were labeled “Japlovers.” The fires of racial animosity were thus rekindled and the flames rose to new heights.

In a pamphlet officially mailed to all voters prior to the election, they were told that the primary purpose of the new measure was “to prohibit Orientals who cannot become American citizens from controlling our rich agricultural lands .... Orientals, and more particularly Japanese, [have] commenced to secure control of agricultural lands in California . . . .” 12 The arguments in the pamphlet in support of the measure were repeatedly directed against the Japanese alone, without reference to other Orientals or to others who were ineligible for American citizenship. In this atmosphere heavy with race hatred, the voters gave decisive approval to the proposal, 668,483 to 222,086, though the majority constituted less than half of the total electorate. But so virulent had been the campaign and so deep had been the natural resentment in Japan that once again the threat of war appeared on the horizon, only to die in the rush of other events.

It is true that the Alien Land Law, in its original and amended form, fails to mention Japanese aliens by name. Some of the proposals preceding the adoption of the original measure in 1913 had in fact made specific refer*660ence to Japanese aliens. But the expansion of the discrimination to include all aliens ineligible for citizenship did not indicate any retreat from the avowed anti-Japanese purpose. Adoption of the Congressional standard of ineligibility for citizenship was only an indirect, but no less effective, means of achieving the desired end. The federal legislation at all pertinent times has been so drawn as to exclude Japanese aliens from American citizenship.13 This Court has said, in referring to such legislation, that “a person of the Japanese race, if not born a citizen, is ineligible to become a citizen, i. e., to be naturalized.” Morrison v. California, 291 U. S. 82, 85. The framers of the California law were therefore able to utilize the federal standard with full assurance that the result would be to exclude Japanese aliens from the ownership and use of farm land. Congress supplied a ready-made vehicle for discriminating against Japanese aliens, a vehicle which California was prompt to grasp and expand to purposes quite beyond the scope or object of the Congressional statute.

Moreover, there is nothing to indicate that the proponents of the California law were at any time concerned with the use or ownership of farm land by ineligible aliens other than those of Japanese origin. Among those ineligible for citizenship when the law was under consideration were Chinese aliens. But the Chinese in California were generally engaged in small commercial *661enterprises rather than in agricultural occupations and, in addition, were not considered a menace because of the Chinese exclusion acts.14 No mention was made by the statute’s proponents of the Hindus or the Malay and Polynesian aliens who were resident in California. Aliens of the latter types were so numerically insignificant as to arouse no interest or animosity.15 Only the Japanese aliens presented the real problem. It was they, the “yellow horde,” who were the object of the legislation.

That fact has been further demonstrated by the subsequent enforcement of the Alien Land Law. At least 79 escheat actions have been instituted by the state since the statute became effective. Of these 79 proceedings, 4 involved Hindus, 2 involved Chinese and the remaining 73 involved Japanese.16 Curiously enough, 59 of the 73 Japanese cases were begun by the state subsequent to Pearl Harbor, during the period when the hysteria generated by World War II magnified the opportunities for *662effective anti-Japanese propaganda.17 Vigorous enforcement of the Alien Land Law has been but one of the cruel discriminatory actions which have marked this nation’s treatment since 1941 of those residents who chanced to be of Japanese origin.

The Alien Land Law, in short, was designed to effectuate a purely racial discrimination, to prohibit a Japanese alien from owning or using agricultural land solely because he is a Japanese alien. It is rooted deeply in racial, economic and social antagonisms. The question confronting us is whether such a statute, viewed against the background of racism, can mount the hurdle of the equal protection clause of the Fourteenth Amendment. Can a state disregard in this manner the historic ideal that those within the borders of this nation are not to be denied rights and privileges because they are of a particular race? I say that it cannot.

The equal protection clause is too clear to admit of any other conclusion. It provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The words “any person” have *663sufficient scope to include resident aliens, whether eligible for citizenship or not. Yick Wo v. Hopkins, 118 U. S. 356; Truax v. Raich, 239 U. S. 33. Hence Japanese aliens ineligible for citizenship must be accorded equal protection. And the laws as to which equal protection must be given certainly include those protecting the right to engage in common occupations like farming, Yick Wo v. Hopkins, supra, and those pertaining to the use and ownership of agricultural lands, Buchanan v. Warley, 245 U. S. 60. The concept of equal protection, however, may in rare cases permit a state to single out a class of persons, such as ineligible aliens, for distinctive treatment. The crucial test in these exceptional instances is whether there is a rational basis for the particular kind of discrimination involved. Are the characteristics of the class such as to provide a rational justification for the difference in treatment?

Such a rational basis is completely lacking where, as here, the discrimination stems directly from racial hatred and intolerance. The Constitution of the United States, as I read it, embodies the highest political ideals of which man is capable. It insists that our government, whether state or federal, shall respect and observe the dignity of each individual, whatever may be the name of his race, the color of his skin or the nature of his beliefs. It thus renders irrational, as a justification for discrimination, those factors which reflect racial animosity. Yet the history of the Alien Land Law shows beyond all doubt that factors of that nature make up the foundation upon which rests the discrimination established therein. And such factors are at once evident when the legal, social and economic considerations advanced in support of the discrimination are subjected to rigid scrutiny.

First. It is said that the rule established by Congress for determining those classes of aliens who may become *664citizens furnishes in and of itself a reasonable basis for the discrimination involved in the Alien Land Law.

The proposition that the “plenary” power of Congress over naturalization is uninhibited, even by the constitutional prohibition of racism, is one that is open to grave doubts in my mind.18 Racism has no justifiable place whatever in our way of life, even when it appears under the guise of “plenary” power. Cf. concurring opinion in Bridges v. Wixon, 326 U. S. 135, 161-162. But the fact remains that Congress has made racial distinctions in establishing naturalization standards. And those distinctions in large part have grown out of the demands of racially intolerant groups, including many of those who were among the foremost proponents of the Alien Land Law. Yet it does not follow, even if we assume that Congress was justified in adopting such racial distinctions, that California can blindly adopt those distinctions for the purpose of determining who may own and enjoy agricultural land. What may be reasonable and constitutional for Congress for one purpose may not be reasonable or constitutional for a state legislature for another and wholly distinct purpose. Otherwise there would be few practical limitations to the power of a state to discriminate among those within its jurisdiction, there being a plethora of federal classifications which could be copied.19

In other words, if a state wishes to borrow a federal classification, it must seek to rationalize the adopted distinction in the new setting. Is the distinction a reasonable one for the purposes for which the state desires to *665use it? To that question it is no answer that the distinction was taken from a federal statute or that the distinction may be rationalized for the purpose for which Congress used it. The state's use of the distinction must stand or fall on its own merits. And if it appears that the equal protection clause forbids the state from using the distinction for the desired purpose, the fact that Congress is free to adopt the distinction in some other connection gives the state no additional power to act upon it. Thus the state acquires no power whatever to impose racial discriminations upon resident aliens from the Congressional power to exclude some or all aliens on a racial basis.

Second. It is said that eligibility for American citizenship is inherently related to loyal allegiance and desire to work for the success and welfare of the state, which has a vital interest in the farm lands within its borders. Hence it may limit the ownership and use of farms to those who are or who may become citizens.

Such a claim is outlawed by reality. In 1940 there were 4,741,971 aliens residing in the continental United States, of whom 48,158 were ineligible for naturalization.20 Many of these ineligible aliens have long been domiciled in this country. They have gone into various businesses and professions. They have established homes and reared children, who have the status of American citizens by virtue of their birth in this country. And they have entered into the social and religious fabrics of their communities. Such ineligible aliens thus have a vital interest in the economic, social and political well-being of the states in which they reside and their loyalty has been *666proved many times.21 The fact that they are ineligible for citizenship does not, by itself, make them incapable of forming these ties and interests. Nor does their ineligibility necessarily preclude them from possessing the loyalty and allegiance which the state rightly desires.

Loyalty and the desire to work for the welfare of the state, in short, are individual rather than group characteristics. An ineligible alien may or may not be loyal; he may or may not wish to work for the success and welfare of the state or nation. But the same can be said of an eligible alien or a natural born citizen. It is the essence of na'iveté to insist that these desirable characteristics are always lacking in a racially ineligible alien, whose ineligibility may be remedied tomorrow by Congress.22 These are matters which depend upon factors far more subtle and penetrating than the prevailing naturalization standards. As this Court has said, “Loyalty is a matter of the heart and mind, not of race, creed, or color.” Ex parte Endo, 323 U. S. 283, 302. And so racial eligibility for citizenship is an irrational basis for determining who is loyal or who desires to work for the welfare of the state.

Third. It has been said that if ineligible aliens could lease or own farms, it is within the realm of possibility that they might acquire every foot of land in California which is fit for agriculture.

*667If we assume that it is wrong for ineligible aliens to own or use all the farm land in California, such a contention is statistically absurd.23 The Japanese population in California, both citizen and alien, has increased from 41,356 (more than one-tenth of them citizens) in 1910 to 71,952 (about one-third of them citizens) in 1920 to 93,717 (about two-thirds of them citizens) in 1940. Of the total farms in California in 1920, Japanese citizens and aliens controlled 4.4%, comprising 1.2% of the total acreage. In 1930 they controlled 2.9% of the farms, or 0.6% of the acreage. And in 1940 they controlled 3.9% of the farms, or 0.7% of the acreage. Since we are concerned here only with the Japanese aliens, the percentage of the farms and acreage controlled by them is materially less than the foregoing figures. Thus the possibility of all the California farm land falling under the control of Japanese aliens is quite remote, to say the least.

Moreover, the nature of the Japanese alien segment of the California population is significant. In 1940 there were 33,569 Japanese aliens in that state, but the number is now smaller, the best estimate being about 25,000.24 The 33,569 figure represents those who entered before 1924, when Congress prohibited further immigration of aliens ineligible for citizenship.25 By 1940, all but 2,760 of these individuals were 35 years of age or older. More than half of them were 50 years or more in age. These age figures have risen to 43 and 58 during the past eight years and death is beginning to take a more rapid toll. Deportation, voluntary return to Japan and departure *668to other states have also contributed to the decline. The number of these aliens decreased 42% between 1920 and 1940 and an ever-increasing loss is inevitable.

Further deductions from this declining total of Japanese aliens must be made, for our purposes, for men and women who are engaged in non-agricultural activities. In 1940 about 58% of them resided in urban centers of 2,500 population or more. Out of 23,208 alien Japanese, fourteen years of age or older, only 10,512 were reported as engaged in farming occupations. While the Alien Land Law has undoubtedly discouraged some from becoming farmers, the number who would normally be non-farmers remains relatively substantial. The farmers, actual and potential, among this declining group are numerically minute.

One other fact should be mentioned in this connection. “Many of these aged and aging Japanese aliens suffered heavy pecuniary losses incident to their evacuation during the war. Suddenly ordered to abandon their properties and their homes, many felt compelled to sell at sacrificial prices. Others lost through unfaithful custodianship of their properties during their absence. Confined to so-called relocation centers, they were cut off for nearly three years from any gainful employment. The result is that many of the well-to-do among them returned to California broken in fortune, with very few years of life left for financial recuperation.” 26

Such is the nature of the group to whom California would deny the right to own and occupy agricultural land. These elderly individuals, who have resided in this country for at least twenty-three years and who are constantly shrinking in number, are said to constitute a menace, a “yellow peril,” to the welfare of California. *669They are said to be encroaching on the agricultural interests of American citizens. They are said to threaten to take over all the rich farm land of California. They are said to be so efficient that Americans cannot compete with them. They are said to be so disloyal and so undesirous of working for the welfare of the state that they must be denied the right to earn a living by farming. The mere statement of these contentions in the context of the actual situation is enough to demonstrate their shallowness and unreality. The existence of a few thousand aging residents, possessing no racial characteristic dangerous to the legitimate interests of California, can hardly justify a racial discrimination of the type here involved.

Fourth. It is stated that Japanese aliens are so efficient in their farming operations and that their living standard is so low that American farmers cannot compete successfully with them. Their right to own and use farm lands must therefore be denied if economic conflicts are to be avoided.

That Japanese immigrants brought with them highly developed techniques of cultivation is not to be denied. In Japan they had learned to obtain the highest possible yield from each narrow strip of soil. And they possessed the willingness and ability to perform the great amount of labor necessary for intensive farming. When they came to California they put their efficient methods into operation. There they pioneered in the production of various crops and reclaimed large areas, developing some of the richest agricultural regions in the state. In performing these tasks, however, the Japanese caused no substantial displacement of American farmers. The areas which they cultivated were, for the most part, deserted or undesired by others.27

*670But eventually, the Japanese concentrated all of their agricultural efforts in the production of vegetables, small fruits and greenhouse products, experience having shown that they could not compete successfully in larger farming endeavors. Within this truck-farm sphere, the Japanese achieved a near-monopoly by their diligence and efficiency. While they had, as we have seen, an infinitesimal proportion of the total farm acreage in California, their 1941 truck crops covered 42% of the state’s acreage devoted to such production.28 In Los Angeles County alone, they raised 64% of the truck crops for processing and 87% of the vegetables for fresh marketing.29 This concentration of effort by the Japanese, many of whom were not aliens, naturally gave strong competition to other producers and forced some of them out of the field.

The success thus achieved through diligence and efficiency, however, does not justify prohibiting the Japanese from owning or using farm lands. Free competition and the survival of the fittest are supposedly vital elements in the American economic structure. And those who are injured by the fair operation of such elements can make no legitimate objection. It would indeed be strange if efficiency in agricultural production were to be considered a rational basis for denying one the right to engage in that production. Certainly from a constitutional standpoint, superiority in efficiency and productivity has never been thought to justify discrimination.

*671Comparatively speaking, the standard of living of the Japanese immigrants may have been low at first. But they have worked to raise their standard despite such obstacles as the Alien Land Law. Like many other first-generation immigrants, the Japanese were often forced to work long hours for low pay. Yet nothing has indicated that, given a fair opportunity, they are incapable of improving their economic status. At the very least, a low standard of living is hardly a justification for a statute which operates to keep that standard low. Something more than its own bootstraps is needed to pull such a law up to the constitutional level.

Fifth. Closely knit with the foregoing are a host of other contentions which make no pretense at concealing racial bigotry and which have been used so successfully by proponents and supporters of the Alien Land Law. These relate to the alleged disloyalty, clannishness, inability to assimilate, racial inferiority and racial undesirability of the Japanese, whether citizens or aliens. The misrepresentations, half-truths and distortions which mark such contentions have been exposed many times and need not be repeated here. See dissenting opinion in Korematsu v. United States, 323 U. S. 214, 236-240. Suffice it to say that factors of this type form no rational basis for a statutory discrimination.

Unquestionably there were and are cultural, linguistic and racial differences between Japanese aliens and native Americans not of Japanese origin or ancestry.30 The physical characteristics of the Japanese, their different customs and habits, their past connections with Japan, their unique family relationships, their Oriental religion, and their extreme efficiency all contributed to the social and economic conflicts which unfortunately developed. But the crucial mistake that was made, the mistake *672that made the attitude of many Americans one of intolerance and bigotry, was the quick assumption that these differences were all racial and unchangeable. From that mistake it was an easy step to charge that the Japanese race was undesirable and that all Japanese persons were unassimilable. And from that mistake flowed the many proposals to deal with the social and economic conflicts on a group or racial basis. It was just such a proposal that became the Alien Land Law.

Hence the basic vice, the constitutional infirmity, of the Alien Land Law is that its discrimination rests upon an unreal racial foundation. It assumes that there is some racial characteristic, common to all Japanese aliens, that makes them unfit to own or use agricultural land in California. There is no such characteristic. None has even been suggested. The arguments in support of the statute make no attempt whatever to discover any true racial factor. They merely represent social and economic antagonisms which have been translated into false racial terms. As such, they cannot form the rationalization necessary to conform the statute to the requirements of the equal protection clause of the Fourteenth Amendment. Accordingly, I believe that the prior decisions of this Court giving sanction to this attempt to legalize racism should be overruled.31

Added to this constitutional defect, of course, is the fact that the Alien Land Law from its inception has proved an embarrassment to the United States Government. This statute has been more than a local regulation of internal affairs. It has overflowed into the realm of foreign policy; it has had direct and unfortunate conse*673quences on this country’s relations with Japan. Drawn on a background of racial animosity, the law was so patent in its discrimination against Japanese aliens as to cause serious antagonism in Japan, even to the point of demands for war against the United States. The situation was so fraught with danger that three Presidents of the United States were forced to intervene in an effort to prevent the Alien Land Law from coming into existence. A Secretary of State made a personal plea that the passage of the law might turn Japan into an unfriendly nation. Even after the law became effective, federal authorities feared that enforcement of its provisions might jeopardize our relations with Japan. That fear was in large part responsible for the substantial non-enforcement of the statute prior to World War II. But the very existence of the law undoubtedly has caused many in Japan to bear ill-feeling toward this country, thus making friendly relations between the two nations that much more difficult.

Moreover, this nation has recently pledged itself, through the United Nations Charter, to promote respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language and religion. The Alien Land Law stands as a barrier to the fulfillment of that national pledge. Its inconsistency with the Charter, which has been duly ratified and adopted by the United States, is but one more reason why the statute must be condemned.

And so in origin, purpose, administration and effect, the Alien Land Law does violence to the high ideals of the Constitution of the United States and the Charter of the United Nations. It is an unhappy facsimile, a disheartening reminder, of the racial policy pursued by those forces of evil whose destruction recently necessitated a devastating war. It is racism in one of its most malignant forms. Fortunately, the majority of the inhabitants of the United *674States, and the majority of those in California,32 reject racism and all of its implications. They recognize that under our Constitution all persons are entitled to the equal protection of the laws without regard to their racial ancestry. Human liberty is in too great a peril today to warrant ignoring that principle in this case. For that reason I believe that the penalty of unconstitutionality should be imposed upon the Alien Land Law.

Mr. Justice Reed,

with whom Mr. Justice Burton joins,

dissenting.

The Court’s opinion assumes arguendo that the California Alien Land Laws are constitutional. As we read the opinion, it holds that the Alien Land Laws of California, as here applied, discriminate in an unconstitutional manner against an American citizen- — a son born in the United States to resident parents of Japanese nationality. From this holding we dissent.

California, through an exercise of the police power, which. has been repeatedly approved by us,1 has prohibited ownership of land within the state by aliens ineligible for citizenship.2 Recognizing that the benefits flowing from ownership can be enjoyed through subter*675fuges by persons not the holders of legal or equitable title, California has proscribed as to the state every “conveyance . . . made with intent to prevent, evade or avoid escheat. . . ." 3 Transfers of real property made with *676this intent “shall be void as to the state and the interest thereby conveyed or sought to be conveyed shall escheat to the state as of the date of such transfer . . . To assist in the proof of “intent to prevent, evade or avoid escheat,” the state was given the benefit of a “prima facie presumption that the conveyance is made with such intent ...” where the state proves: “The taking of the property in the name of a person other than [an alien who cannot hold land] ... if the consideration is paid or agreed or understood to be paid by an alien [who cannot hold land] . . . .” Thus the state has made void as to it, two substantive acts: (1) ownership of land by ineligible aliens and (2) transfers made to avoid by indirection the prohibition against ownership of land by ineligible aliens. The statutory scheme recognizes that the purpose of the Alien Land Laws cannot be achieved unless attempts to avoid the basic prohibition of the law are penalized. Any law aimed at the prevention of own*677ership by ineligible aliens, which did not penalize both the act of owning and the act of attempting to enjoy the rights of ownership through a cloak, would be defective and readily avoided.

The trial court found that the transfers challenged by California in this case were made with an “intent to prevent, evade or avoid escheat”; in so finding the court considered the statutory presumption together with the other evidence detailed in the Court’s opinion and concluded that the defendants had not met the statutory burden of proof imposed by § 9. The Supreme Court of California affirmed.

We do not have in this review a balancing of constitutional rights; on one hand, the right of California to exclude ineligible aliens from land ownership and, on the other, the right of their citizen sons to hold land. California does not deny the right to own land in California to a citizen son of an ineligible alien. If that citizen obtains the land in any way not made void as a violation of law, he may hold it. Under § 9 the land escheats because of the father’s violation of law before it reaches the son. The denial to the father by California of the privilege of land ownership is not challenged. Neither is the right to protect that denial by an escheat of the land on the father’s attempt to avoid the limitations of the California land law. Actually, the only problem is whether the presumption arising from the payment of money for land by the ineligible father denies equal protection of the law to the son. We understand the majority opinion to hold that presumption (a) of § 9, with its so-called ancillary inferences because of the son’s minority and the father’s failure to file guardianship reports or testify, as here applied, discriminates unconstitutionally against Fred Oyama. If that presumption, with the inferences, had been held constitutional, apparently the Court would have affirmed the opinion below because the issue then remain*678ing would have been the correctness of the findings of fact by the trial judge. No one would suggest that the correctness of those findings could be challenged here; the resolution of disputed issues of fact in non-constitutional matters is for the state judicial system. This Court does not intimate that it disagrees with California's factual conclusion. Its ruling is based on the “cumulative effect” of the “statutory presumption” and “two ancillary inferences.” On remand to the courts of California, the case may be tried again. On that retrial all of the evidence admitted at the first trial may be submitted to the triers of fact for no one says that the items of evidence, including the father’s payment of consideration, introduced by the state are inadmissible. A major vice of the state’s application of the law apparently was the reliance upon a presumption and inferences that this Court holds deny equal protection. If an intent to “prevent, evade or avoid es-cheat” is found on the same evidence, an escheat will again take place.

Presumption (a) of § 9 has been construed by the California Supreme Court: “That if the consideration for the purchase of the real property is paid by an ineligible alien and the title is taken in the name of a third person, it will be presumed, in the absence of other evidence to the contrary, that it was the intent of both the alien and the grantee to ‘prevent, evade or avoid’ the escheat at law. . . . But the presumption is recognized as disputable and as disappearing in the face of contrary evidence of sufficient strength to meet our rule on conflict of testimony.”4 We do not interpret the opinion of our Brethren to say that the presumption, if valid, is irrebut*679table; or, to put the matter differently, that the effect of the presumption, if valid, is to make it inevitable that all gifts of real property by an alien-Japanese father to his child can be successfully escheated by the state. As the cases prove, an alien-Japanese father can give California lands to his son in spite of the presumption.5 The effect of the presumption, if valid, is rather to place a burden, an' “onerous burden” to adopt the phrase of the majority opinion, upon all grantees who take land under those conditions set forth in § 9.

The issue in this case, therefore, is neither the validity of the California prohibition against the ownership of agricultural land by a person ineligible to become an American citizen, nor the validity of a law, § 9, that an attempt to evade that prohibition shall be penalized by escheat. The validity of both of these provisions is unchallenged by this Court’s opinion. The issue here is the validity of the presumption that when an ineligible person pays the consideration for land conveyed to an eligible person, there is a prima facie presumption that the conveyance is made to avoid the prohibited ownership. The essence of the argument in the opinion is this: When an alien-English father purchases land from a third party and puts title in his child, acceptance by the child and delivery of the deed are presumed; however, if an alien-Japanese father engages in the same transaction, his child must meet the “onerous burden” of the presumption; therefore, Fred Johnson and Fred Oyama are not treated equally by the laws of California and Fred Oyama is denied equal protection by those laws. These facts are accurate; the flaw is that the conclusion does not follow. California has, as against the state, made illegal a particular class of transactions: transfers made with the intent to evade escheat of lands. Anyone, no matter *680what his racial origin may be, who as a grantee is a party to a sale of land which the state attacks as being within the proscribed class must overcome the presumption of § 9 to establish the legality of the transfer. This presumption operates with a mechanical impartiality. Whoever the grantee in a transfer questioned by the state is, be he Fred Johnson or Fred Oyama, he must bear the “onerous burden”; he must bear it not because of descent or nationality but because he has been a party to a transaction which the state challenges as illegal under an admittedly valid law.

As we see the Court’s argument, it focuses attention upon what it contends are two parallel situations: the gift of an English father to a citizen son and the gift of a Japanese father to a citizen son. Upon examination of the relevant state laws, it concludes that the son of the Japanese father is placed in a position less advantageous than that of the son of an English father. That is so, but for our purposes it is the reason for the result, and not the result itself, that is important. The legal positions of the two sons are different only because the situations are not parallel. The Japanese father and his citizen son are parties to an illegal transaction if the land was transferred with the “intent to prevent, evade or avoid escheat”; as an English father is not prevented from holding real property, his gift cannot be challenged on that ground by the state. The capacities of the donors are different and it is this difference, and nothing else, which raises in one case and fails to raise in the other, the presumption complained of by Oyama.6 It is not a denial of equal protection for a state to classify transac*681tions readily leading to law evasions differently from those without such a possibility. Such classification is permissible.

Let us test the Court’s reasoning by applying it to a different set of facts. For purposes of illustration, we put these cases: (1) a solvent father purchases land from a third party and puts the title in his son; and (2) an insolvent father purchases land from a third party and puts the title in his son. In example (2), the creditors of the father in an action against the son to subject the land to the satisfaction of their claims against the father, can raise a prima facie presumption that the transfer was fraudulent as to them by proving that the transaction took place during the period of the father’s insolvency.7 Here the son of the insolvent father bears an “onerous burden” to which the son of a solvent father is not subjected; he bears this burden because he has been a party to a transaction which creditors challenge as void*682able. The disability of the father taints the son’s right and, therefore, he is placed in a position less advantageous than that of the son of a solvent father. Would it be reasonable to say that the son of the insolvent father has been denied “equal protection” and, consequently, the presumption is unconstitutional? No one would so contend. The inequality between the sons of eligible and ineligible landowners does not seem to us to differ.

As we understand petitioners’ argument in briefs and before this Court, the petitioners in their discussion of the denial of equal protection to the citizen son depended solely upon the invalidity of the presumption arising from the payment of the money by the father. This Court’s opinion recognizes that petitioners’ argument includes discrimination, amounting to a lack of equal protection, arising (1) from the requirement of § 9 that the son must take the burden of proving affirmatively the bona fides of the gift from the father; (2) because the gift to the infant son of a Japanese is presumed invalid while the gift to an infant son of an eligible alien is presumed valid; (3) because the Court took into consideration the father’s omission to file guardian reports after the transfer. Normally, the Court says, a guardian’s subsequent improper conduct would not affect the validity of a gift to a child. Because of what is deemed additional burdens thus placed upon the son, the Court concludes that:

“The cumulative effect, we believe, was clearly to discriminate against Fred Oyama. . . .

*683"The only basis for this discrimination against an American citizen, moreover, was the fact that his father was Japanese and not American, Russian, Chinese, or English.”

These discriminations, if such they are, seem to us mere elaborations of the central theory that the challenged presumption of § 9 is unconstitutional as a denial of equal protection. It is of course true that the son of a citizen of Japan cannot receive a gift from an ineligible father as readily as a son of an alien entitled to naturalization but again such a classification is entirely reasonable when we once assume that the State of California has a right to prohibit the ownership of California land directly or indirectly by a Japanese.

Discrimination in the sense of placing more burdens upon some than upon others is not in itself unconstitutional. If all types of discrimination were unconstitutional, our society would be incapable of legislation upon many important and vital questions. All reasonable classification puts its subjects into different categories where they may have advantages or disadvantages that flow from their positions.8 The grouping of all those who take land *684as grantees, in a transaction in which an ineligible alien pays the consideration, in a class subject to the statutory presumption of § 9 and other inferences which are reasonably related to the transfer, should not be struck down as unconstitutional. Unless the California Land Laws are to be held unconstitutional, we think the presumption and its resulting effects must be accepted as legal.

Mr. Justice Jackson,

dissenting.

I am unable to see how this Court logically can set aside this judgment unless it is prepared to invalidate the California Alien Land Laws, on which it is based. If this judgment of escheat seems harsh as to the Oyamas, it is only because it faithfully carries out a legislative policy, the validity of which this Court does not question.

The State’s argument is as simple as this: If California has power to forbid certain aliens to own its lands, it must have incidental power to prevent evasion of that prohibition by use of an infant’s name to cloak a forbidden ownership. If it has the right to protect itself against such evasion, its courts must have the right to decide the question of fact whether a given transaction constitutes an evasion. And if its courts have to apply the Act, the State has power to aid them by creating reasonable presumptions. I cannot find that this reasoning is defective or that it fails to support the judgment below, however little I like the result.

In this case the elder Oyama arranged to acquire some six acres of agricultural lands. He could not take title in his own name because of his classification as an ineligible alien, and hence one forbidden to acquire such lands. *685Title was taken in the name of Fred, his son. When this was happening Fred was six years old. He had no funds and the entire consideration was paid by the father. We can hardly criticize the state court for concluding, especially in absence of any proof to the contrary, that a 6-year-old child did not decide for himself to go into agriculture, or that these particular lands would be suitable for him if he did. The lands would require continuous cultivation if they were not to revert to a state of nature and it was not unreasonable to doubt that the 6-year-old son could supply either the manual labor or the oversight necessary to preserve the investment or to make it yield a return. Moreover, the return from the lands, even if applied to the support of young Oyama, operated to reduce the parental obligation. In short, there is no proof that this 6-year-old child contributed to the purchase of these lands either funds, judgment or desire. The California court considered that his name was used in the transaction without the infant’s understanding consent. Even if there were no presumption created by statute, I should find it difficult to say that this conclusion is an unreasonable one.

Nor do I think we could say that it would offend the Federal Constitution if the State, to make admittedly constitutional legislation effective, should go so far as to create a presumption that where the consideration is paid by an ineligible father and the title is taken in the name of his infant son, it is to be deemed the father’s purchase. I do not understand the Court to say that this is a farfetched or unreasonable inference from such facts. It seems to say, however, that a presumption, which it construes in this way, is invalid because it operates only against sons of persons ineligible for citizenship. If even such a presumption strikes only a limited class, it is because the basic prohibitions of the Act strike only a lim*686ited class. If the State can validly classify certain Asiatics as a separate class for exclusion from land ownership, 1 do not see why it could not do so for purposes of a presumption.

But the California statute has not made a presumption applicable only against sons of the excluded Asiatics. The statutory presumption, so far as it applies here, is cast in this language:

“A prima facie presumption that the conveyance is made with such intent shall arise upon proof of any of the following group of facts:

“(a) The taking of the property in the name of a person other than the persons mentioned in Section 2 hereof [the excluded alien] if the consideration is paid or agreed or understood to be paid by an alien mentioned in Section 2 hereof

The same presumption would be raised by the statute against any American citizen or any alien or any person whatsoever if he received the title and any ineligible alien paid the consideration. The Court’s decision is that the presumption denies Ered Oyama the equal protection of the laws because grantees are treated differently if they are sons of ineligible aliens than if they are the sons of others. This Act makes no such classification. The presumption does not apply to him because he is the son of an ineligible father — it applies because he is a grantee of lands paid for by an ineligible alien. The Court itself reads this father and son classification into the Act, quite unjustified by its words. It is true that in this case the relationship of father and son also exists, but that is not the relationship that calls the presumption into operation.

The Act classifies grantees only as those whose lands have been paid for by an ineligible alien and those whose lands have not. Every member of the class whose lands have been paid for by such an alien must overcome the *687presumption. Every grantee similarly situated is saddled by the identical burden imposed on Fred Oyama whether he is the son of a Japanese, the son of an American citizen or the son of an eligible alien. Thus there is no discrimination apparent on its face in the provision of the statute which the Court strikes down.

But it is said that a discrimination is latent in this presumption from the fact that other fathers may give land to their sons and no presumption would apply. That there is a discrimination in this situation no one will deny ; it is the fundamental one, which the Court does not touch, by which the elder Oyama could not, directly or indirectly, acquire this land while many other fathers could. The presumption, of course, would not apply if the consideration were paid by a person to whom the statute does not apply. But Fred Oyama, the son, is in no different position as to the presumption than the son of any other person whatsoever. If a citizen’s son received this land from Oyama, Senior under the same conditions, he would be confronted with the same presumption and escheat. If the Oyama lad, on the other hand, received this land from a citizen, he would take it as free of presumption and escheat as any California lad could do. The only discrimination which prejudices young Oyama is the one which makes his father ineligible to own land or be a donor of it. That discrimination is passed by as valid, and one that seems to me wholly fictitious is first erected by this Court and then struck down.

I do not find anything in the Federal Constitution which authorizes us to strip a State of its power to enact reasonable presumptions which put the burden of producing evidence upon the only person who possesses it. This presumption is not made conclusive and the California courts have sometimes held it to be overcome by evidence. In this case, if there is any explanation of this transaction other than that Oyama used his son’s *688name to acquire beneficial interests for himself which he was forbidden to acquire in his own name, no one knows those facts better than the senior Oyama. He did not take the witness stand. He left unrebutted both the presumption of the statute and the inference that most reasonable persons, even in the absence of a statute, would draw from the facts.

This Court also says that California used the default of the father, in failing to file accountings as trustee for the infant, as evidence against the infant and seems to imply this was an unconstitutional procedure. As we have seen, this infant was of such tender years that he had neither ideas nor will nor understanding about the purchase. The only person’s intention which would stamp this transaction as one in good faith or as an evasion of the statute was the intention of the father. He was the only actor; he gave the land to the son and accepted on his behalf, so we are told. Certainly it was competent for the California courts, as bearing on his intentions and good faith, to receive evidence of the fact that the sole actor did not consider himself under an obligation to account as the law would require him to do if the property really belonged to an infant and he were a trustee.

While I think that California has pursued a policy of unnecessary severity by which the Oyamas lose both land and investment, I do not see how this Court, while conceding the State’s right to keep the policy on its books, can strip the State of the right to make its Act effective. What we seem to be holding is that while the State has power to exclude the alien from land ownership, the alien has the constitutional right to nullify the policy by a device we would be prompt to condemn if it were used to evade a federal statute.

A majority of the Court agrees that the ground assigned by the Court’s opinion is sufficient to decide this litigation. *689It does not therefore seem necessary or helpful to enter into a discussion of the constitutionality of the Alien Land Laws themselves.

PER CURIAM.

This appeal comes to this court following the decision of the Supreme Court in United States v. Hohri, 482 U.S. -, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987) (vacating judgment of District of Columbia Circuit and remanding with instructions to transfer to this court pursuant to 28 U.S.C. § 1631 (1982)). In Hohri, the Supreme Court held that a case which presents both a nontax claim under the “Little Tucker Act,” 28 U.S.C. § 1346(a)(2) (1982), and a claim under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1982), as here, may be appealed only to the Court of Appeals for the Federal Circuit.

The appeal here is from the judgment of the United States District Court for the District of Columbia, 586 F.Supp. 769 (D.D.C.1984) (Oberdorfer, J.), dismissing the claims of nineteen individuals and an organization of Japanese-Americans which sought damages and declaratory relief for injuries resulting from the internment of Japanese-Americans during World War II. The district court held, inter alia, that appellants’ claims were barred by applicable statutes of limitations.

Each of the numerous issues raised to this court is fully addressed in the opinion of Judge Oberdorfer. After a meticulous review of that opinion, we are unpersuaded of any error. We see no need to restate or elaborate on the district court’s careful and scholarly analysis, nor to burden appellants with further delay. Accordingly, we affirm for the reasons stated in the district court opinion.

AFFIRMED.

BALDWIN, Senior Circuit

Judge,

dissenting-in-part.

The majority adopts, in toto, the District Court’s opinion, Hohri v. United States, *780586 F.Supp. 769 (D.D.C.1984). Although I agree with much of what the trial judge says, I respectfully dissent because I believe he erred in concluding that appellants’ takings claims are barred by the statute of limitations.

Appellants’ claims are dismissed under rule 12(b)(1), for lack of subject matter jurisdiction. In reviewing a dismissal under this rule, “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Even if it “appear[s] on the face of the pleadings that a recovery is very remote and unlikely,” id., the motion should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Thus, in reviewing the trial judge’s decision, this court is obliged to review independently his application of the law to the undisputed facts in the historical record and the pleadings.1

The trial judge correctly determined that appellants had stated a takings claim, and that the portion of appellants’ takings claims concerning constitutional rights other than property rights were unfounded. 586 F.Supp. at 783. I believe, however, that the trial judge incorrectly decided that appellants’ remaining takings claims were barred by the applicable six year statute of limitations. 28 U.S.C. § 2401(a) (1982).2 The trial judge rejected appellants’ contention that the statute of limitations was tolled as a result of the government’s fraudulent concealment of information relating to the military necessity for relocating and interning Japanese-Americans during World War II. 586 F.Supp. at 786-91. Instead, he found that appellants failed to exercise due diligence in asserting their claims. Id. at 790-91. He found that a reasonably diligent plaintiff would have discovered sufficient evidence to state a claim as early as the late 1940’s. Id. I cannot agree that the government’s fraudulent concealment of vital information did not toll the statute.

The statute of limitations to which appellants’ claims are subject is enumerated in 28 U.S.C. § 2401(a) (1982):

Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. [Emphasis added]

The question, therefore, is when appellants’ right of action first “accrued.” The trial judge decided that appellants’ claims accrued, at the latest, some time in the late 1940’s, following publication of the Ringle, Fly, and Hoover documents. 586 F.Supp. at 790.

As a general rule, a statute of limitations is tolled where a defendant fraudulently or deliberately conceals material facts relevant to a plaintiff’s claim, Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946); Korody-Colyer Corp. v. General Motors Corp., 828 F.2d 1572, 1576-78 (Fed.Cir.1987); cf. Albert v. Kevex Corp., 729 F.2d 757, 763 (Fed.Cir.1984), provided the plaintiff could not, through the exercise of due diligence, have discovered the basis of the claim. Holmberg, 327 U.S. at 397, 66 S.Ct. at 585. This doctrine is as applicable to the United States as to any defendant. See Welcker v. United States, 752 F.2d 1577, 1580 (Fed.Cir.1985); Japanese War Notes Claimants Ass’n of the Philippines, Inc. v. United States, 373 F.2d 356, 178 Ct.Cl. 630, cert. denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967). As the trial judge pointed *781out, 586 F.Supp. at 787-88, the parties do not dispute that appellee concealed various intelligence reports which contradicted the claim of military necessity raised in Hira-bayashi and Korematsu. The parties do dispute, however, the effect this concealment had on the accrual of appellants’ claims, and the duration of the effective concealment of sufficient matter to delay such accrual.

Appellants argue that their claims did not accrue until the completion of work by the Commission on Wartime Relocation and Internment of Civilians (CWRIC), established by Pub.L. No. 96-317, 94 Stat. 964, 96th Cong., 2d Sess. (1980), and the publication of the CWRIC Report of its investigations entitled Personal Justice Denied in 1982. Appellants’ position is that the Supreme Court erected an insurmountable legal barrier with its decisions in Hirabaya-shi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) and Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), when it upheld the internment policy in deference to the military. This barrier could be removed they assert only by an affirmative statement by one of the “war-making” branches that military necessity did not require the internment policy. They argue that the creation of CWRIC and the publication of Personal Justice Denied is the first event constituting such a statement. This conclusion is premised upon the disclosure in Personal Justice Denied that the government fraudulently concealed significant and vital information concerning its role in the Kore-matsu and Hirabayashi decisions. Appellants say that this fraudulent behavior precluded them from seeking relief in the courts because the level of deference shown by the Supreme Court in Koremat-su and Hirabayashi to military decision making rendered any claim virtually frivolous. Thus, the statute of limitations should, they assert, be tolled until 1980 or. 1982.

In opposition, appellee asserts that appellants’ claims accrued at the time of the taking because that is when appellants knew of the injury and its cause. In the alternative, appellee argues appellants’ claims accrued at one of several later dates: (1) when the Ringle, Fly, and Hoover documents first appeared; (2) when other books about the interning of Japanese-Americans appeared in the 1950’s; or (3) at the latest, when President Ford signed Presidential Proclamation 4417 in 1976 declaring the incident a “mistake.” The basis for this position is that the facts concealed concerned a potential affirmative defense of military necessity and not the appellants’ cause of action. This is, as the trial judge realized, a mere technical distinction, 586 F.Supp. at 787, especially where, as here, the Supreme Court sanctioned this affirmative defense as a bar to cases questioning the propriety of the internment policy. Korematsu, 323 U.S. at 218, 65 S.Ct. at 195, quoting Hirabayashi, 320 U.S. at 99, 63 S.Ct. at 1385, (“We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.”).3 Appellee’s assessment of the impact of Hirabayashi and Korematsu is a faulty one. These cases had the effect of validating the exclusion orders in toto as compelled by military necessity. 323 U.S. at 218, 65 S.Ct. at 195. Appellee’s suggestion that the holding in Ex Parte Kawato, 317 U.S. 69, 78, 63 S.Ct. 115, 120, 87 L.Ed. 58 (1942) permitting nonresident aliens of Japanese ancestry to prosecute civil suits opened the court doors is misplaced in this case.4 The *782courthouse door was not closed to these appellants in the manner at issue in Kawa-to. Rather, here the courts were effectively closed by the Supreme Court to evacuated and interned Japanese-Americans to challenge the validity of the exclusion orders. The Supreme Court’s decision to defer to military authorities was constitutionally based. Even though it stated in Kore-matsu that racial classifications were “immediately suspect,” the Court left little room for judicial evaluation of the propriety of the orders when it agreed with its earlier position in Hirabayashi that the authority vested in the military by the exclusion orders was “not wholly beyond the limits of the Constitution,” 320 U.S. at 101-02, 63 S.Ct. at 1386, and that “Congress, and the military authorities acting with its authorization, have constitutional power to appraise the danger in the light of facts of public notoriety.” 323 U.S. at 218. Once the courthouse doors were effectively closed, it did not matter that appellants knew of the existence of their injury and the identity of the defendant.5 Appellants may have been on notice to inquire, but this knowledge left them in no better position where the available information and Supreme Court decisions precluded them from filing a good faith claim.

This court’s decisions in Welcker, supra, Braude v. U.S., 585 F.2d 1049, 218 Cl.Ct. 270 (1978), and Japanese War Notes Claimants Ass’n, supra, are not to the contrary. None of those cases included a prior judicial determination which resulted from the defendant’s fraudulent conduct. These appellants’ claims were effectively foreclosed by Hirabayashi and Korematsu as a direct result of appellee's conduct.

Where a defendant fraudulently conceals information, and that concealment has the effect of dooming a plaintiffs claims at the outset, the statute of limitations should be tolled until such time as the plaintiff discovers or should have discovered, through due diligence, the facts concealed. Under this standard, it would not matter whether the information concealed went to a claim or an affirmative defense. If it can be said that a plaintiff’s claim would not survive a motion to dismiss on the pleadings because the defendant fraudulently concealed information relevant to an essential element of the claim, I would find the statute tolled until such time as a plaintiff, exercising due diligence, could discover the information.

Appellee’s actions during the War clearly constituted fraudulent concealment. The district court found, based on the pleadings and the historical evidence, that appellee did, in fact, conceal critical evidence during the prosecution of Hirabayashi and Kore-matsu before the Supreme Court. 586 F.Supp. at 787-88. But the court found that once the Hoover, Fly, and Ringle documents, all objects of concealment, were leaked, the statute began to run. Id. I disagree that these documents were sufficient to rebut the presumption of military deference provided by the Supreme Court in Hirabayashi and Korematsu. These documents constituted only a small portion of the information concealed, and by no means the most important information.

The Supreme Court was not without contradictory assertions in Hirabayashi and Korematsu. The Japanese-American Citizens League (JACL) included in its amicus brief in Korematsu statements by the Attorney General and the Secretary of War (and even by President Roosevelt himself) made in 1941 and 1942 that indicated the west coast was not under any serious threat of invasion. JACL Brief at 82-87. Thus, in deferring to the military evaluation of the situation, the Court must have *783recognized that the military judgment was one reached after weighing the relevant alternatives. The leaked documents merely provided opinions of certain military intelligence officers. It is likely that the Court would have been unwilling to decide whether these reports were sufficient to rebut the decision reached where it was represented that no other information existed to the contrary. The Court specifically refused to delve into the military’s reasoning. Korematsu, 323 U.S. 218-19, 65 S.Ct. at 195. It is equally likely that, with the information available, any complaint filed by appellants would have resulted in dismissal because of the Supreme Court’s mandated deference to the military authorities on the issue. It does not, to me, require much imagination to realize that without the military necessity argument the Supreme Court would not have permitted the exclusion and internment orders to go forward. Thus, the leaking of the Fly, Ringle, and Hoover documents should not have been held sufficient to start the clock, and the statute should have remained tolled until a later date.

The statute having been tolled by appellee’s fraudulent concealment, the question remaining is when did it begin to run? The traditional standard applied by this court is that appellants “must either show that [appellee] has concealed its acts with the result that [appellants were] unaware of their existence or [appellants] must show that [their] injury was ‘inherently unknowable’ at the accrual date.” Welcker, 752 F.2d at 1580, quoting Japanese War Notes Claimants Ass’n, 373 F.2d at 359. Generally, it would be sufficient that appellants were on notice to inquire that they had a potential claim, id., and it is “irrelevant for limitations purposes that [appellants did not] learn[ ] until later that [they] had further support for [their] decision.” 752 F.2d at 1582 (emphasis in original).

Strict application of this rule without regard for appellants’ peculiar circumstance would yield the result reached by the trial court and majority. Appellants were readily aware that their property had been taken at the time they were excluded and interned. There was no question as to who had committed the acts against them. According to the trial court, the only obstacle in their way was a pair of Supreme Court decisions upholding appellee’s actions and granting complete deference to the military’s judgment. Under this logic, appellants, had they acted with due diligence, should have filed their claims in the forties or fifties. At that time, however, with the information available, they were destined for dismissal on the pleadings.

Application of this rule in appellants’ situation is, I believe, inappropriate and inequitable. Instead, I would judge appellants’ diligence according to whether they acted reasonably under the circumstances. Our decisions suggest holding that appellants had knowledge of their claims when they were on notice to inquire about their potential claims. Welcker, supra. In a situation such as this, this standard should be applied in such a way that appellants are not barred until such time as they were able to obtain sufficient knowledge of the factual basis of their claims to allow them to file a good faith complaint.6 Before the statute could begin to run against appellants, there had to be sufficient evidence in the public domain to permit appellants to state a claim. In the peculiar facts of this case, this means that appellants needed enough facts to potentially rebut the Supreme Court’s presumption of deference. Thus, the evidence concealed by appellee must have been sufficient to provide appel*784lants with enough facts to make a good faith determination that they could potentially rebut this presumption. The leaked documents, as noted earlier, could not suffice to defeat the presumption erected. It was not until CWRIC exposed and declassified a wealth of intelligence information that appellants became aware of the existence of adequate facts indicating that sufficient concealment had occurred to cast sincere doubt upon the Supreme Court’s Hira-bayashi and Korematsu holdings.

The additional information was available to the Justice Department at the time it prepared the briefs in those cases. Appel-lee did not present evidence indicating that appellants should have, or could have, known of the existence of this additional information solely because of the presumed knowledge of the Ringle, Fly, and Hoover documents. There were only two means for appellants to obtain this information: (1) by Executive declassification;7 or (2) by Act of Congress. In this case, the latter occurred before the former.

The act creating CWRIC, Pub.L. No. 96-317, 94 Stat. 964 (1980) supports this reasoning. Section 2(a)(3) states that “no sufficient inquiry has been made” into the exclusion and internment. Section 2(b)(1) says one of the purposes of the Act was to “review the facts and circumstances surrounding” the exclusion and internment. This was the first intimation by any branch of the government that the Court’s deference to the military was legally erroneous and possibly subject to attack. Prior statements simply noted the immorality of the actions. See, e.g., Presidential Proclamation No. 4417 (1976); H.R.Rep. No. 732, 80th Cong., 1st Sess. (1947) (Report accompanying the American-Japanese Evacuation Claims Act stating that the “only clear recourse” for the victims was through private bills, suggesting that the evacuees could not state an actionable claim); S.Rep. No. 601, 82d Cong., 1st Sess. (1951) and H.R.Rep. No. 496, 82nd Cong., 1st Sess. (1951) (amendments to same act restating same view); H.R.Rep. No. 1809, 84th Cong., 2d Sess. (1956) (amendments to same act referencing earlier legislative history). In fact, the reports mentioned at various points that Congress did not believe appellants suffered any actionable wrongs. See H.R.Rep. No. 496, supra, at 2-3.

The Attorney General concurred in this assessment. As the official charged with administering the American-Japanese Evacuation Claims Act, the Attorney General in the case of Claim of Mary Sogawa, 1 Adjudications of the Att’y Gen. 126 (Dec. 20, 1950) stated that his decision to reject a claim for certain expenses of preparing for and returning after the evacuation was premised on his belief that the Act did not acknowledge that the evacuees suffered an actionable wrong. His opinion stated that the Act’s legislative history made it clear that the Act “was intended to be an act of bounty,” and that “in the teeth of the decision of the Supreme Court in the Korematsu case” the evacuation could not be characterized as “constitut[ing] a legal wrong.” Id. at 134 (emphasis added).

These Congressional and Executive statements evince a general assumption that the Hirabayashi and Korematsu decisions barred civil as well as criminal actions by appellants. Thus, it is difficult for me to agree with the trial court’s result and the majority’s affirmance which suggest that appellants should not have been deterred by those decisions from filing a good faith complaint. Rather, if the prevailing presumption in the war making branches was the belief that appellants did not have a cognizable claim, it is eminently reasonable that appellants felt the same way. The issue should be, as I suggested earlier, whether appellants were reasonable in their determination that they could not state a cognizable claim, not whether appellants were absolutely certain they had no claim. During a time of heightened awareness of unsubstantiated claims, I am hesitant to impose upon appellants a standard stiffer than reasonableness. I would hold, *785therefore, that appellants acted reasonably in failing to bring their claims with only the Ringle, Fly, and Hoover documents to support their position, and no clear indication that further information had been fraudulently concealed from the Supreme Court. I would find that the statute of limitations for appellants’ takings claims was tolled until the issuance of the CWRIC Report, Personal Justice Denied, or, at the earliest, at the time when the information in the Report became public.

Having found appellants’ takings claim timely, I would, nonetheless, not permit all takings claims. Specifically, I would reject claims brought by members of appellants’ class who earlier recovered under the American-Japanese Claims Act, 50 U.S.C. App. §§ 1981-1987 (1982). Section 1984(d) of that Act states that “the payment of an award shall be final and conclusive for all purposes, * * * and shall be a full discharge of the United States and all of its officers, agents, servants, and employees with respect to all claims arising out of same subject matter.” (Emphasis added). The subject matter to which the provision refers is the “evacuation or exclusion” of Japanese-Americans. Id. at § 1981(a). This statute presented appellants with a clear choice, litigation of their rights versus the “bounty” offered.

It is unnecessary to consider whether this statute may have constituted an exclusive remedy for the wrongs committed here, because the language of § 1984(d) specifically states that “full discharge” occurs only upon “payment of an award.” Thus, it would be unreasonable to restrict access to the federal courts for those appellants who did not receive a payment under that Act. The clear language of the statute indicates that merely bringing a claim is not enough to execute a full discharge, thus it also is unnecessary to consider whether Congress acted beyond its power in forcing appellants to choose between a court case and an administrative “settlement.” Clearly Congress’ offer was made in good faith, and thus appellee should not be estopped from raising § 1984(d) against those appellants who received a “payment” under the Act. See Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 61, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984) (assertion of estoppel against the government requires, at a minimum, a demonstration “that the traditional elements of an estoppel are present,” saving for a later time whether estoppel can ever apply to the government). However, the remaining appellants should be permitted to raise their takings claims.

Our nation has evolved tremendously since the incidents which gave rise to this action occurred. So, too, our government institutions have matured since that time. Unfortunately, we have not yet erased the possibility of abuse of individual citizens or groups of citizens. Fortunately, we have adequate means in our laws and our Constitution for those harmed by governmental actions to seek recompense in the courts. While the statute of limitations seeks justly to protect the United States from endless claims that may be age old, it does not behoove our society to sanction the perpetration of fraud by the sovereign. Appellants are, I believe, entitled to their day in court to attempt to prove their allegations that their property was taken, and that they are entitled to relief for that taking. Whether they will succeed is irrelevant at this point. In my opinion, appellee’s actions before this nation’s highest Court, and its long concealment of the factual basis of appellants’ claims entitles appellants to the opportunity to try. I would therefore reverse that portion of the trial judge’s opinion dismissing the takings clause claims for those appellants who did not receive payment under the American-Japanese Evacuation Claims Act.