This op-ed was published on Monday, March 23, 2015 in the Daily Journal.
In Walker v. Sons of Confederate Veterans, due for oral argument before the U.S. Supreme Court Monday, the respondent will argue that a private organization should be able to have a specialty license plate with the Confederate battle flag on it. On the other side, the Texas Department of Motor Vehicles Board contends that license plates constitute government speech because the state government controls their production. The state, therefore, may choose not to approve a Confederate flag, which many Texans find offensive, as part of a specialty license plate design.
In spite of the emotional appeal of banning offensive symbols, it is important to consider the wider, unintended consequences of a decision allowing Texas to censor the image of the Confederate flag, however repugnant some may find it. Specifically, discourse on public colleges and universities is likely to suffer if the justices decide that specialty license plates are a form of government speech and that Texas may, therefore, censor license plate messages with which it does not want to associate.
The connection between specialty license plates and college campuses may not be readily apparent, but every day colleges and universities creatively abuse their authority over student and faculty activities to stifle speech they do not like. And restrictions on intellectual discourse on campus harm everyone. As the Supreme Court has often affirmed, “Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).
Expanding the definition of government speech would give administrators a new tool of censorship. For instance, two students from Iowa State University sued administrators who rewrote their trademark guidelines to prohibit promotion of “dangerous” and “unhealthy” behaviors. (My organization, the Foundation for Individual Rights in Education, is supporting the students.)
In Gerlich v. Leath, 14-264 (S.D. Iowa, filed July 1, 2014), administrators abruptly changed university rules to stop a student group, NORML-ISU, from producing and selling T-shirts advocating the legalization of marijuana. (NORML-ISU is a chapter of the National Organization for the Reform of Marijuana Laws.) Because the university had trademarked “ISU,” it claimed the right to censor the group’s message based on its ability to control the use of its marks. In denying the university’s motion to dismiss, the judge rejected ISU’s “creative argument” that the case was a trademark dispute rather than a constitutional question.
The judge was not as dismissive, however, of ISU’s argument that the T-shirt was “government speech” that the university could silence so people would not mistakenly conclude that the university endorsed marijuana legalization. Although he denied ISU’s motion to dismiss, the judge noted the pending decision in Confederate Veterans.
For the time being, ISU can argue that if it is “forced” to associate its initials with those advocating marijuana legalization, the public will think that the university is endorsing that position — even though the Supreme Court has concluded that universities do not speak for themselves or endorse particular messages when they fund student groups. Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 834 (1995).
ISU has dozens of student groups, including the Ethical Eating Club and the Meat Science Club; the Atheist and Agnostic Society, Campus Christian Fellowship, Hindu Yuva and ISU Hillel. All of these groups have some variation of Iowa State University in their official names or logos; no reasonable person would think that the university endorsed all those conflicting viewpoints. And the less mainstream the message, the less likely it is that tolerance would be mistaken for approval: ISU has allowed its BDSM club to use the ISU moniker, but it is hardly rational to think that the university itself is promoting specific sex practices.
Texas has approved some 300 specialty license plates representing a wide range of viewpoints. Texans can opt for a plate with the Ford Motor Company logo; surely people would not interpret that as a command from the state of Texas not to buy General Motors cars. And why would Texas favor Michigan State University or Indiana University — both of which have Texas specialty plates — over its own state schools? Similarly, there’s no reason why people would see the Sons of Confederate Veterans license plate and think Texas supports segregation.
Since it does not make sense to conclude that the Texas government is speaking for itself on license plates, it must regulate the speech of its citizens on license plates in a viewpoint-neutral way. Under the First Amendment, no state entity is permitted to decide which ideas are worth promoting and which are better off being suppressed, especially because state entities have a strong tendency decide that ideas that threaten its power, prestige, or governmental interests are too dangerous to be allowed to circulate freely. This is particularly important at a public college because “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.” Keyishian v. Bd. of Regents of Univ. of State of N. Y., 385 U.S. 589, 603 (1967).
In particular, higher education administrators routinely take advantage of the fact that students are not experts in First Amendment law to twist legal doctrine into justifications for censorship. In fact, one in six of this country’s top colleges and universities maintain “free speech zones”: small, generally remote, outside areas where students must go if they want to engage in expressive activity — including, as several students have found out, distributing copies of the Constitution to passers-by. In some cases, students must register to use these zones days or even weeks in advance. When students complain, administrators maintain these restrictions are lawful “time, place, and manner” restrictions, conveniently omitting the fact that the Supreme Court has ruled that such restrictions must be “narrowly tailored to serve a significant governmental interest.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
ISU claims that student organization messages are government speech in spite of the Supreme Court’s holding in Rosenberger. Would-be censors use whatever justification is available. FIRE doesn’t doubt that university administrators who want to silence student speech would take full advantage of a Supreme Court decision in favor of Texas to do so.