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Supreme Court Takes a ‘Large and Painful Bite’ Out of the First Amendment

By June 19, 2015

Yesterday, the Supreme Court ruled 5–4 in Walker v. Sons of Confederate Veterans that license plates issued through the state of Texas’s specialty license plate program constitute government speech, and that Texas, accordingly, had the right to reject a design featuring the Confederate battle flag on the grounds that many Texans find the flag offensive.

While the implications of this decision for free speech on campus may not be immediately obvious, they are real. As Torch readers may recall, FIRE filed an amicus curiae brief in this case, arguing that expanding the “government speech” doctrine would be harmful to free speech rights on campus. As I wrote here in February:

At first glance, specialty license plates may seem unrelated to FIRE’s mission of promoting free expression on college campuses. But at its core, Confederate Veterans deals with the question FIRE faces every day: Can the government censor a particular message that it doesn’t like? Whether the censor is the Texas DMV or a public university president doesn’t really matter.

Colleges and universities are forever arguing that student and faculty speech they disagree with can be censored on the grounds that it might be confused with institutional speech. With that in mind, let’s take a closer look at the Walker ruling.

The case asked whether the state of Texas could deny the Sons of Confederate Veterans’ (SCV’s) application for a specialty license plate featuring the Confederate battle flag. Although the state had authorized 350 other designs promoting a wide variety of other organizations and causes, Texas rejected the design because many Texans find the Confederate flag offensive. SCV argued that the specialty license plates were private speech, and that Texas’s refusal to allow the image of the Confederate flag was impermissible viewpoint discrimination. Texas, on the other hand, contended that its license plates constitute government speech and that Texas, as an entity with its own free speech rights, should not have to convey a message with which it disagrees.

In an opinion authored by Justice Stephen Breyer, the Court’s five-member majority relied almost exclusively on its earlier decision in Pleasant Grove City v. Summum (2009) to decide the case in favor of Texas. In Summum, the Court held that the city of Pleasant Grove was within its rights to reject a religious monument donated to one of its public parks by the Summum religious group, despite the fact that the park in question contained other monuments donated by private organizations. The Court ruled that monuments are government speech because people understand them to be government recognition of certain citizens or events, and thus the city did not have to accept the donation to a public park.

Relying on Summum, the Court ruled that license plates were so closely associated with the state as to constitute government speech:

Each Texas license plate is a government article serving the governmental purposes of vehicle registration and identification. The governmental nature of the plates is clear from their faces: The State places the name “TEXAS” in large letters at the top of every plate. Moreover, the State requires Texas vehicle owners to display license plates, and every Texas license plate is issued by the State. … Texas also owns the designs on its license plates, including the designs that Texas adopts on the basis of proposals made by private individuals and organizations. … And Texas dictates the manner in which drivers may dispose of unused plates.

For these reasons, the Court held, “Texas license plates are, essentially, government IDs,” and thus expression on those license plates constitutes government speech. In other words, the Court concluded that because Texas has an elaborate regulatory process for approving specialty plates, and because the messages appear on de facto state-issued IDs under the word “TEXAS,” they therefore constitute government speech.

The majority did not explain how an observer was supposed to reconcile the 350 different messages available as specialty license plates—which include the logos of out-of-state universities such as Kansas State University and the explicitly Mormon Brigham Young University, as well as commercial logos including Dr Pepper and Re/Max real estate—with the idea that each plate constitutes the official speech of the state of Texas. Under the Court’s reasoning, we must assume that Texas wishes its citizens to study the teachings of the Church of Jesus of Christ of Latter Day Saints, limit their soft drink consumption to Dr Pepper, conduct their real estate transactions with Re/Max brokers, and wear only cotton clothing simply because all of these messages appear on Texas specialty places. Blood and organ donation are good—they have plates—but bone marrow donation is apparently not favored (no plate). Yes to citrus; no (apparently) to root vegetables. (The dissenting justices helpfully reproduce some of the plates with causes Texas wishes to promote. More can be found on the Texas DMV website.)

The underlying logic of the majority’s holding in Walker should trouble free speech advocates: The more the state regulates speech, the more likely the resulting message should be deemed government speech. The resulting incentive for government regulation—and thus control—of otherwise private speech may prove too powerful for would-be government censors to resist. As law professor and First Amendment expert Eugene Volokh writes:

But the general principle at issue here is potentially very significant, because there are many much more significant programs in which the government supports the distribution of private organizations’ messages. The income tax deductibility of charitable contributions, the Court has repeatedly ruled, is a form of government subsidy for private speech. So are federal student loan funds that go to universities. So are various benefits provided to university student groups; and the list could go on. If the government could characterize all these programs as essentially involving “government speech,” and thus as allowing viewpoint discrimination by the government, then the government would have very broad authority to influence public debate through such programs. (Imagine a policy under which the IRS is legally allowed to deny tax-exempt status to various groups because the government disapproves of their messages.)

To quote the dissent, authored by Justice Samuel Alito, this is “dangerous” precedent:

While all license plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.

The majority in Walker held that the government can gut the First Amendment’s prohibition on viewpoint discrimination by regulating private speech, in essence authorizing an end-run around the First Amendment. Justice Alito’s dissent outlines the numerous flaws in the majority’s opinion and is worth a careful read. Among other things, the dissenters apparently heard FIRE’s warning about the implications of the Court’s ruling for campus speech:

What if a state college or university did the same thing [sell space for private messages] with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen.

FIRE has seen the speed with which campus administrators will latch onto judicial decisions that provide them authority to engage in censorship. For example, it was only a matter of days after the U.S. Court of Appeals for the Seventh Circuit handed down its decision in Hosty v. Carter (2005)—a decision that subjected college student newspapers to the same prior restraint applicable to K-12 school newspapers—that the general counsel of the California State University System was informing administrators throughout the system that they now had greater freedom to censor campus newspapers. Sadly, we fully expect to see this decision cited to justify censorship on campus, and we are ready to push back with all of our resources to reassure Justice Alito that the doctrine of viewpoint discrimination still applies to public college campuses.