Supreme Court takes a “Painful Bite” out of Free Speech

June 18, 2015

While the Supreme Court protected free speech by invalidating town sign ordinances that restricted speech according to its content in Reed v. Town of Gilbert, the Court's decision today in Walker v. Texas Div. of Sons of Confederate Veterans, Inc. took "a large and painful bite out of the First Amendment," as Justice Alito noted in dissent.

Drivers in most states have the option of selecting either ordinary or specialty license plates. In Texas, specialty license plates are purchased for a fee in addition to the registration cost and the design of these specialty licenses can be called for by the state legislature, created by a state-designated private vendor at the request of an individual or organization, or based on the application from a non-profit seeking to sponsor a specialty plate. In Walker, a non-profit, the Sons of Confederate Veterans applied twice to sponsor a specialty plate that would have included a Confederate flag but was denied both times.

The Supreme Court ruled that the specialty license plates are not private speech, but are instead government speech. Therefore, any decisions regarding the designs are not subject to scrutiny under the First Amendment.

It is true that license plates are government tools to identify vehicles and make money but that should not mean that anything on a license plate is government speech. Justice Alito disagreed with the majority and offered some examples as to why licenses are not government speech:

If a car with a plate that says 'Rather Be Golfing' passed by at 8:30 am on a Mon­day morning, would you think: 'This is the official policy of the State -- better to golf than to work?' If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas's out-of-state competitors in upcoming games -- Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State -- would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns' opponents? And when a car zipped by with a plate that reads 'NASCAR -- 24 Jeff Gordon,' would you think that Gordon (born in California, raised in Indiana, resides in North Carolina)is the official favorite of the State government?

True to his intent, these examples from Justice Alito show that simply because some logo or phrase is included on a license plate, the government is not automatically claiming it as its view or its speech. Instead the viewers -- and the government -- know that the license plate is representing the views and the speech of the driver.

Justice Alito also discusses some of the potential implications the Walker decision could have on free speech in the future including the use of other types of billboards along highways or on college campuses, highlighting the concern that the government can now limit private speech because it finds it displeasing if the government is the one providing the billboard or funding the campus in some manner.

An immediate concern is what implication Walker will have on other specialty license plate cases like the ones in New York and North Carolina. In New York, an organization promoting adoption as an alternative to abortion submitted a design for a specialty plate reading "Choose Life." The design was denied and the Second Circuit upheld the denial. Following the Supreme Court's decision in Walker, the "Choose Life" license plate in New York is not likely to be allowed because the situation is so similar. In both cases, it was a non-profit organization that submitted the request and in both instances, the government denied it. Since the government is not barred by the Free Speech Clause from determining the content of what it says, there is no free speech scrutiny for government speech including decisions about specialty license plates.

However, the North Carolina case, Berger v. American Civil Liberties Union of North Carolina, which has requested certiorari in the Supreme Court may have a different outcome. In Berger, the North Carolina state legislature passed a bill authorizing the creation of several new specialty plates including a "Choose Life" plate. The ACLU has challenged the legislation. Since it was the state legislature that authorized the creation of the "Choose Life" plate, that decision is government speech and in Walker, the Supreme court says that, "as a general matter, when the government speaks, it is entitled to promote a program, to espouse a policy, or to take a position." Therefore, North Carolina should be able to create a "Choose Life" plate without also offering a "Pro-Choice" specialty plate.

While it is certainly a recognized principle that the government can speak freely, it is also a Constitutional right that individual citizens can speak freely. The views that individuals express are to be protected -- even and especially if they are not popular views. Unfortunately, with the Walker decision, the Supreme Court has chipped away at the American citizens' ability to express their views and has made Americans dependent on the government sharing their views in order to express them.