Two First Amendment Decisions

[ Posted Thursday, June 18th, 2015 – 17:13 UTC ]

The Supreme Court handed down two decisions today on free speech cases, both of which did some hair-splitting on the role government has in regulating certain types of speech. What's interesting is that they seemed a bit contradictory at first glance, since one was decided in favor of government regulation of free speech and one was not, but these are awfully fine hairs to be split and in reality the cases are only superficially similar.

The first case dealt with a local town's sign ordinance. Every town has rules for what signs it allows, which mostly deal with size and height and things of that nature -- basic "building code" stuff, in other words. A Burger King restaurant isn't allowed to throw up a sign hundreds of feet high, for example, in a town where everyone else has much smaller (or shorter) signs. But the town in question had regulations which differed depending on what was being said. A church sued, since it fell under very strict rules for "events," according to the town. Event signs had to be smaller than other allowed signs -- categories which even included political signs. The church maintained that this was unfair and that they should be allowed to have a bigger sign.

As with many Supreme Court cases, by the time the case was heard by the high court, the problem had actually been solved (the town changed its regulations a few years back). So the case was decided merely for the legal reasoning -- to set a precedent, in other words. In a unanimous decision (a relative rarity for this court), the Supreme Court agreed with the church. The reasoning behind the decision is that government (local, in this case) cannot set up different rules for speech (posting a sign in public) depending on the content of the speech. If big signs are allowed for politics, then big signs need to also be allowed for churches. This ruling reinforces the principle that government cannot pick and choose which speech it likes, and must treat all equally.

This is where the superficial similarity comes in, because in the second case, the court ruled that government actually can differentiate between speech, depending directly on the content of the speech. The big difference, however, is that the "speech" in question in this case appears on state-issued vehicle license plates.

The state of Texas, like many states, offers specialty license plates for various groups (such as college alumni or veterans, for example), with each group's customized logo prominently displayed. The problem arose when a group wanted to create a "Sons of Confederate Veterans" plate, with the Confederate battle flag as their logo. The state solicited public comments on the plate. Almost all of the public comments were negative, and Texas decided to refuse the group permission to create their own plate. The group sued, maintaining that by refusing them a specialty plate the state was indeed picking and choosing which speech was allowable, using only content to decide. As in the other case decided today, governments are supposed to be neutral on such speech -- even on politically contentious issues (or perhaps "especially on politically contentious issues").

But a church putting up a sign on their own is a different thing than a state issuing an official license plate. The state is not involved in the church's speech, other than dictating the size of the sign. The state is intimately involved with creating license plates, however. Texas argued that creating a plate with a Confederate flag on it was offensive to the public and they did not want to be seen as officially endorsing such speech.

The Supreme Court, in a very close 5-4 decision, sided with Texas. Their reasoning was that since the state is involved in the production of the license plate, they are allowed to exercise a certain degree of control over what they allow on the plates. One easy example of this legal reasoning is obvious -- states that offer "personalized" plates (on which you can spell out your name, for instance) routinely search applications for profanity, which they do not allow. Just because you have a free speech right to use profanity does not mean that the state has to condone it by printing it onto your car's license plate, in other words. Now, I am not equating the Confederate flag with profanity here, just to be clear, but you can see why the state wants to have some sort of control over their own state-issued license plates, even if it does curtail someone's free speech rights. The state in this case has to be seen as officially endorsing the message on their own license plates, to put it slightly differently.

This Supreme Court decision was an odd one, because while all four liberal justices voted to support Texas, the four on the other side consisted of only three conservatives plus the normal swing vote (Kennedy). The surprise was that Clarence Thomas actually voted with the majority. Thomas is not normally seen as much of a swing vote, and he also is not normally seen as being overly sensitive to African-Americans (even though he is one). But Supreme Court cases occasionally have surprising bedfellows, so to speak.

What's even more interesting about this case is that other federal courts have ruled in the exact opposite direction, for two different states. Both Maryland and Virginia were ordered to create a Sons of Confederate Veterans plate, even over the states' objections. Now that the court has ruled on the Texas case, it will be interesting to see what happens to the S.C.V. plates along the banks of the Potomac.

Both of these cases are not ground-shaking First Amendment cases -- they both slightly split hairs on the issue of when governments can be involved in regulating speech, but not in any fundamental way (at least, to me). There's no "shouting fire in a theater" aspect to either of them, really. The Founding Fathers would have had to have the concept of a "license plate" explained to them, so no "original intent" was really even involved. But the cases do move the goalposts slightly in terms of what restrictions on free speech by governments are legally allowed. Of course, there are bigger decisions pending, so these cases will likely be quickly forgotten by most in the next few weeks, but being a close observer of all First Amendment rights (free speech in particular), I felt that they were both worth a mention.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


16 Comments on “Two First Amendment Decisions”

  1. [1] 
    dsws wrote:

    They sound flat-out incoherent, on the sign case. Or three of them do, at least. Alito writes in his concurring opinion (Kennedy and Sotomayor joining),

    I will not attempt to provide anything like a comprehensive list, but here are some rules that would not be content based:
    Rules regulating the size of signs. These rules may
    distinguish among signs based on any content-neutral
    criteria, including any relevant criteria listed below.
    Rules imposing time restrictions on signs advertising a
    one-time event

    The whole problem with the sign code now apparently turns on the distinction between a weekly event and a one-time event. Seeing that the sign advertises a weekly event requires you to read the sign. That makes it content-based and therefore subject to "strict scrutiny", which it does not pass. So the sign code is unconstitutional. Seeing that the sign advertises a one-time event, by contrast, is done by ESP which the Constitution allows with only intermediate scrutiny. Or something.

    Breyer is more reasonable (as I see it). He writes,

    The First Amendment requires greater judicial sensitivity both to the Amendment’s expressive objectives and to the public’s legitimate need for regulation than a simple recitation of categories, such as “content discrimination” and “strict scrutiny,” would permit. In my view, the category “content discrimination” is better considered in many contexts, including here, as a rule of thumb, rather than as an automatic “strict scrutiny” trigger, lead
    ing to almost certain legal condemnation.

    Although nominally concurring, Kagan's opinion (Breyer and Ginsburg joining) reads more like a dissent. In fact, I sound like I'm almost-quoting her above, but I actually wrote that before I read her opinion. Kagan does not elaborate on exactly what standard she would apply. She discusses the problems with the majority's decision, briefly notes some problems with the Town of Gilbert's defunct sign code, and says that she concurs only with the judgment.

  2. [2] 
    dsws wrote:

    I'm not satisfied by the SCV holding either. It sort of sounds as though the only thing protecting a forum from being government speech is if it's traditional. For all that I see spelled out to limit the scope of the holding, the state may be able to butt into any new forum where government plays any role in facilitating private speech, stick a 'State of ____' label on things, and start censoring viewpoints. On the other hand, there's nothing in the holding that requires it to have that scope, either.

    Onward to the full opinion.

    The decision seems to rest on the fact that license plates traditionally are a form of government speech. I guess that's ok by me. Not ideal, but ok. I'm primarily concerned about new media, that aren't traditionally anything one way or another. The precedent is Summum, involving monuments which are indeed a very prominent and longstanding means of government speech.

    To me, though, there's a difference: nothing much has changed about monuments. They're still recognizable as almost purely government speech, even when specific private parties are very unequally involved in the political process by which the government is prodded into speaking. With license plates, something has changed. When the government puts one slogan on all its license plates, it's unambiguously government speech. When a government allows car owners to choose from a handful of slogans, it's still pretty unambiguous that that's government speech. But when anyone can put basically anything they like on their license plate, until the government decides to censor a particular viewpoint, that's new. The message is the speech of the person who decided to put it on. Saying that the government has "final approval" (a phrase from Summum, apparently) just means that the government has an opportunity to censor before the fact. But government restraint of speech beforehand is, if anything, even more suspect than responses after the fact.

  3. [3] 
    Michale wrote:

    It's my understanding that the Texas License Plate decision was based on the fact that the people who want the vanity plate don't actually OWN the vanity plate. The plate is the property of the state government and, as such, the government has a bigger say in what goes on them.

    That makes a certain amount of sense to me even though I disagree with the overall decision..


  4. [4] 
    dsws wrote:

    They do say that Texas owns the designs, but not (as far as I notice) the plates themselves.

    There are a lot of things these days where you have to check a box supposedly agreeing that you've read and understood 9,436,192,015 pages of legal gobbledygook that sounds as though it says your cell phone provider or whoever owns everything you've ever thought, and all your descendants to the 49th generation. Certainly if you want to speak about some company, the company owns its name and logo, without which you can't readily identify the company so as to be able to speak about it. So using someone else's "intellectual property" shouldn't preclude your speech from being your speech.

    For me, the bottom line is that whenever there's a public forum, used by lots of people to say whatever they want, the government should not be able to exclude specific viewpoints. Even if it's on government property, and even if it's a new forum rather than a traditional one.

    If the government wants to shut down a public forum, it can do so if its property interests would normally allow it to. It can sell off a park, for example, and let someone build on the land, even if the park has been used for speech. But it can't shut down a particular message, even in the course of doing something that its property interests would otherwise allow it to do.

  5. [5] 
    TheStig wrote:

    Stupid revenue generating schemes by the states make for dubious split decisions by the Supreme Court. States should treat plates as IDs and not hybridize them with bumper stickers. A high degree of crudity, creativity and just plain crazy is tolerated on free market bumper stickers. If the state is to maintain what it regards as decorum, it is going to discriminate against some groups...and it's going to be obvious to the public. The revenue stream from a sideline marketing scheme is not worth the Inherent tension with the Constitution. Stop it. The courts have enough work already. Maybe what we need is a 50 state no advert on plates pact. NAOPP. Put that message on a bumper sticker.

  6. [6] 
    Michale wrote:

    They do say that Texas owns the designs, but not (as far as I notice) the plates themselves.

    Texas' main argument to the Supreme Court is that the license plate is not like a bumper sticker slapped on the car by its driver. Instead, the state said, license plates are government property, and so what appears on them is not private individuals' speech but the government's. The First Amendment applies when governments try to regulate the speech of others, but not when governments are doing the talking.


  7. [7] 
    dsws wrote:

    Who cares what Texas argued. I'm talking about what the decision said.

    In this case, not giving a link is appropriate: everyone from WBUR to Fox News has the exact text you quoted. But I don't see any basis for it in actual court documents. I looked at the decision yesteday; now I checked the brief for the petitioners. The plates were repeatedly referred to as "state-issued", not "state-owned". I didn't read the whole thing, but if ownership of the plates were the state's main argument, it would have been in what I did read.

    Someone at AP or Reuters wrote it. Everyone else copy-and-pasted it without looking at the original documents.

  8. [8] 
    Michale wrote:

    Who cares what Texas argued. I'm talking about what the decision said.


    The Justices...

    Someone at AP or Reuters wrote it. Everyone else copy-and-pasted it without looking at the original documents.

    That's certainly one theory...


  9. [9] 
    dsws wrote:
  10. [10] 
    dsws wrote:

    The justices don't care what Texas argued. If you read the transcript of oral arguments, Scalia was arguing on behalf of Texas because counsel for Texas wasn't getting it done.

  11. [11] 
    dsws wrote:

    Moreover, even if the respondents’ permanence anal-
    ysis were apt and a year’s worth of speech were somehow
    insufficiently permanent to constitute government speech, the Department provides automatic annual renewal notices for specialty license plates. 43 Tex.
    Admin. Code § 217.28(d)(3)(A). The owner need only pay a fee and submit any required paperwork to remain in the program. Id. § 217.28(d)(3)(B).

    License plates are thus more like a monument that
    “endures” than a demonstration or a temporary installation. (emphasis added)

    That sounds as though the state does not own the license plates.

  12. [12] 
    dsws wrote:

    Hmm. A comment got vanished. It had a link, but only one.

  13. [13] 
    Michale wrote:

    The justices don't care what Texas argued.

    I find that singularly hard to believe...

    But it's not that important..

    It's like one's Drivers License. It's property of the state that issued it..


  14. [14] 
    Michale wrote:

    It's like one's Drivers License. It's property of the state that issued it..

    LEO's can confiscate DLs because the DLs are property of the state and LEOs are representatives of the state..

    DOT and LEO officers can also confiscate License Plates because LPs are also property of the state and DOT/LEO are representatives of the state..


  15. [15] 
    dsws wrote:

    A park is also government property. That doesn't give the government the right to censor what you say there.

    It doesn't matter who the license plate (or the park) belongs to. It matters who's speaking there. According to the Court, when two people put contrary slogans on their license plates (both having been approved by the state) it's the state that's expressing its contradictory opinions.

    According to the Court, University of Michigan fans aren't expressing their team spirit when they order "Go Blue" license plates: the state of Texas is. Just the same as the state of Texas expresses its support for Michigan State University athletic teams, when someone is issued a "Go Spartans" plate. The owner of the vehicle has nothing to do with it. If such plates happen to be found on vehicles of supporters of the respective teams, that's pure coincidence. Only the state is speaking.

    The ruling is stupid.

  16. [16] 
    Michale wrote:

    A park is also government property. That doesn't give the government the right to censor what you say there.

    To use your Park analogy, it would be as if someone rented out a government spokesman and forced him to say something that the government is not in the business of saying...

    It doesn't matter who the license plate (or the park) belongs to. It matters who's speaking there.

    And, if the government owns the plate, then it's the government speaking..

    The ruling is stupid.

    I agree...

    I don't agree with the ruling.

    I understand why they ruled that way...


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