June 19, 2015

The Troubling Government Speech Doctrine

Erwin Chemerinsky, government speech, Sons of Confederate Veterans, Viginia v. Black, Walker v. Texas Division, Wooley v. Maynard


by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

I do not like the idea of confederate flags on license plates issued by the State of Texas, but I found the Court’s reasoning very troubling in allowing the Texas Department of Motor Vehicles to prohibit this. In Walker v. Texas Division, Sons of Confederate Veterans, the Court in a 5-4 decision, held that the Texas Department of Motor Vehicles did not violate the First Amendment in refusing to issue a license plate with the confederate battle flag.

Texas, like all states, requires license plates on cars. In Texas, people can have either the general type of plates issued by the state or they may have specialty plates. One type of specialty plates are those where a non-profit organization asks the Texas Department of Motor Vehicles Board to approve a design and then issue plates with it. The Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a confederate battle flag, but the Board rejected the proposal.

The Supreme Court held that the Board did not violate the First Amendment because license plates are government speech and when the government is the speaker it cannot violate the speech clause of the First Amendment. Justice Breyer, writing for the majority said, “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” The Court explained, “Were the Free Speech Clause interpreted otherwise, government would not work.” The government must be able to express messages such as to encourage recycling or energy conservation or vaccination of children.

The Court said that the license plate is government speech and therefore the choice of the Board to not allow the confederate flag does not violate the First Amendment. The Court stressed that license plates have long communicated messages from the state and that license plate designs are perceived by the public as coming from the state. The Court said that Texas license plates are essentially government IDs. The Court stressed that Texas retains control over the content of its license plates. The Court said that Texas was not creating a forum for private speech, where the First Amendment would apply, but it was Texas speaking itself.

It is easy to like the result in this case because confederate battle flags convey a message of racism that is inherently hurtful and divisive.   Indeed, it may be for exactly this reason that Justice Clarence Thomas was the fifth vote in the majority – joining Justices Breyer, Ginsburg, Sotomayor and Kagan – in an alignment that is rare on the Court.  In Virginia v. Black (2003), Justice Thomas was the sole dissenter arguing that the government should be able to ban cross burning because of its vile history and hateful message.

But there is much that is troubling about the Court’s approach. Does this mean that the government can put any message it wants on license plates and require that people have that on their cars?  What if the government wants to put a message that abortion is murder or even a message to vote Republican?  The Court’s approach says that when the government is the speaker it cannot be challenged for violating the speech clause of the First Amendment.

Justice Breyer said that although it was government speech, the “designs also implicate the free speech rights of private persons.”  The Court said that nothing in its analysis was inconsistent with the decision in Wooley v. Maynard (1977), where it ruled that a state could not require that people display “Live Free or Die” – the New Hampshire motto on the license plates. But there is a tension between saying that the license plate is government speech and yet also saying that it is private speech so that people do not have to convey the message. 

More importantly, the Court’s approach gives the government the ability to avoid free speech challenges by declaring that something is government speech. Could a city library choose to have only books by Republican authors by saying that it is the government speaking? Could a city allow a pro-war demonstration in a city park while denying access to an antiwar demonstration simply by adopting the former as its government speech? 

The key issue in the case is whether the government is itself the speaker or whether the government is creating a forum for private speech. Texas, by allowing people to put messages on their license plates, seems very much to be doing the latter. When the government creates a forum for private speech, it cannot engage in viewpoint discrimination and that is exactly what Texas was doing.

This does not mean that Texas had to tolerate confederate flags on its license plates. It could adopt a new policy that would not allow people to design their own content of license plates.  There then would be no confederate flags and no other personal messages as well. Texas would design all of the license plates, and that truly would be government speech.

The underlying issue in Walker v. Texas Division, Sons of Confederate Veterans is sure to recur in many contexts:  when is the government the speaker as opposed to when is the government creating a forum for private speech?  I worry that the government speech doctrine will make it too easy for the government to circumvent the First Amendment by claiming that it was the speaker.