The latest first amendment case to make headlines is whether or not the Texas government’s decision to exclude a Confederate flag plate from their specialty license plate program is a violation of free speech. It’s a tricky case and could make a strong case for the development of a more nuanced category of protected speech. But it probably won’t be.
The case started in 2009, when Sons of Confederate Veterans (SCV) found their proposed specialty license plate denied on the grounds that many people would find it offensive. The case was taken to court where they lost at the district court, but won when the Fifth Circuit sided with the SCV.
Whether or not you view the Confederate flag as a symbol of independence and the South or one that celebrates a racist past, it’s hard to find this case clear cut one way or another. As ThinkProgress writes:
…It is not entirely clear whether the First Amendment applies at all to state-issued license plates. Generally speaking, the government may not engage in viewpoint discrimination when it regulates others, but the government is free to say what it wants when it speaks with its own voice. This is why, for example, the government can fund a program advising children to “just say no” to drugs, without also having to provide equal funding to another program urging kids to get high.
…The SCV counters the claim that license plates are government speech by emphasizing the amount of individual discretion that goes into selecting a specialty plate that was designed by a private individual or group. “People and organizations who want to have a specialty plate create a proposed plate and request approval of the design,” the SCV’s brief explains. “A committee of the DMV approves the design, but people who want to display the design on their vehicle choose the plate, pay the extra cost, and normally install them on their vehicle. These people then publish the message when they drive their vehicle in public.” Specialty plates, they argue, are not government speech, they are personal speech.
It’s a question that needs clarification, with similar cases of license plate oversight popping up around the country. But perhaps the clarification would best come in a middle ground, recognizing, as Michael C. Dorf writes for Verdict, that some speech falls between the cracks of its existing categories:
Approving a specialty license plate differs from permitting a private group to hold a rally on public property, given the state’s necessary role in the creation of the plate. Indeed, it may be just this tacit measure of government approval that leads car owners to seek specialty plates, rather than to be satisfied with a bumper sticker or license plate holder that conveys the same message.
Accordingly, the dissenting judge in the appeals court thought that restrictions on specialty license plates would be better evaluated under a hitherto-unrecognized category for “mixed” government and private speech. University of Miami law professor Caroline Mala Corbin provided a sophisticated argument for and elaboration of this new category in a 2008 article in the NYU Law Review article.
…Professor Corbin proposed that government’s ability to discriminate based on viewpoint in issuing license plates should depend on the reason for such discrimination: Mere government disagreement with a private message—as when Tennessee denied the pro-choice license plates—would not be a strong enough reason, but avoiding actual harm from speech—as when African Americans and others feel victimized by the state’s seeming endorsement of its racist past—would.
There’s some precedent set here in cases like Wooley v. Maynard or Pleasant Grove City v. Summum, which both dealt with the gray area where private speech and government speech intersect. The former, in particular, is notable because it viewed license plates as private land, ultimately ruling against the government.
But, as Dorf notes, in the nearly 40 years since the Wooley decision courts have come to embrace the government speech doctrine: the government can advance its own viewpoint without requiring a neutrality when the government is the speaker. Which leaves the courts without precedent on whether to apply the government speech doctrine or the first amendment—an option that could open up their decision to a hybrid and create a whole new ballgame.
Lower courts are facing more and more cases where they are dealing with previously nonexistent intersections of private and government speech: government websites, advertisements on city buses, or memorial sites at public schools and parks. An agile reading of what constitutes protected speech in spaces like these could better navigate where private and government intersect than our current system.
Additionally, like Caroline Corbin writes in a paper on hybrid speech in 2008, the scrutiny a mixed speech system would bring would prevent courts from hiding behind nomenclature and force them to articulate reasons for restricting speech:
“The current solution is usually to avoid these clashes by pretending that mixed speech is actually private or government speech. But classifying mixed speech as either private or governmental masks the competing interests involved. Once mixed speech is labeled government speech, the free speech interests of speakers and the audience are dismissed. Likewise, once it is labeled private, concerns about state endorsement of offensive, harmful, or religious speech are ignored. Intermediate scrutiny of mixed speech allows a more nuanced analysis than does the present either-or approach.”
Unfortunately, it’s highly doubtful this will be that case. As noted in The National Review, the specialty license system varies so much that there’s not an easy way to demonstrate any oversight in the process, and the Supreme Court traditionally tries to keep its decisions very narrow. Ultimately this will come down to how much control the government has, and that will be a dramatic variable from situation to situation.
As one Harvard Law Review Note argues, it may be enough that the state is involved at all:
But seeking special consideration for “mixed” or “hybrid” speech would only serve to enhance the incorrect perception that private involvement necessarily diminishes the extent to which the state is the speaker. Moreover, it would be problematic to apply, inadequately protecting the state’s interest in not being associated with speech it disfavors and giving this speech credibility it has not earned. A better approach acknowledges that a speech act can be exclusively the government’s even if it benefits from private inspiration or distribution.