Bench Memos

Law & the Courts

A First Amendment SCOTUS Case Could Bring Much-Needed Clarification as to What Constitutes ‘Government Speech’

Monday morning’s Supreme Court docket features arguments in a First Amendment fight between the Sons of Confederate Veterans, who wish to display the Confederate battle flag on their specialty license plate, and the state of Texas, which excluded the Sons from its specialty-plate program because it thought their symbol violated its policy against “offensive” messages on specialty plates.

Many states offer such programs, allowing private organizations to create a special license plate that vehicle owners can then purchase for their cars. A portion of the proceeds goes to the private organization that sponsors the plate.

The case offers the Court the opportunity to clarify whether the First Amendment applies when speech is the product of a combined effort by state and private actors, and perhaps more importantly, to provide guidance on what constitutes “government speech” that is not subject to the First Amendment at all.

The federal appellate courts have had difficulty discerning whether states are speaking government messages through their specialty-plate programs or simply promoting private ones, and as a result they have promulgated conflicting tests for government speech (the “control test,” “reasonable observer test,” and “multi-factor test”) and have classified specialty plates in different ways: as government, private, or hybrid speech.

These cases reflect the current flashpoints of public debate, such as Walker (the case mentioned above) and several similar disputes over the Confederate flag. But most of them are part of a national discussion over abortion-related speech and center on one particular specialty license plate: the “Choose Life” plate, now available in 29 states, featuring a pair of smiling cartoon children.

Proceeds from “Choose Life” plates are generally used to help pregnant women in need. Between the message and the money (over $20 million dollars, according to Choose Life USA, the national facilitator for the plates), the plates have proven an effective tool for pro-life centers that offer help to women and have gained the ire of pro-abortion organizations such as Planned Parenthood and the American Civil Liberties Union. These groups have gone so far as to file suit against the plates in numerous states, claiming that states’ approval of the “Choose Life” message without approving a similar “Respect Choice” message constitutes invalid viewpoint discrimination.

Curiously, these self-proclaimed champions of “choice” and free speech virtually never ask for their own plate; instead, they ask the courts to ban the “Choose Life” specialty plate. In several states, including North Carolina and South Carolina, they have succeeded in driving the pro-life message off the road.

The Fifth Circuit (in Walker) and the Ninth Circuit and the Seventh Circuit (in “Choose Life” plate cases), adopted a “reasonable observer test” that inquires whether the average motorist would perceive that the plate is the driver’s speech or the state’s. The Sixth Circuit (in a “Choose Life” case) held that the “literal speaker” controls, which, in that case, is the Tennessee Legislature, because it passed the plate.

The Fourth Circuit (again in a “Choose Life” case) proposed a “hybrid test,” reasoning that both the state and the motorist are speaking when a specialty plate is displayed. Alliance Defending Freedom is co-counsel for the state petitioners in that case, Berger v. ACLU, which the Supreme Court is currently holding pending the outcome in Walker.

Complicating all of these analyses is the fact that no two specialty-plate systems are alike. Some states adopt specialty plates only through legislative action, some entrust the decision to a motor-vehicle-department decision process (which is often ad hoc), and a few simply allow citizen groups to apply to the government for an organizational plate.

Some states, including Texas, employ several of these avenues simultaneously. The confusion has created the constitutional equivalent of an eight-car pile-up among the circuits over the constitutional status of what the Supreme Court once called “mobile billboards,” which the Court presumably seeks to clean up. In the process, it may take a stab at a true test for “government speech,” which, in several recent cases, it has managed to avoid like a sports car swerving around pylons in a TV commercial.

These cases include Pleasant Grove City v. Summum, in which it held that a city was the speaker when it accepted and placed a monument in a public park, not the group that donated it; and Johanns v. Livestock Mktg. Ass’n, in which it turned back the First Amendment challenge of a beef producers’ association to a government public-awareness campaign that the beef producers considered unfavorable to their interests. Declaring the campaign to be “government speech,” the Agriculture Department ran the campaign in the name of the beef industry using funds appropriated from the beef producers.

There is no need for the Supreme Court to reinvent public-forum doctrine, only to clarify that the First Amendment doesn’t apply when a state legislature expresses the state’s views on state-issued licensed plates. As my co-counsel in the North Carolina case, Professor Scott Gaylord, points out, just because a state enacts a “Save the Sea Turtles” plate doesn’t mean it must issue a “Kill the Sea Turtles” plate to vehicular trolls.

Texas’s action in the Walker case doesn’t come close to meeting this standard. For the sake of a robust First Amendment–forum doctrine, and so that ideological bullies are not rewarded, let’s hope the Court adopts a rule that keeps both government and private citizens in their own lanes of the First Amendment freeway.

— Steven H. Aden is senior counsel with Alliance Defending Freedom, which is co-counsel in defense of North Carolina’s “Choose Life” license plates in Berger v. American Civil Liberties Union of North Carolina.

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