The Supreme Court's Alarming Decision Curbing Free Speech

texas_confederate_license_plate_6-19-15-2 This image provided by the Texas Department of Motor Vehicles shows the design of a proposed Sons of Confederate Veterans license plate. The Supreme Court has upheld Texas' refusal to issue a license plate bearing the Confederate battle flag, rejecting a free-speech challenge. The court said Thursday that Texas can limit the content of license plates because they are state property and not the equivalent of a bumper sticker. (AP photo and caption.)

The Supreme Court today accelerated the dangerous erosion of First Amendment protection, making way for government censorship of expression that does not conform to its preferences. In Walker v. Sons of Confederate Veterans, the sharply divided Court ruled that the state of Texas could constitutionally engage in viewpoint discrimination by prohibiting a specialty license plate that depicted the Confederate flag.

You’re thinking, “What’s the harm?” After all, that flag is deemed by many – perhaps most (though I’ve done no research on the matter) – to be an offensive symbol of racism and slavery. Even if everyone doesn’t see it that way, enough do, and passionately so; thus, why should the state not ban the flag’s appearance on property that is issued by the government itself?

This, indeed, was the rationale of the five-justice majority -- an interesting mix of the Court’s four consistent liberals (Justice Stephen Breyer, who wrote the opinion, and Justices Ruth Ginsburg, Sonia Sotomayor and Elena Kagan) with one of its staunchest conservatives, Justice Clarence Thomas. Reasoning that license plates -- specialty or not -- are “government speech,” Justice Breyer concluded that the state has the power, unregulated by the First Amendment, to express its views on matters of policy.

But is it really “government speech”? In dissent, Justice Samuel Alito (joined by Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy) pointed out that the state has licensed some 350 specialty plates, some of which cannot conceivably be statements of government policy (e.g., “Rather Be Golfing”; “NASCAR – 24 Jeff Gordon”; "Young Lawyers”; “Get It Sold With Remax”; and “University of Oklahoma” – a major football rival of Texas schools – as well as several other out-of-state institutions). In fact, the dissent pointed out, the state has also authorized a plate honoring “Buffalo Soldiers,” African American soldiers originally of the Army’s post-Civil War 20th Cavalry Regiment. While that outfit would be broadly popular no doubt, the plate offends at least some Native Americans, who protested that they felt the same way about the cavalry as African Americans did about the Confederacy.

The point, of course, is that although the state is the issuer of the license plates (which it requires all automobiles registered in Texas to display), the speech expressed on the specialty plates is associated with the private parties who propose, select, and exhibit the plates. Therefore, it is not reasonably understood as government speech; it is private speech that the government is regulating – and government has no business using its regulatory authority to favor or disfavor competing points of view.