Viewpoint Endorsement Equals Viewpoint Neutrality? The Circular Logic of Government Speech Doctrine

• Author: Jason Zenor
• Position: Associate Professor, School of Communication Media and the Arts, The State University of New York Oswego.
• Pages: 1-21

VIEWPOINT ENDORSEMENT EQUALS VIEWPOINT NEUTRALITY? THE CIRCULAR LOGIC OF GOVERNMENT SPEECH DOCTRINE JASON ZENOR * I. INTRODUCTION In June of 2015, the U.S. Supreme Court decided the case of Walker v. Sons of Confederate Veterans . 1 In a 5–4 vote, the Court upheld the State of Texas’s decision to deny the Sons of Confederate Veterans’ request for a specialty license plate that would show the organization’s symbol, which included a Confederate flag. 2 The Court upheld the denial as government speech, which is not bound by the usual First Amendment restrictions, because the government can speak as it chooses. 3 Liberals lauded the decision as furthering a national movement towards eliminating racial indignity, 4 while conservatives bemoaned it as activist judges who misread the flag’s symbolism for states’ rights. 5 But what was lost in all post-decision analysis was that the facts mattered little. With the government speech doctrine, even if the facts of the case had been reversed and Texas had endorsed the use of the Confederate Flag, that would have been protected as a form of government speech as well. 6 More than likely, the public reaction would have been the same, except the two political ideologies would have switched their position on the decision. Copyright © 2018, Jason Zenor. * Associate Professor, School of Communication Media and the Arts, The State University of New York Oswego. 1 Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2239 (2015). 2 Id. at 2245. 3 Id. at 2246. The Justices’ reactions were entirely political in nature and parallelled the political split in the court with the exception of Justice Thomas. 4 See Erwin Chemerinsky, A High Court Term Liberals Can Cheer , ORANGE COUNTY REG. (July 9, 2015), http://www.ocregister.com/articles/court-670820-justice-cases.html [https://perma.cc/G7EW-4UPG]. 5 See Ilva Shapiro, Supreme Court Allows Texas to Offend the First Amendment , AM. SPECTATOR (June 18, 2015), http://spectator.org/blog/63154/supreme-court-allows-texas-offend-first-amendment [https://perma.cc/5RGG-9XEK]. 6 Conversely, in March of 2016, the North Carolina District Court used Walker to uphold a pro-life message on a license plate. See ACLU of N.C. v. Tennyson, 815 F.3d 183, 184 (4th Cir. 2016). 2 CAPITAL UNIVERSITY LAW REVIEW [46:1 And still, the two conflicting viewpoints would have missed the most significant implication in this case—the government is allowed to discriminate against viewpoints it does not like if it endorses another viewpoint. 7 The legal justification for the government speech doctrine is that the government needs the ability to speak for itself to promote the policies it chooses. 8 The argument is that the government is accountable to the electorate, and if the citizens do not like the government’s message, then the citizens will change the government (and presumably the message). 9 But the expansion of the government speech doctrine may actually undermine this justification, as the Court in Walker tipped the scales in favor of the government by allowing the government to have total control over a forum that is a hybrid of government/private speech. 10 This new precedent may allow for the government to wield with absolute impunity more power as a speaker in the marketplace of ideas when it adopts the message as its own and rejects other viewpoints. 11 Despite being a relatively new legal doctrine, the government speech doctrine has grown into an absolute defense to First Amendment challenges. 12 In the short time since the decision in Walker , issues have arisen with states controlling political messages, including the acceptance of pro-life license plates in North Carolina, 13 the prohibition on a vanity plate “FMUSLMS” in Minnesota 14 and the postal service’s rejection of user-generated stamps considered political speech. 15 Accordingly, this Article argues that these types of government actions are antithetical to fundamental free speech jurisprudence and that the government speech 7 Walker , 135 S. Ct. at 2262. 8 Id. at 2246. 9 Id. 10 See id. at 2250. 11 Id. at 2254–55 (Alito, J., dissenting). 12 See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 571 (2005). 13 See ACLU of N.C. v. Tennyson, 815 F.3d 183, 185 (4th Cir. 2016). 14 David Post, Minnesota Apologizes for ‘Offensive’ License Plate; Governor Vows it Won’t Happen Again , WASH. POST (Feb. 22, 2016), https://www.washingtonpost. com/news/volokh-conspiracy/wp/2016/02/22/minnesota-apologizes-for-offensive-license-plate-governor-vows-it-wont-happen-again [https://perma.cc/2CKN-TAMQ]. 15 Zukerman v. U.S. Postal Serv., 220 F. Supp. 3d 27, 29 (D.D.C. 2016). Citizens can create their own custom stamps. Create Custom Stamps & Mail , USPS, https://www.usps.com/ship/custom-mail-stamps.htm [https://perma.cc/9YMM-R22F]. 2018] GOVERNMENT SPEECH DOCTRINE 3 doctrine needs to be narrowed. 16 First, this Article outlines the decision in Walker . Next, the Article examines the short history of the government speech doctrine. Finally, the Article argues why the government speech doctrine threatens the marketplace of ideas and then offers a more detailed and nuanced legal test. II. W ALKER V .S ONS OF C ONFEDERATE V ETERANS Similar to other states, the State of Texas offered automobile owners several different license plates from which to choose. 17 The general license plate displayed a silhouette of the State, the State’s name, and the State motto. 18 Texas also allowed for personalized vanity plates, which consisted of alphanumeric plate numbers. 19 Finally, Texas offered many specialty plates with the State’s name in various designs. 20 The vanity plates and specialty plates cost more than the general plates. 21 There are three ways in which the State of Texas decided the types of specialty plates to offer. 22 First, the state legislature could create specialty plates; for example, it adopted a “Keep Texas Beautiful” plate and another plate that had an image of the World Trade Center accompanied by the words “Fight Terrorism.” 23 Second, the state’s Licensing Board (the Board) could create its own specialty plates. 24 Finally, the Board could approve (or deny) a request from a private organization. 25 One justification for a denial was “if the design might be offensive to any member of the public . . . or for any other reason established by rule.” 26 However, the Board had stated that the private organizations compose the 16 “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (citing Police Dep’t v. Mosley, 408 U.S. 92, 96 (1972)). 17 Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2244 (2015). 18 Id. The motto is “The Lone Star State.” Id. 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 Id. For example, the Board approved a plate for the real estate company RE/MAX which read “Get it Sold with RE/MAX.” Id. The Board had the ability to accept or deny any request. Id. 26 Id. at 2245 (citing Tex. Transp. Code Ann. § 504.801(c) (West 2012)). 4 CAPITAL UNIVERSITY LAW REVIEW [46:1 message; 27 the Board simply ensured it comported with various state regulations. 28 In 2009, the Sons of Confederate Veterans (SCV) requested a specialty license plate 29 that would say “Sons of Confederate Veterans 1896” and show the organization’s symbol, which included a Confederate flag. 30 It would also include Texas at the top of the plate. 31 The Board summarily denied this initial request. 32 In 2010, the SCV reapplied. 33 This time, the Board allowed for public comment on the application. 34 In light of the public comments deeming the symbol offensive, the Board unanimously denied the request. 35 The SCV then sued the Board claiming that the denial was a violation of the First Amendment. 36 The district court ruled in favor of the Board, but the Fifth Circuit reversed the ruling, holding that 27 Id. at 2248. 28 “Q. Who provides the plate design? A. You do, though your design is subject to reflectivity, legibility, and design standards.” Id. at 2260 (Alito, J., dissenting) (quoting Defs.' Mot. Summ. J. [# 37–2], Ex. 3 (specialty plate brochure)). The brochure read: “Depending on which approval route you choose, My Plates or TxDMV will work with your organization to help you understand those standards.” Proposing a Specialty License Plate , TEX. DEP’T OF MOTOR VEHICLES (July 2014), http://www.txdmv.gov/txdmvforms/doc_download/674-how-to-propose-a-specialty-license-plate [https://perma.cc/D2ZG-BDL8]. 29 Walker , 135 S. Ct. at 2245. The Sons of Confederate Veterans is a fraternal organization whose members claim to be descended from veterans who fought for the Confederacy during the Civil War. What is the Sons of Confederate Veterans , SONS OF CONFEDERATE VETERANS (Aug. 21, 2017), http://www.scv.org/about/whatis.php [https://perma.cc/DVG4-YH5Q]. 30 Walker , 135 S. Ct. at 2245. 31 Id. 32 Id. 33 Id. 34 Id. 35 Id . The Board stated in the denial letter: It [is] necessary to deny th[e] plate design application, specifically the confederate flag portion of the design, because public comments ha[d] shown that many members of the general public find the design offensive, and . . . that a significant portion of the public associate the confederate flag with organizations advocating expressions of hate . . . . Id. (alteration in original). 36 Id. 2018] GOVERNMENT SPEECH DOCTRINE 5 the State had made a content-based decision concerning private speech. 37 The State appealed to the Supreme Court of the United States, which granted certiorari. 38 In a 5–4 decision, the Supreme Court of the United States reversed the Fifth Circuit’s decision, 39 holding that the State’s action constituted government speech and thus was not bound by the First Amendment. 40 Generally, the government “can speak for itself” 41 and the only check on government speech is the electoral...