Monday, March 30, 2015

What constitutes as Government Speech?

Recently the Sons of Confederate Veterans, tried to display Confederate battle flags on their specialty license plates. The state of Texas excluded this particular design from its specialty-plate program. The Confederate flag style plate was excluded from the program because it violated their policy against “offensive” messages on specialty plates. The states that allow these specialty license plates are permitting private organizations to create special plates that vehicle owner’s purchase for their car. In most cases a portion of the proceeds goes to the private company that sponsors the plates. Walker v. Texas Division, Sons of Confederate Veterans, gives the Supreme Court the opportunity to clarify whether the First Amendment is applied when state and private actors work together to produce speech. The Court also has a chance to elaborate on what qualifies as “government speech” which is not subject to the First Amendment at all. Lower Courts have had trouble discerning whether states are presenting and supporting government messages through their involvement in the specialty-plate programs. Or, could these states simply be promoting private messages and views of citizens in their state? This confederate flag case is a bit out of character for license plate disputes across the U.S. Mainly, these cases consist of national discussion of abortion-related speech and the national use of the “Choose Life” License plate, which is available in 29 states.
I believe it goes against the Sons of the Confederate Veterans First Amendment right of freedom of speech to not allow them the specialty-license plate exemption. These specialty plate programs are only designed to create revenue for the state and the organizations creating them. It is up to the individual how they would like to express themselves in their own car or truck. Walker v. Texas Division, Sons of Confederate Veterans and the license plate programs create a newfound public forum in my opinion and therefore must be protected by the First Amendment. The state and the organizations involved in the specialty plate programs must judge all requests for specialty-plates with neutrality and decide accordingly. In my opinion, this is not “government speech” just because it is a state license plate. This is just a glorified bumper sticker that people can so choose to have. By having the specialty-plate option, the state is inviting the public to join in a public forum of expression and allowing the plates to say what the public wants. This could open a slippery slope because the state of Texas would be required to allow plates that may bear a swastika or other “offensive” signs. The states that do allow specialty plates should either judge all requests for license plate alterations neutrally or not allow any difference in appearance and require complete uniformity of the license plates. This issue is important because it speaks to a new and up and coming public forum that is beginning to come about. The Court has made rulings in the past regarding the treatment of license plates as private property. Historically in Wooley v. Maryland the court ruled that motorists could not be compelled to carry the New Hampshire motto “Live Free or Die.” This case may set a new precedence in how license plate space is treated in the future and to what lengths the First Amendment will stretch to cover expression. The distinction that must be made here is whether you view the license plate as the driver’s speech or as the states.

Where do you stand?

1 comment:

Tommy S said...

I disagree with Brandon on this one. Specialty licence plates that convey a symbol that has historically been linked to racism and oppression should not be allowed. Since licence plates are required by state law, this would be government endorsement of the Confederate Flag and its message of hate. If people want to put the confederate flag on their cars then they can use bumper stickers but not licence plates.