First Amendment Qualms: Government Speech and Moral Society

By Maja Thomas ’17

Last August, the California state government decided to institute a ban on the Confederate flag in the state. The bill, Assembly Bill No. 2444, was passed with a 71-1 vote. Tim Donnelly (R-Twin Peaks) was the only Assembly member to vote against the bill, citing being a “strict Constitutionalist” and believing the “bill is antithetical to the First Amendment, which was designed to protect controversial forms of speech.”

However, the bill solely applies to state actions and dictates that, “the state of California may not sell or display the Battle Flag of the Confederacy, also referred to as the Stars and Bars, or any similar image, or tangible personal property, inscribed with such an image.” The law does include an exemption for books, digital media, or state museums that serve an educational or historical purpose. Since the law pertains solely to government speech, it cannot be ruled unconstitutional. Personal free speech remains fully intact. The law does not limit persons from purchasing Confederate flags or Confederate flag-inscribed materials and displaying them. It also does not apply to people protesting or entering government property. Still, the bill has received significant backlash from some members of the public, who believe that any restrictions on government speech would eventually influence restrictions on personal speech.

Isadore Hall, the primary sponsor of the bill, commended that it would “send a strong message that California and its taxpayers will not be in the business of promoting racism, exclusion, oppression, or violence towards others.” The flag, which proponents argue serves as an important symbol of “states’ rights” or Southern heritage, is also reflective of modern-day discrimination (the flag is widely used by white supremacist groups) and injustices stemming from a proposed nation, the Confederate States of America, which fought to retain slavery as an economic institution.

Through various Supreme Court rulings, it has been made clear that free speech protections do not pertain to government actions. Nevertheless, it is not always clear what is public (government) speech versus private (personal) speech. Such is the disagreement stemming in the ongoing case, Walker v. Texas Division, Sons of Confederate Veterans, Inc. The non-profit aiming to “preserve the history and legacy” of Confederate soldiers applied for a novelty license plate design and was refused by the state of Texas. The Texas Department of Motor Vehicles Board voted unanimously to reject the license plate because of the common association between the flag and “organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.” The Board believed that because a license plate is government issued, it had the right to restrict speech under the government-speech doctrine “if the design might be offensive to any member of the public.” However, the respondents questioned whether the messages on state-issued vanity plates qualify as government speech. Furthermore, they questioned whether the state engaged in ‘viewpoint discrimination’ when rejecting the Sons of Confederate Veterans plate.

The type of speech that constitutes specialty plates certainly sits within a grey area between public and private. It is the private choice of individuals to purchase vanity plates and the display them on their cars, which would lend it to be part of the driver’s First Amendment rights. However, the State of Texas funds the construction of specialty plates, with the proceeds of the additional cost usually going to the specified organization. Thus, if the State is funding the creation of these plates, it can also be seen as the government speaking for itself in the same light as California’s vending of Confederate flag-inscribed materials. Therefore, using the same logic, it would be up to the discretion of the Board to approve or reject designs. If it is indeed public speech, the state is able to disassociate with ideals, messages, or images it does not wish to promote.

Regardless of whether the plates are considered public or private speech, Texas did seem to engage in viewpoint discrimination when it chose to reject the Sons of Confederate Veterans’ plate. It is worth noting that government speech does not require viewpoint neutrality, thus if it is found to be public speech viewpoint discrimination would not apply. Nevertheless, as noted above, the Board bases its decisions to reject a specialty design if it may offend a member of the public. The decision of whether a plate is possibly offensive is up to the Board and remains potentially biased. How does the Board decide what could be offensive? The Board has approved potentially contentious plates, such as “Choose Life,” “Boy Scouts of America,” or “God Bless Texas.” Could those plates be considered offensive to someone who has had an abortion, who was barred or discriminated against from the Boy Scouts due to sexuality or gender identity, or who was atheist? Certainly the image of the Confederate flag carries more controversy and weight than these plates, but how would you designate a line between what someone could find offensive? If the plates are seen as government speech and their content could be considered a State promotion, some member of the public might find each plate offensive. The decision of what could constitute offensive, if going by their criteria of “any member,” is too broad to be effective. Texas needs to further define a coherent criterion of what might be considered offensive.

It is also worth noting Texas seems to have contradictory stances on the use of the Confederate flag. Unlike California, the state has not proposed a ban on the flag, and continues to sell them in gift shops and celebrate Confederate Heroes Day. If Texas wishes to ban the Sons of Confederate Veterans’ plate, they need to keep a consistent viewpoint and decide if they want to eliminate the flag from government promotions entirely or allow it to be present. Texas’ inconsistent stance on whether to allow the display of the Confederate flag has significantly weakened its case. A final ruling is expected later this month.

There still exists significant debate between the preservation of free speech and the promotion of unjust or offensive materials. The deep history of the Civil War and aspirations of the former Confederate States remain contentious even in contemporary society. Certainly displays of the Confederacy and the Confederate flag are unpopular speech, but differing views are exactly what the free speech clause intends to safeguard. While private speech is protected to allow a free society in which members can express their views, public speech is designed to be restricted. Yet it is not always clear where the line between the two is drawn. As we continue to determine what is public versus private, it will be interesting to see where this border is defined.