Two rulings last week by the Supreme Court highlight differences in the protection of speech depending in part on who is speaking and reveal some of the ways the justices assess First Amendment claims.
By a vote of 5 to 4, the Court affirmed, in an appeal by the Texas Division of the Sons of Confederate Veterans, that speech by the government may not be challenged as violating the Constitution. Separately, by a unanimous judgment that stretched across four concurring opinions, the Court invalidated a code adopted by the town of Gilbert, Arizona that governed the display of billboards and outdoor signs.
The rulings “are likely to be analyzed together from here on, to determine how—and whether—they fit into the strong pattern that the modern Court had followed in more or less steadily expanding free-speech rights,” Lyle Denniston observed at Scotusblog. “Indeed, in some ways the outcomes seemed contradictory, and the splintering of the Court added to that appearance.”
In the case from the Lone Star State, the Court reviewed the veterans group’s challenge of a decision about five years ago by the Texas Department of Motor Vehicles Board, which rejected the group’s proposal for a license plate featuring a Confederate battle flag. Comments filed by the public as part of the review process showed that many people considered the design offensive, the board said. (The proposal preceded the massacre at Emanuel African Methodist Episcopal Church in Charleston that, among other things, has renewed calls to remove the Confederate flag from the state capitol.)
Though the trial court backed the board, the 5th Circuit U.S. Court of Appeals reversed, concluding that the board, in declining to approve the design, discriminated against the veterans’ viewpoint in violation of the First Amendment.
The Court disagreed. “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says,” Justice Breyer wrote for a majority joined by Justices Thomas, Ginsburg, Kagan and Sotomayor. “That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech.”
A review of the program by which Texas considers proposals for specialty license plates shows that “Texas explicitly associates itself with the speech on its plates” and that someone who displays a message on a license plate issued by the state “likely intends to convey to the public that the state has endorsed that message,” explained Justice Breyer. “If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate.”
The First Amendment applies to government regulation of speech by members of the public, not to speech by the government, the majority noted. Members of the public who disagree with speech by the government have both the freedom to criticize the government’s views and to vote elected officials out of office, the Court explained. Democracy itself “provides a check on government speech,” Justice Breyer noted.
The alternative—subjecting speech by the government to the strictures of the First Amendment—would not work, Justice Breyer noted, adding:
“How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials had to provide the prospective of those who oppose this type of immunization?”
But specialty license plates do not constitute government speech, countered the dissenters, who likened the plates to a so-called limited public forum, which allows state property to be used by private speakers, such as when a city turns over its municipal auditorium for a candidates’ debate. In those cases, the dissenters noted, the First Amendment prevents the government from discriminating on the basis of viewpoints. As Justice Alito explained:
“The Confederate battle flag is a controversial symbol. To the Texas Sons of Confederate Veterans, it is said to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil War. To others, it symbolizes slavery, segregation, and hatred. Whatever it means to motorists who display that symbol and to those who see it, the flag expresses a viewpoint. The Board rejected the plate design because it concluded that many Texas would find the flag symbol offensive. That was pure viewpoint discrimination.”
The State of Texas has authorized more than 350 specialty license plates, including plates bearing the names of high schools, fraternities or sororities, the Daughters of the American Revolution, a favorite soft drink and a favorite NASCAR driver, Justice Alito observed. Would someone sitting at the side of a highway in Texas, watching the vehicles pass by, “really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?” he asked. “If a car with a plate that says ‘Rather Be Golfing’ passed by at 8:30 am on a Monday morning, would you think: ‘This is the official policy of the State—better to golf than to work?’”
On the other hand, attempts by the government to regulate speech will be presumed unconstitutional whenever the regulation differentiates among private citizens based on the content of their message. The town of Gilbert, a city of roughly 209,000 people that sits about 22 miles southeast of Phoenix, established rules for the display of outdoor signs based on three categories: those that conveyed so-called ideological messages, those that aimed to influence the outcome of an election, and those that directed people to a gathering of a religious, charitable or nonprofit organization.
At issue was an appeal by the Good News Church, which the town fined for posting between 15 and 20 temporary signs that advertised upcoming services. The signs omitted a date for the assemblies and remained posted for longer than the 13 hour-period that concluded one hour after the services. The town cited the church, which sued.
A trial court sided with the town. The 9th U.S. Circuit Court of Appeals agreed, concluding that the code did not discriminate among displays based on the content of their message.
The Court reversed the ruling. “The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign,” Justice Thomas wrote in an opinion joined by Justices Roberts, Scalia, Kennedy and Sotomayor. “On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.”
According to Thomas, the appellate court’s determination that the code did not regulate speech based on the town’s disagreement with any particular message disregarded the need to determine initially whether the law as written avoided distinctions based on the message being conveyed.
In upholding the code, the 9th Circuit had determined that the town’s attempt to regulate signs had nothing to do with the content of their messages. But that overlooked “the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face,” Justice Thomas wrote. “In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral. Thus, a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.”
That view went too far, according to Justices Breyer and Kagan, who wrote separately to covey their view. “Regulatory programs almost always require content discrimination,” Justice Breyer noted. “And to hold that such content discrimination triggers strict scrutiny is to write a recipe for judicial management of ordinary government regulatory activity.”
As Justice Breyer noted, the government requires that public companies include certain content in securities filings, that labels for prescription drugs bear the symbol ‘Rx only,” that rules requiring confidentiality of medical records allow a physician to disclosed that a patient has HIV to the patient’s spouse or sexual partner, and that commercial airplane pilots must ensure that each passenger has been advised to fasten his or her seatbelt. According to Justice Breyer:
“The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification.”
Despite the ruling, three of the four opinions gave little guidance to municipalities, which may be left to wonder how they might regulate the placement of billboards without contravening the Constitution. That fell to Justice Alito, who, in a concurrence joined by Justices Kennedy and Sotomayor, offered some examples of how to regulate outdoor signs other than by reference to the content of the billboards themselves:
“I will not attempt to provide anything like a comprehensive list, but here are some rules that would not be content based:
Rules regulating the size of signs. These rules may distinguish among signs based on any content-neutral criteria, including any relevant criteria listed below.
Rules regulating locations in which signs may be placed. These rules may distinguish between free-standing signs and those attached to buildings.
Rules distinguishing between lighted and unlighted signs.
Rules distinguishing between signs with fixed messages and electronic signs with messages that change.
Rules that distinguish between the placement of signs on private and public property.
Rules distinguishing between the placement of signs on commercial and residential property.
Rules distinguishing between on-premises and off-premises signs.
Rules restricting the total number of signs allowed per miles of roadway
Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed.”
That’s not to suggest that all regulation of speech that does not encompass content comports with the First Amendment. Rules that set the so-called time, place and manner of speech must be narrowly tailored to serve a legitimate government interest but, as Justice Alito, explained, “need not meet the high standard imposed” on regulations that regulate speech based on its content or the speaker’s viewpoint.
At least some municipalities welcomed the ruling, which impacts most local governments. “Gilbert looks forward to the opportunity to review its own regulations to make necessary changes consistent with the Supreme Court’s decision,” Michael Hamblin, the town’s attorney, said in a statement.