« Oklahoma’s Latest Invention: Execution by Nitrogen Gas | Main | When One Case Becomes About Another: Kerry v. Din and the Same-Sex Marriage Litigation »

Thursday, June 18, 2015

First Amendment Day at SCOTUS

SCOTUS on Thursday decided the final free speech cases of the Term.

In Walker, the Court held that the messages on specialty license plates constitute government speech rather than private speech is a government-created public forum. The Court split 5-4; Breyer wrote for Thomas, Ginsburg, Sotomayor, and Kagan, while Alito dissented joined by the Chief, Scalia, and Kennedy.

When this issue first began bubbling up in the '90s, my quick conclusion (even before Summum, the case at the heart of the dispute between the majority and the dissent) was that specialty plates were government speech. Governments used these plates for their own messages ("Live Free or Die" "Famous Potatoes" "The Lone Star State") and the specialty-plate programs simply expanded the range of message government would adopt and present as its own.* And a viewer can understand that a driver with one of those plates agrees with that message.

[*] By contrast, I believed--and still do--that alpha-numeric codes used in vanity plates constitute individual speech in a limited public forum that should be subjected to closer First Amendment scrutiny.

But Alito's dissenting opinion was quite convincing, particularly in that it was an excellent and very accessible read. I was particularly moved by the two hypotheticals he presented--1) an electronic highway billboard containing some government messages, but on which government opens space for private speakers to rent space for their own messages and 2) a public-university campus bulletin board or listserv which includes some government messages and is open to private messages. Alito's point is that, under the majority's analysis, these speech locations could as easily be called government speech and government "adoption" of certain paid-for private messages.

The second decision is Reed v. Town of Gilbert, holding that a municipal sign ordinance that imposed less-favorable conditions on "directional" signs compared with "ideological" or "political" signs was content-based and did not survive strict scrutiny. Thomas wrote for the Chief, Scalia, Kennedy, Alito, and Sotomayor, with Alito, joined by Kennedy and Sotomayor also adding a concurrence; Kagan, writing for Ginsburg and Breyer, concurred only in the judgment, with Breyer adding his own concurrence-in-the-judgment. Based on some listserv discussions, this could line up as a significant case on the ground.

The cornerstone of Thomas' opinion is a broad construction of what constitutes a content-based (in the sense of subject-matter-based) restrictions subject to strict scrutiny. He identified four categories of content-based regulations: 1) Those that are content-based on their face by defining the regulated speech by its subject-matter; 2) those that define the regulated speech by its function or purpose; 3) those that are facially content-neutral, but that cannot be justified without reference to the content of the regulated speech (that is, the underlying harms only arise because of the content of the speech); and 4) those that are facially content-neutral, but that were adopted by the government because of disagreement with the message conveyed by the regulated speech. For those who view the content-neutrality requirement as an important means of protecting First Amendment interests, there is a lot to like in this. If Thomas is serious about this taxonomy, it could be used to look under the hood of a significant number of seemingly content-neutral regulations that really were enacted to limit certain speech and certain speakers, especially speech and speakers associated with a particular location.** The last two categories also will prevent government from pleading "pure" legislative motive so as to avoid strict scrutiny. [Update: Some email discussions raise the possibility that Thomas's taxonomy eliminates the "secondary effects doctrine" for regulating nude dancing and other sexually explicit speech, one of the clearest examples of a facially content-based regulation treated as content-neutral]

[**] While I hate playing amateur psychologist, one obvious example would be the buffer-zone and other regulations on reproductive-health clinic protests, such as in McCullen and Hill, which were treated as content-neutral, but which would seem to fall into the fourth category.

Kagan, Ginsburg, and Breyer were troubled by this seeming expansion of non-neutrality, perhaps because of concerns for what this might mean for commercial regulations or other innocuous regulations that do not pose meaningful threats to public debate (for example, allowing for permanent "Hidden Driveway" signs but not other permanent signs). Breyer even offered a new, more even balancing test placing less of a thumb on the scale of free speech, asking whether the harm to First Amendment interests is disproportionate in light of the state's regulatory interests (he offered a similarly soft balancing test in his concurrence in the judgment in Alvarez). Kagan insisted that it was unnecessary to determine whether the ordinance was content-based, since it could not even survive intermediate scrutiny as a content-neutral regulation; the ordinance was both overbroad and under-inclusive and the government offered no reasons for the distinctions or limitations it imposed.

Posted by Howard Wasserman on June 18, 2015 at 01:25 PM in First Amendment, Howard Wasserman | Permalink


The listserv seems pretty different to me, and I don't know that I'm bothered by the billboards. The state makes and sells the plates, puts its name on them, owns them, requires Texans to have them in order to drive, etc. The listserv is like that in that.. the state university creates the listserv and sometimes posts its own messages? They have nothing to do with the students' messages, other than providing the forum for them. It's like the digital equivalent of a park. The billboard's also distinguishable, though less so.

Posted by: Asher | Jun 18, 2015 9:00:39 PM

There was a very recent CA2 case, a particularly divided 2-1 split, dealing with these same issues but premised on the idea that these license plate messages are private speech. Curious that they would issue such a decision, argued in 2012, given the pendency of this case.

Posted by: JD | Jun 18, 2015 2:08:13 PM

The comments to this entry are closed.