by Michael Dorf
Justice Breyer's majority opinion in Walker v. Texas Div., Sons of Confederate Veterans (SCV) is so badly reasoned that it cannot be taken seriously at face value. After explaining why I think Justice Alito's dissent is more persuasive, I'll explore why both the majority and dissent disregarded proposals for an intermediate category of mixed government/private speech.
First, a quick overview. For a substantial fee, Texas, like many states, offers "specialty" license plates. There are hundreds of off-the-rack plates expressing support for various civic organizations, causes, leisure-time activities, etc., and also the possibility of approval for a custom-designed plate. SCV applied for a specialty plate with its name and a Confederate Battle Flag logo but the relevant Texas agency rejected it after a public hearing on the ground that it would be considered offensive to many Texans. SCV sued, claiming censorship.
The SCOTUS ruled 5-4 in favor of the state, with Justice Thomas joining the four most liberal members of the Court in the majority. The lineup is interesting, no doubt, but I'll mostly leave for others the job of speculating about why Justice Thomas broke ranks from the other conservatives. (One possibility is that despite his general conservatism, Justice Thomas, as only the second African American ever to serve on the Court, has a special understanding of the meaning of the Confederate Battle Flag.)
As I explained in a Verdict column when the Supreme Court granted review in SCV last December, the case appeared to turn on whether the Texas specialty license plate is understood as government speech or private speech in a limited public forum. And that is in fact how it came down. The majority says it's government speech, so the government wins because "SCV cannot force Texas to include a Confederate battle flag on its specialty license plates." The dissent says it's private speech on a government-created forum for tiny billboards and that the viewpoint-based restriction is invalid.
The majority opinion makes some sound arguments for why government speech in general should not be subject to the same restrictions as government regulation of private speech. But it is really quite unpersuasive in showing that the Texas program is government speech.
The Court says: "The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider." That's true as a general matter, but as Justice Alito explains with some devastating examples, the evidence is really overwhelming here that the government is not seeking to convey, as its own, the various messages that it approves for specialty plates. Here is just one of Justice Alito's illustrations: The state issues specialty plates "with the names of the University of
Texas’s out-of-state competitors" in collegiate athletics, including "Notre Dame, Oklahoma State, the University of Oklahoma,
Kansas State, [and] Iowa State." Yet it cannot possibly be inferred "that the
State of Texas was officially (and perhaps treasonously)
rooting for the Longhorns’ opponents."
Justice Breyer really provides no answer to this example and others like it. He merely concludes that the specialty plates are government speech because Texas exercises the power to deny plates that it disapproves of. But while that may be technically relevant to whether Texas has created a "forum" for speech, it does not show that Texas is conveying as its own just those messages that Texas car owners pay to have displayed on their license plates.
Meanwhile, although Justice Alito does an excellent job of showing why the majority is wrong to conclude that Texas is engaged in anything like pure government speech, his opinion does not really confront the basic problem. Justice Alito is right that even in a limited public forum the government cannot engage in viewpoint discrimination, but in most limited public fora it is clear to the public that the speech at issue is wholly private. State-issued license plates are potentially different, however. Although Justice Alito's examples show that Texas does not intend to convey as its own all of the messages on specialty license plates, there is nonetheless a substantial risk that Texas nonetheless will convey some level of government endorsement of the private speech on the specialty plates. During the oral argument, the lawyer for SCV contended that the state could respond to that risk with a disclaimer, but Justice Sotomayor was rightly skeptical about finding room for such a disclaimer on a license plate.
Given the record, it is understandable that Justice Alito characterized the government interest here as one in avoiding offending the public. The First Amendment does not permit the government to engage in viewpoint discrimination to protect the public against offensive speech by private speakers. However, the government does have a real interest in avoiding being seen by the public to endorse offensive messages. Justice Kennedy asked the SCV lawyer during the oral argument whether the First Amendment obligated Texas to issue specialty license plates containing racial slurs. He bit the bullet and said yes, but that strongly suggests that this is the dissent's position as well: If the government cannot censor racist slurs on bumper stickers--and it cannot--then it must issue specialty license plates containing racist slurs (or issue no specialty plates at all). Can that really be the meaning of the First Amendment?
In the end, both the majority and the dissent are unsatisfying because, as Professor Caroline Corbin has argued, specialty plates fall into an intermediate category of "mixed" government/private speech. In my December Verdict column, I acknowledged that recognizing such an intermediate category would not magically turn hard cases into easy ones, but I argued that it would be less artificial than pretending that mixed speech is pure government speech (as the SCV majority does) or that it is pure private speech (as the SCV dissent does).
No one on the Court opted for the mixed-speech category, either in SCV or in the Summum case, on which the majority relied heavily. Justice Souter's concurrence in Summum came close to recognizing a mixed-speech category but even he concluded that the government's decision whether to accept a monument in a public park was ultimately government speech and, in any event, Justice Souter retired from the Court shortly after that decision.
Why are there no takers for mixed speech? I'll suggest two possible explanations. First, it is almost always easier to write an opinion (or dissent) that applies existing doctrinal categories. Minting a new category would be bolder and would be harder to disguise as the mere application of pre-existing law.
Second, despite the Justices' disagreement here and from time to time on other First Amendment issues, the Roberts Court generally is a strongly pro-free-speech Court across the ideological spectrum. And for roughly the last half century, strong protection of free speech has been closely associated with rules rather than with standards or balancing. To create a category of mixed government/private speech would almost inevitably be to adopt a balancing approach. That is what Professor Corbin proposed (intermediate scrutiny) and that is also what Corey Brettschneider and my colleague Nelson Tebbe proposed in their NY Times op-ed endorsing a mixed-speech approach.
Although it can be argued that numerous Supreme Court doctrines tacitly balance the good of speech against other goods, express balancing has long been associated with the sort of inadequate protection for speech championed by Justice Frankfurter. Thus, the Court's rejection of any middle ground in SCV can be understood as ultimately speech-protective, even as the free speech side of the case lost.