Two recent Supreme Court decisions provide timely guidance on the First Amendment implications of publicly displaying the Confederate Flag or other symbols or signage related to protected beliefs. First, in Walker v. Sons of Confederate Veterans, the Supreme Court rejected a private organization’s request for a specialty license plate featuring the confederate flag on the ground that license plates are government speech, not public forums for protected First Amendment expression. Second, in Reed v. Town of Gilbert, the Supreme Court applied strict scrutiny to invalidate a law that permitted the display of religious, ideological, and political signs without a permit but that regulated the type, size, and location of such signs based upon their content-based categorization. Walker thus expands the potential for characterizing signs as government speech immune from First Amendment challenge, while Reed reinforces strict First Amendment limits on government regulation of private speech in public forums.
Walker v. Sons of Confederate Veterans
On June 18, 2015, the Supreme Court of the United States held that Texas’s specialty license plate designs constitute government speech, and therefore Texas may refuse to issue plate designs.
Respondents, a non-profit organization called the Sons of Confederate Veterans (“SCV”), submitted a request for a specialty license plate featuring the confederate flag to the Texas Department of Motor Vehicles Board (“Board”) pursuant to Texas statute. As permitted under the statute, the Board rejected the design because it determined, after public comment, that the design was offensive to many members of the general public. The SCV subsequently brought suit against the chairman and members of the Board, claiming their refusal to approve the license plate design violated their free speech rights under the First Amendment.
The Supreme Court applied a three-part test adapted from Pleasant Grove City v. Summum, 555 U.S. 460 (2009) in which the Court looked at the history of the place, the purpose and nature, and the government’s level of control over the place or item at issue. In part one of the test, the Court found that “the history of license plates shows that, insofar as license plates have conveyed more than state names and vehicle identification numbers, they long have communicated messages from the States” through the use of state symbols, slogans, and other messages. In part two of the test, the Court found that “the governmental nature of plates is clear from their faces: The State places the name ‘TEXAS’ in large letters at the top of every plate.” Further, “the State requires Texas vehicle owners to display license plates, and every Texas license plate is issue by the State.” Id. at 10. “Texas license plates are, essentially, government IDs,” and “issuers of IDs typically do not permit the placement on their IDs of message[s] with which they do not wish to be associated.” Id. at 10 (citing Summum, 55 U.S. at 471) (internal quotation marks omitted). Lastly, in part three, the Court found that Texas maintained direct control over the messages conveyed on its specialty license plates, demonstrating that Texas chooses “how to present itself and its constituency.” Id. at 11. Importantly, the Court’s ruling was not based on the fact that members of the public found the license plate offensive; rather, the ruling was based on the government's right to choose the content of its speech.
Finally, the Court held that the specialty license plates were not a traditional public forum, a limited public forum, or a nonpublic forum because the State exercised final authority and ownership of each specialty plate design, and license plates have been traditionally used as government speech and a form of government ID. Neither private parties’ involvement in the design of specialty plates, the number of specialty plates created, nor the extra fees charged for specialty plates affected the Court’s analysis.
The Court’s holding here is particularly relevant in light of recent events surrounding Confederate flags flown by state governments. The Court’s holding makes clear that state governments have the right to determine with which messages they want to associate and convey as well as with which messages they do not want to associate or convey. Presumably then, states can choose whether or not they want to fly a Confederate Flag on state grounds, (assuming the flag is not deemed hate speech or fighting words). At the same time, the opinion left the door open for future challenges by individuals asserting their right to be free of state compelled speech, potentially even on license plates. As the Court stated in its opinion, the fact that the specialty license plates are government speech “does not mean that the designs do not also implicate the free speech rights of private persons,” and “the First Amendment stringently limits a State’s authority to compel a private party to express a view with which the private party disagrees.” Id. at 17–18. Perhaps we will see more challenges on this front in the future.
Reed v. Town of Gilbert
On June 18, 2015, the Supreme Court of the United States held that the Town of Gilbert’s Sign Code that restricted the type, size, and location of signs based on whether the sign fell into different categories was content based on its face and therefore subject to strict scrutiny. Because the town could not demonstrate that the sign restrictions furthered a compelling interest and were narrowly tailored to achieve that interest, the Court held the restrictions unconstitutional.
The Town of Gilbert prohibited the display of outdoor signs anywhere within the Town without a permit unless the sign fell within one of 23 exempted categories. The Court focused on three of the exempted categories in particular: “Ideological Signs,” “Political Signs,” and “Temporary Directions Signs Relating to a Qualifying Event.” Different size, time, and placement requirement applied to each of these categories.
Petitioners, Good News Community Church and its pastor, Clyde Reed, did not have a permanent location and held services in a variety of different locations. Petitioners informed the community of that week’s location through the use of temporary signs. Petitioners brought suit after receiving two citations for violating the Sign Code’s “Temporary Directions Signs Relating to a Qualifying Event” regulations. The district court denied Petitioners’ preliminary injunction and the 9th Circuit affirmed on the basis that the sign regulations did not violate the First Amendment because it did not regulate speech based on content.
The Supreme Court reversed the 9th Circuit, and held that the Sign Code violated the First and Fourteenth Amendments. The Court rearticulated the test for content neutrality as follows. First, a court must determine whether a law is content neutral on its face. If the law is content based on its face, the inquiry stops there and strict scrutiny applies. Second, if the law is not content based on its face, the court must then determine whether the law has a content based purpose or justification and, if so, strict scrutiny must be applied. To survive strict scrutiny, the government must show that the law has a compelling government interest that is narrowly tailored to achieve that interest. The Court did not assert that all ordinances regulating sign usage are subject to strict scrutiny, however. Laws that are content neutral on their face and do not have a content based purpose or justification remain subject to the less stringent, intermediate scrutiny review. Reed fine-tuned time-place-manner restriction precedent without overhauling it.
Applying this test to the facts at hand, the Court determined that the law was content based on its face because the applicable restrictions varied depending on what the sign was intended to communicate. Further, the Court held that the Town’s interest—preserving the Town’s aesthetic appeal and traffic safety—were not compelling and narrowly tailored because “temporary directional signs are ‘no greater an eyesore’ than ideological or political ones,” and the Town failed to show “that limiting temporary directions signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not.” Id. at 15 (internal citations omitted).
Finally, the Court stated that this opinion does not render all sign ordinances unconstitutional. Rather, “[a] sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses—well might survive strict scrutiny.” The ordinance at issue in this case, however, did not pass the test.