Earlier today the Court handed down its ruling in Walker v. Sons of Confederate Veterans. The vote was 5-4 with Justice Stephen Breyer writing for the majority and Justice Samuel Alito in dissent (joined by the Chief Justice and Justices Scalia and Kennedy). In an unusual twist, Justice Clarence Thomas voted with the Court’s liberal bloc.
The Court held that Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring SCV’s proposed design. Specifically, the Court ruled that
- When the government speaks it is not barred by the Free Speech Clause from determining the content of what it says, and
- The Court’s precedents regarding government speech provide the appropriate framework through which to approach the case
“The fact that private parties take part in the design and propagation of a message,” wrote Breyer, “does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider.” He added: “Additionally, the fact that Texas vehicle owners pay annual fees in order to display specialty license plates does not imply that the plate designs are merely a forum for private speech.”
Writing in dissent, Justice Alito argued: “The Court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing. Under our First Amendment cases, the distinction between government speech and private speech is critical. The First Amendment “does not regulate government speech,” and therefore when government speaks, it is free “to select the views that it wants to express.” Pleasant Grove City v. Summum, 555 U. S. 460, 467–468 (2009). By contrast, “[i]n the realm of private speech or expression, government regulation may not favor one speaker over another.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828 (1995).”
Later, Alito argued that the majority’s “capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous. They make motorists happy, and they put money in a State’s coffers. But the precedent this case sets is dangerous. While all li- cense plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards be- cause the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.”
→ Commentary: Ilya Shapiro, Supreme Court Allows Texas to Offend the First Amendment,” Cato Institute, June 18, 2015
THE COURT’S 2014-15 FREE EXPRESSION DOCKET
[last updated: 6-18-15]
Cases Decided
- Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
- Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
- Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
Review Granted & Cases Argued
- Reed v. Town of Gilbert (argued 1-12-15)
Pending Petitions*
- Berger v. American Civil Liberties Union of North Carolina (license plate case)
- Thayer v. City of Worcester (last distributed for Conference of January 9, 2015)
- Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
- Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
- Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)
Review Denied*
- Walker-McGill v. Stuart
- O’Keefe v. Chisholm
- King v. Christie
- Apel v. United States
- Dariano v. Morgan Hill Unified School District
- The Bronx Household of Faith v. Board of Education of the City of New York
- Arneson v. 281 Care Committee
- Kagan v. City of New Orleans
- ProtectMarriage.com-Yes on 8 v. Bowen
- Clayton v. Niska
- Pregnancy Care Center of New York v. City of New York
- City of Indianapolis, Indiana v. Annex Books, Inc.
- Ashley Furniture Industries, Inc. v. United States
- Mehanna v. United States
- Stop This Insanity Inc Employee Leadership Fund et al v. Federal Election Commission
- Vermont Right to Life Committee, et al v. Sorrell
* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.