Supreme Court's First Amendment rulings are nuanced, not at odds

On June 18 the Supreme Court issued several opinions, among them two First Amendment decisions: Reed v Town of Gilbert, Arizona, and Walker v. Texas Division, Sons of Confederate Veterans.

While several prominent analysts have decried these decisions as being fundamentally at odds with each other, the only word I would use to describe the both is: reasonable.

Full disclosure: I teach courses on the First Amendment and co-wrote an amicus brief in Reed v. Town of Gilbert on behalf of what would become the winning side. I also hosted a mock trial at Emory School of Law for David Cortman, who argued the case, to practice in front of a bench of experts.

As someone who is often critical of Supreme Court decisions, especially in regard to First Amendment jurisprudence, I feel like when (at least in my opinion) the Court does get it right, the decision should be applauded. Thus, this commentary is nothing more than the intellectual equivalent of clapping.

Are some signs more equal than others?

In Reed, the court unanimously struck down a sign ordinance that identified several different categories of outdoor signs based on the type of information conveyed and then treated some of those kinds of signs more favorably than others.

For example, “political” signs were allowed to be much larger and up for much longer than “ideological” signs, which in turn were allowed to be much larger and up for much longer than “temporary directional signs.” A Gilbert, Arizona, minister, Pastor Clyde Reed had brought the case when the town severely restricted his ability to put up “temporary directional signs” notifying people of where the Sunday services were going to be held.

The Reed Church signs behind the Supreme Court rulingAlliance Defending Freedom, CC BY-NC-SA

In the Court’s opinion this amounted to content-based regulation that could not survive strict scrutiny. That is, in order for the ordinance to pass free speech requirements the local government would have had to prove that the restrictions were put there in furtherance of a compelling government interest and were, in fact, narrowly tailored to achieve that interest.

No one would argue with the well-established precedent that content-based regulation of private speech requires strict scrutiny. The main takeaway from the court’s opinion is that:

A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.

In its decision, the Supreme Court addressed conflicting opinions from previous circuit court rulings and clarified the rule going forward.

It is now settled that if a law is content-based on its face – that is, if it treats some kinds of speech more favorably than other kinds of speech and restrains some kinds of expression (not because of a compelling, narrowly tailored state interest but because it considers some content more or less “valuable") – in short, if it regulates speech based on content, then it does not matter if said law is also viewpoint neutral, i.e., if the law restrains all such speech regardless of the position or message advocated therein. It does not matter why the government is regulating speech based on content; treating certain kinds of speech differently based on the topic or idea expressed is presumptively wrong no matter why you do it, unless of course the law can pass strict scrutiny.

By clearly distinguishing among signs based on what kind of information they were put there to convey, the Town of Gilbert violated the First Amendment.

As Justice Thomas wrote for the majority:

Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws – i.e., the “abridg[ement] of speech”—rather than merely the motives of those who enacted them.

In her concurrence, Justice Elena Kagan agreed that,

to do its intended work, of course, the category of content-based regulation triggering strict scrutiny must sweep more broadly than the actual harm; that category exists to create a buffer zone guaranteeing that the government cannot favor or disfavor certain viewpoints.

Unanimous decision but three written opinions

Could reasonable people disagree about just how far that buffer zone should extend?

Sure, that is why there was a three-way split among eight circuits in the first place; the Ninth Circuit, for instance, which originally heard this case, felt that the law in question here was content neutral because of the lack of hostility towards the underlying message. And that’s why despite the fact that all nine Supreme Court Justices concurred in the decision, they still issued three separate opinions with some nuanced debate about what to do in cases where “not even a hint of bias or censorship” was reasonably possible.

It would be hard, however, to argue that the Reed decision was in some way novel or out of line with First Amendment jurisprudence on the topic of governmental regulation of private speech. Agree or disagree with the outcome, it was nothing if not reasonable.

A different take on Texas

Like it or not, Walker v. Texas Division was just as reasonable, if somewhat more controversial.

In a 5-to-4 decision the Court upheld a ruling that denied the Texas Division of the Sons of Confederate Veterans the ability to create a specialty license plate displaying the Confederate flag. The Court ruled that the message on a license plate is government speech, not private speech,and followed the universally accepted proposition that, “When government [at any level] speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” The First Amendment just does not apply in the same way to government speech, and if people do not agree with the government’s decisions and the way they are expressed, they always have the democratic right to vote them out at the next election.

The fact that the government in Texas does not actually design each plate, but rather approves designs that private individuals submit, also does not change the underlying principle. It is equally clear from court precedent that “government speech” may include the government selecting which private speech it would like to endorse as its own. Here, Texas is free to say that it likes some license plate message, but not others.

A proposedTexas Department of Motor Vehicles/Handout via Reuters

In short, the law behind Walker v. Texas is also well-settled First Amendment doctrine. The entire case was simply a disagreement about how to weigh some very specific facts. Justice Stephen Breyer, writing for the majority, noted that license plates – which by their very nature are “government IDs” – have historically been used to convey messages from the states, and are still more than obviously identified in the public mind with each particular state. He wrote:

“The governmental nature of the plates is clear from their faces: The State places the name ‘TEXAS’ in large letters at the top of every plate. Moreover, the State requires Texas vehicle owners to display license plates, and every Texas license plate is issued by the State. …[I]ssuers of ID ‘typically do not permit’ the placement on their IDs of ‘message[s] with which they do not wish to be associated.’

Consequently, “persons who observe” designs on IDs routinely – and reasonably – interpret them as conveying some message on the [issuer’s] behalf. (Emphasis added.)

Why not assume ‘Rather be golfing’ is government policy

Justice Samuel Alito, writing for the dissent, disagreed. He proposed a test in which a person would sit by the side of the highway and read all of the specialty license plates on vehicles passing by.

As you sat there watching these plates speed by, would you 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?

If, Alito speculated, a car with a plate that says “Rather Be Golfing” passed by at 8:30 on a Monday morning, would you think: “This is the official policy of the state – better to golf than to work?”

The hypothetical is interesting, but it misses one crucial distinction.

No one is arguing that this would be construed as official state policy, and in fact that would not be a reasonable interpretation. It would, however, be reasonable to assume that Texas, as a state, was willing to make that relatively inoffensive humorous remark, and not another, more offensive, possibly racist, remark.

(It should be noted that Alito wrote his dissent before the slaying of nine churchgoers in Charlston, NC, by an alleged gunman who posed with the Confederate flag and before a very public outcry arose against displaying the Confederate flag on state property. This is not to say that every person who identifies with the Confederate flag does so for ignoble purposes. All it means is that some very openly and dangerously do, and it is not unreasonable for Texas to not want to associate with the flag at all as a matter of precaution.)

A question of endorsement not official policy

The issue here is not official policy, but endorsement, and the decision of the court is, once again, reasonable to the core. A reasonable person might perceive the license plate with Texas' name on it as the State giving its imprimatur, and the State chose not to put its stamp on this particular message.

While it is easy to compare the two speech cases and conclude that one case protected speech favored by the court (directions to a church) and one did not protect speech the court disfavors (politically divisive and emotionally charged displays), such an interpretation does not do justice to the nuances of Supreme Court jurisprudence.

From the cold hard perspective of the law, ironically, all the court really did was follow through on some well-settled rules of First Amendment jurisprudence, without, as it were, regard to the content of the messages in question.

Mark Aaron Goldfeder does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.