The question of government speech rights has a problematic history for reproductive rights advocates, and Thursday’s ruling in Walker v. Texas Sons of Confederate Veterans is no different.
The Supreme Court’s first attempts at defining the scope of government speech came in Rust v. Sullivan, the case that in 1991 upheld abortion-related restrictions on Title X family planning funds. At issue in Rust was whether or not regulations that prohibited Title X family planning dollars from being used for abortion services or referrals violated the First Amendment by preventing certain content-based conversations, in this case related to abortion care, from occurring. The Supreme Court ruled the prohibitions didn’t violate the First Amendment because when the government chooses to speak, it can, like private citizens, pick and choose the speech it makes, and one way the government choses to “speak” is by allocating funding.
While Rust did not set forth an entire picture of what government speech is and all the various ways the government can “speak,” whether it be through funding or even direct messages, lower courts have interpreted Rust to mean that when the government chooses to speak it has nearly as much First Amendment protection as private individuals. That is because the government can more or less pick and choose which of its own messages to broadcast and which to suppress.
But it is not always clear when it’s only the government speaking, or when it is some combination of government and private voices, which means the law around what constitutes government speech versus private speech is a mess. Federal appellate courts have been all over the place on this issue: In the leadup to Walker, only the Sixth Circuit has ruled specialty plates constitute government speech. Other circuits have ruled the speech is private, or some kind of hybrid between government speech and private speech. The Supreme Court took up the case this term presumably to settle the question.
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Every state has some form of a specialty license plate program like the one at the center of the case in Texas. There, the state’s vanity license plate program offers car owners a choice between ordinary and specialty license plates, which include messages approved by the legislature such as “Choose Life.” If people do not see their particular cause or message represented in the current selections, they can design their own vanity plates by proposing a design that the Texas Department of Motor Vehicles Board must approve. If the Texas Department of Motor Vehicles Board approves the design, which may include a slogan, a graphic, or usually some combination of both, the state will make it available for anyone to purchase.
In 2011 the Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a Confederate battle flag to honor, they claimed, the fallen soldiers of the Confederacy. The board rejected their proposal, saying “a significant portion of the public associates the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.” The Sons of Confederate Veterans sued, arguing the refusal to approve their proposed plates violated their free speech rights. A panel of judges from the Fifth Circuit Court of Appeals agreed with the Sons of Confederate Veterans in 2014 and held Texas could not reject the proposal.
On Thursday the Supreme Court reversed, holding 5 to 4 that states can limit the content of specialty license plates without running afoul of the First Amendment. This means that Texas can rightfully reject the Confederate plates.
Justice Stephen Breyer, writing for the majority, rejected the Sons of Confederate Veteran’s argument that specialty plates are private speech, ruling instead that they are government speech. “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says,” Justice Breyer wrote. “Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate.”
“[J]ust as Texas cannot require SCV [Sons of Confederate Veterans] to convey the State’s ideological message, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates,” wrote Breyer.
Let me be the first to say I am so very glad there will be fewer public displays of the Confederate flag thanks to this opinion. The flag is a symbol of tyranny and racial hatred that this country has yet to reckon with, and its supporters should not be given any more of a platform than the hundreds of years of white supremacy they already enjoy. Not to mention, the decision came down in the backdrop of the critically important Black Lives Matter movement and the morning following the racial hate crime in Charleston, South Carolina, a state that still flies the Confederate flag at its statehouse. So I’ll admit to more than a little bit of schadenfreude at the racists’ loss here and the chance to diminish a platform of hate that this country has tolerated since its inception.
But I also know that historically, government speech has gone against progressive causes and values, like it did in Rust, which made today’s decision in Walker possible. And I know the scope of Thursday’s decision is likely not limited to banning Confederate flag vanity plates. In 2011, North Carolina lawmakers approved “Choose Life” license plates as one of 80 specialty plates to be offered in the state, but rejected proposals for plates with messages such as “Respect Choice” and “Trust Women.” Each “Choose Life” plate was to cost $25, with $15 of the proceeds from each plate going to the Carolina Pregnancy Care Fellowship, an association of anti-choice crisis pregnancy centers. Both the federal district and Fourth Circuit Court of Appeals ruled the plates unconstitutional. According to the Fourth Circuit, North Carolina’s decision not to offer a license plate with an alternative message to the “Choose Life” plates constituted “blatant viewpoint discrimination squarely at odds with the First Amendment.” Attorneys from the anti-choice Alliance Defending Freedom asked the Supreme Court to review that decision, and the Roberts Court sat on that request while it heard and decided Walker.
Chris Brook, legal director for the American Civil Liberties Union of North Carolina, whose organization is involved in the “Choose Life” litigation currently sitting before the Roberts Court and filed an amicus brief in the Walker case, explained in an interview with Rewire that despite the fact that the decision was issued by the liberal wing of the Court, it is the kind of decision that causes real problems for progressives.
“The decision is a real step backwards for the First Amendment,” said Brook. “If the First Amendment means anything it means private individuals get to engage in unpopular, and oftentimes hurtful, speech. The First Amendment doesn’t mean very much if it only protects popular speech that isn’t very controversial.”
For reproductive rights advocates, the reality is that in many conservative legislatures, pro-choice and pro-abortion rights speech is considered unpopular.
If the State of Texas can ban vanity license plates with depictions of the Confederate flag under the Court’s logic today—that license plates are government speech—it should also be able to offer “Choose Life” license plates that directly fund crisis pregnancy centers too, with no requirement to offer a pro-choice alternative. And given the number of state legislatures that are openly hostile to abortion rights, this is not just a messaging problem for reproductive rights advocates. It’s also a fiscal one. The reason states have vanity plate programs is because the programs make the states money. The reason anti-abortion advocates love “Choose Life” funding streams is because they siphon public funds to specifically anti-choice organizations—funding streams prohibited by law from going to organizations that provide abortion care.
This is the legacy of Rust, the economics of abortion politics where states can simultaneously fund crisis pregnancy centers while starving reproductive rights clinics of funding, forcing more patients to turn to a nonprofit system of grassroots abortion funds. And this is the reason why despite the fact that Thursday’s opinion narrowed the platform available for racists to spew their hate, it’s not a decision we should necessarily embrace.