The Supreme Court established that motor vehicle license plates are not a public forum for free speech. In Walker v. Texas Division of Sons of Confederate Veterans, the Supreme Court’s majority opinion, released Thursday, says that license plates are government property and the government can dictate what messages are conveyed on that property.
This case presents an interesting answer to the question of a venue in which the government’s right to control government property intersects with the public’s First Amendment right to free speech. Further, it answers that the government has the right not to endorse a message that might be offensive or contrary to the government’s interest.
Here, in the muddled world of vanity or special license plates, a group of descendants of Civil War veterans wanted to design a specialty license plate in Texas featuring the Confederate flag, a controversial, divisive and offensive symbol to many.
The Texas Department of Motor Vehicles, which issues more than 300 specialty plates representing colleges, universities, parks, sports teams and hobbies, rejected the Confederate flag plate and a lawsuit ensued. Specialty plates cost about $30 and roughly $22 goes to the charity or interest group associated with the plate. Many states offer such opportunities.
A federal district court ruled in favor of the DMV but the Court of Appeals for the Fifth Circuit reversed. The Supreme Court heard the case in March and overruled the appellate court.
Justice Stephen Breyer, writing for the 5-4 majority, wrote that because license plates are government property, the equivalent of an identification tag, the government can dictate what message goes on that property.
“When the government speaks, it is not barred by the Free Speech Clause from determining what it says,” Breyer wrote. Later in the opinion, he wrote “when the government speaks it is entitled to promote a program to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.”
The court primarily relied on a 2009 case, Pleasant Grove City v. Summum, which empowered a government agency to block a religious group from erecting a monument in a city park.
License plates are not public fora and thus not a venue for public speech, Breyer wrote.
Breyer succinctly and masterfully encourages that if citizens want to express themselves or enter the marketplace of ideas with vehicle tags, they should simply apply a bumper sticker. “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,” Breyer wrote.
Justice Samuel Alito’s dissent, however, also makes an interesting point that the Texas DMV allowed hundreds of specialty license plates that conveyed a variety of messages, including content such as “Rather Be Golfing.” Giving the government discretion over what messages can make it onto license plates, he wrote offends the First Amendment. The DMV is regulating First Amendment-related content, even if it says it is not, Alito said.
Even as the case was pending before the Supreme Court, the federal appellate court in New York, the Court of Appeals for the Second Circuit, in May, issued an opinion in a similar license plate regulation case. Though the Second Circuit found that there was no First Amendment violation by New York’s custom plate regulations, it found vanity plates to be private speech on a non-public forum.
There are nuances to both opinions, but the Supreme Court precedent is the law of the land, and perhaps, a reasonable conclusion. Thus, license plates as government property does make sense.
The practical outcome of all this litigation is this: we can probably expect to see more bumper stickers on cars.
Roy S. Gutterman is an associate professor of communications law and journalism and director of the Tully Center for Free Speech at Syracuse University.
April 8, 2015, 4:00 pm
DINEEN HALL, SONKIN SEMINAR ROOM 342
Presented by The Institute for the Study of the Judiciary, Politics, and the Media
Featuring Sean Kirst, Columnist for the Post-Standard
April 1, 2015, 7:00pm to 9:00pm
JOYCE HERGENHAN AUDITORIUM, NEWHOUSE 3
Presented by Tully Center for Free Speech
Over the past several years, the American media have sharply increased their coverage of scandals that have been brought to light by whistleblowers, including NSA spying, banking fraud, contaminated food and nuclear safety risks. The stakes for the public—and to the whistleblowers and investigative journalists who disclose wrongdoing and corruption—have never been higher.
Please join us for the second lecture this semester for the Law, Politics and the Media Speaker Series.
William J. Fitzpatrick
District Attorney, Onondaga County
Wednesday, February 18, 4:00 p.m.
Syracuse University College of Law
Dineen Hall, Sonkin Seminar Room 342
Mr. Fitzpatrick has served as Onondaga County District Attorney since 1992, and has been a member of the Onondaga County District Attorney’s office for more than 30 years, with involvement in a variety of cases that have covered every facet of the law. Mr. Fitzpatrick’s work has gained national notoriety, including the 1992 conviction of Waneta Hoyt, which led to increasing awareness in the medical and legal communities about infant homicide and SIDS prevention, and recently, the conviction of “Black Widow” killer Stacy Castor.
Mr. Fitzpatrick’s lecture is sponsored by the interdisciplinary Institute for the Study of the Judiciary, Politics and the Media, and the Tully Center for Free Speech.
Please join us for the first lecture this semester the Law, Politics and the Media Speaker Series.
Paul M. Smith
Partner, Jenner & Block
Wednesday, January 28, 4:00 p.m.
Syracuse University College of Law
Dineen Hall, Sonkin Seminar Room 342
Mr. Smith has had an active Supreme Court practice for three decades, including oral arguments in 15 cases involving matters ranging from free speech and civil rights to civil procedure. Among his important victories have been Lawrence v. Texas, the landmark gay rights case, and Brown v. Entertainment Merchants Ass’n, establishing the First Amendment rights of those who produce and sell video games. Mr. Smith is Chair of the Appellate and Supreme Court Practice and Co-Chair of the Media and First Amendment, and Election Law and Redistricting Practices at Jenner & Block.
Mr. Smith’s lecture is sponsored by the interdisciplinary Institute for the Study of the Judiciary, Politics and the Media; the Tully Center for Free Speech; and the Kissel Fund for Civil Liberties.
The Year in Free Speech: 2014
By Roy S. Gutterman
Free speech issues became part of both the national and international dialogue in 2014. From the Michael Brown shooting protests in Ferguson, Missouri, to crackdowns on journalists covering those protests to the murder and imprisonment of journalists around the world, many of the issues usually isolated to those expressing their rights came to the forefront of the general public.
As the nation began examining police practices around the country, it was journalists fueling the story and citizens taking to the streets in protest. In Ferguson, it did not take long before authorities turned on journalists, harassing some, detaining others and chilling the coverage. The press’s vital role in telling the stories’ multiple sides almost got muted.
The year ended with two high-profile cases – the Sony hacking scandal and the Rolling Stone University of Virginia story – which further tested the boundaries of both free speech, the press, free flow of information and the law.
While the full story behind the Rolling Stone story is still unfolding, the case became another example of the value of an independent press as well as the shortfalls.
The Sony hacking scandal began as a computer hacking incident and turned into an international debate on censorship after Sony pulled the controversial film The Interview from theaters.
Sony seemed to have been chilled into self-censorship by some unspecified, vague threats of violence and reprisals for the movie. Sony later changed courses and released the movie in 331 theaters (instead of the 2,000 or 3,000 it initially planned). Sony also made the movie available through a number of online venues, possibly changing the way movies will be distributed in the future. The internet may have both burned and saved Sony. But who could have imagined that Seth Rogen and James Franco would ever become martyrs in a fight over censorship?
There may be some more fallout from the Sony scandal, though, because the company’s lawyer, David Boies, who purports to be a supporter of free speech and free press values, has threatened legal action against media entities who publish materials supplied by the hackers.
Meanwhile, the media continues to publish materials they should not have thanks to former NSA contractor Edward Snowden’s leaks. Snowden continues to raise questions about government power and the rights of whistleblowers.
And, New York Times reporter James Risen sits on a precipice with his appeals exhausted and the Department of Justice seeking the identity of his confidential sources. The Attorney General has said that he will not seek to imprison Risen, a journalist who was doing his job. But Risen is still waiting to learn his fate.
Free speech is intricately intertwined with free press rights, and under American law, in our First Amendment. Perhaps nobody has exhibited these free press and free speech rights more than journalists covering issues that others do not want covered, specifically in the Middle East and other war zones. As we embark on the New Year, journalists remain in jails around the world, particularly in Egypt and Iran, imprisoned for no other reason than committing journalism.
Even more starkly, this year will be remembered for James Foley and Stephen Sotloff, two journalists who were brutally murdered at the hands of militants in Syria. They were killed because they were American journalists. They wanted to tell the world stories that the world needed to know. And they were killed for it.
The Committee to Protect Journalists reported 60 journalists were killed around the world and more than 200 were imprisoned in 2014. These stark and dark statistics will haunt 2014, and possibly 2015.
Roy S. Gutterman is an associate professor and director of The Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.
The Moscow Readings Conference drew scholars from all over the world – China, Hungary, Germany, Finland, Belgium, Austria and Australia. I was one of two American professors at the conference at Lomonosov Moscow State University, one of Russia’s biggest universities and perhaps the most prestigious journalism school in the country.
The university, founded in 1755, has hosted this conference for the past six years, drawing scholars and speakers from around the world to discuss cutting-edge media issues. The journalism school, housed in the former mansion of an 18-century scientist, sits across the street from Red Square and the Kremlin.
It was quite a juxtaposition to give lectures on the impact of modern intellectual property law on free speech as well as media independence and other free speech values in a place where these issues are still being developed and are frequently challenged.
Additionally, discussions about media these days percolate in the shadow of Edward Snowden, the NSA whistleblower who is living in exile in Russia. Snowden was a major figure on Russian television especially the two English-language channels available on my hotel cable television.
Snowden was also a frequent source of questions from fellow academics at the conference. In some circles, Snowden is regarded as a criminal and enemy of the U.S. government, because of his leaks of classified documents. Because of this standing, he has gained a degree of support and admiration from others around the world, especially some of the scholars at the conference. His impact on an international discussion of government power, surveillance, whistleblowing, journalism sourcing and other issues, however, cannot be questioned.
In addition to presenting a paper and serving as a respondent to a slate of other papers, I spoke to two classes at the university. Presenting lectures on American free press values and intellectual property law to international audiences is nothing new for me. The questions from students were somewhat predicable and probing. Snowden, too, came up in these sessions. And so did skepticism about the independence of American media. These private businesses, owned by corporations, often publicly-traded for-profit corporations, and media conglomerates or individual modern press barons raised eyebrows for some students who are still unaccustomed to independent media.
Others openly refused to accept that the U.S. government does not control editorial or television content or own its own publications or television stations. One student was adamant that American government websites were the equivalent of modern media.
This was a point that I must admit took me by surprise and presented another difficult explanation. It also raised an interesting point that I had not entirely considered before. I always considered government websites as sources of general information more akin to a telephone book or directory or something utilitarian. Perhaps, I take government websites for granted and do not pay them enough consideration. Then again, how often does anyone pay much attention to a telephone directory? When was the last time anyone actually used a telephone book?
Even if a government website is a form of propaganda, I tried to explain, the independent media can use the content, check the content and question the content. Still, a handful of students remained convinced that government websites were media akin to newspapers, magazines, television stations or independent websites.
To the students questioning me in Russia, government websites present information, editorial content and ostensibly propaganda. The distinction between media and a government website to the questioners was indistinguishable, which opened up my eyes to a different way of thinking. My eyes are more open thanks to some students in Russia.
Roy S. Gutterman is an associate professor of communications law and journalism and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.