Does the Government Have a Right to Free Speech?

By Sanjay Dureseti

Sanjay Dureseti is a freshman at the University of Pennsylvania and an associate editor of the Penn Undergraduate Law Journal.

On October 26, the University of Mississippi lowered the state flag, which includes f the notorious Confederate “Stars and Bars” insignia, from a visible spot on campus. This followed a heated debate amongst the members of the student body, reflecting a larger dialogue that has gripped much of the South.

The use of the Confederate flag is a thorny issue, one rooted in centuries-old racial and cultural strife. For a large portion of Americans, the flag epitomizes slavery, segregation, and is a painful and unnecessary reminder of a dark chapter in national history. For many others still, the flag is a point of pride and a patriotic symbol of Southern unity. While it is clear that the question of the Confederate image provokes unambiguous emotional reactions, the legal implications of its use are not so obvious.

Earlier this year, a case developed in Texas involving a Confederate heritage group suing the state for refusing to issue specialty license plates that contained the Confederate flag. An appeals court in the Fifth Circuit reversed an earlier decision, citing that any refusal to issue these plates represented an infringement of private speech and the First Amendment. The Supreme Court, however, ruled 5-4 in favor of the initial ruling. The license plates were to remain banned.

The Court’s majority based its opinion on two central arguments. The first established that restricting license plates and their content is a form of government speech. Governmental actions do not fall under the jurisdiction of the First Amendment unless they deliberately force private citizens to express government speech. [1] The Court also determined that given the use of license plates to promote slogans and the state’s direct control over their issuance, specialty plates are akin to the message-based “monuments” found in public parks.  Legal precedent dictates that governments are permitted to craft such “monuments” without restriction as long as they are not explicitly discriminatory or vulgar. [2]

In ruling on the side of Texas, the Court did little to clarify the legal status of the First Amendment. In fact, it further muddied the waters. The decision introduced the notion of “government speech,” resulting in a unique endorsement of governmental rights and an expansion of institutional oversight. In enshrining the right of the government to speak for itself, the Court granted governments the ability to craft, broadcast, and promote any message that they wish.

Simultaneously, however, the Court upheld seemingly contradictory rulings that limit the ability of governments to require the promotion of ideological messages. [3] These cases relied on arguments of free speech, as the Court opined that government enforcement of the use of slogans, icons, and signs could not trump the ideological independence guaranteed to every citizen by the First Amendment.

Such legal inconsistencies raise fundamental concerns about the nature of free speech. As the United States operates in a state of ever-increasing polarization and as battle lines are so definitively drawn, the question of the First Amendment presents a rare gray area. When are the bounds of speech overstepped? When can governments intervene? How far does our freedom extend? Solving such quandaries would resolve countless disputes within the national legal system.

Unfortunately, no one seems to have the answers.


[1] 576 U. S. 14 (2015)         
[2] Lyle Denniston, Opinion analysis: The message determines the right, SCOTUSblog (Jun. 18, 2015, 1:40 PM), http://www.scotusblog.com/2015/06/opinion-analysis-the-message-determines-the-right/
[3] 430 US 705 (1977)

Photo Credit: Peter Griffin
​
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.