Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs

The Roundtable


Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.


Does the Government Have a Right to Free Speech?

11/11/2015

0 Comments

 
Picture
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.
0 Comments

Your comment will be posted after it is approved.


Leave a Reply.


    Categories

    All
    Aaron Tsui
    Akshita Tiwary
    Alana Bess
    Alana Mattei
    Albert Manfredi
    Alexander Saeedy
    Alexandra Aaron
    Alexandra Kanan
    Alexandra Kerrigan
    Alice Giannini
    Alicia Augustin
    Alicia Kysar
    Ally Kalishman
    Ally Margolis
    Alya Abbassian
    Amanda Damayanti
    Anika Prakash
    Anna Schwartz
    Arshiya Pant
    Ashley Kim
    Astha Pandey
    Audrey Pan
    Benjamin Ng'aru
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Catherine Tang
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Clarissa Alvarez
    Cole Borlee
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    David Katz
    Davis Berlind
    Derek Willie
    Dhilan Lavu
    Edgar Palomino
    Edna Simbi
    Ella Jewell
    Ella Sohn
    Emma Davies
    Esther Lee
    Evelyn Bond
    Filzah Belal
    Frank Geng
    Gabrielle Cohen
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Habib Olapade
    Hailie Goldsmith
    Haley Son
    Hannah Steinberg
    Harshit Rai
    Hennessis Umacta
    Henry Lininger
    Hetal Doshi
    Ingrid Holmquist
    Iris Zhang
    Irtaza Ali
    Isabela Baghdady
    Ishita Chakrabarty
    Jack Burgess
    Jessica "Lulu" Lipman
    Joe Anderson
    Jonathan Lahdo
    Jonathan Stahl
    Joseph Squillaro
    Justin Yang
    Kaitlyn Rentala
    Kanishka Bhukya
    Katie Kaufman
    Kelly Liang
    Keshav Sharma
    Ketaki Gujar
    Khlood Awan
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Lyan Casamalhuapa
    Lyndsey Reeve
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Margaret Lu
    Matthew Caulfield
    Michael Keshmiri
    Michael Merolla
    Mina Nur Basmaci
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nathan Liu
    Nayeon Kim
    Nicholas Parsons
    Nicholas Williams
    Nicole Greenstein
    Nicole Patel
    Nihal Sahu
    Omar Khoury
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Paula Vekker
    Pheby Liu
    Pragat Patel
    Rachel Bina
    Rachel Gu
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Sajan Srivastava
    Samantha Graines
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Saranya Das Sharma
    Saranya Sharma
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Serena Camici
    Shahana Banerjee
    Shannon Alvino
    Shiven Sharma
    Siddarth Sethi
    Sneha Parthasarathy
    Sneha Sharma
    Sophie Lovering
    Steven Jacobson
    Suaida Firoze
    Suprateek Neogi
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Thomas Cribbins
    Todd Costa
    Tyler Larkworthy
    Tyler Ringhofer
    Vatsal Patel
    Vikram Balasubramanian
    Vishwajeet Deshmukh
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    April 2025
    March 2025
    February 2025
    January 2025
    December 2024
    November 2024
    September 2024
    May 2024
    April 2024
    January 2024
    December 2023
    November 2023
    May 2023
    March 2023
    January 2023
    December 2022
    November 2022
    September 2022
    June 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    May 2019
    April 2019
    March 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Powered by Create your own unique website with customizable templates.