The Supreme Court’s Vague Definition of Government Speech

By Lavi Ben Dor
Lavi Ben Dor is a junior at the University of Pennsylvania concentrating in finance and marketing.

The First Amendment to the Constitution clearly lays out the United States governmental commitment to unrestricted speech: “Congress shall make no law…abridging the freedom of speech.” [1] As a result, the government faces significant limits in attempting to restrict the speech of private citizens. But what happens when it is the government itself that is speaking?

The idea of government speech recently faced scrutiny in the Supreme Court case Matal v. Tam. [2] The Court addressed a trademark application made by Simon Tam for the name of his band, “The Slants,” which had been denied by the U.S. Patent and Trademark Office (PTO). The PTO rejected the request under the Lanham Act, which includes a provision banning trademarks that “disparage . . . or bring . . . into contemp[t] or disrepute” any people, arguing that the term “slant” has a history of being used as a slur against Asian Americans. [2, 3]

In litigating this case, the prosecution claimed that trademarks constitute the speech of the federal government rather than the applicant, and therefore that trademarks are not under the purview of the First Amendment. Although the Court rejects this argument, saying that “[t]he Federal Government does not dream up these marks, and it does not edit marks submitted for registration,” it is a very significant one. [2]

Under the Supreme Court’s rulings, the government cannot restrict private speech in favor of one opinion or viewpoint over others—that is, it must exercise viewpoint neutrality. [4] But it would be odd to expect the government to act in the same way toward its own speech. If a particular administration had to devote equal energy to arguing both for and against legislation,  it would likely accomplish few policy goals. Thus, if individual speech constitutes that of the government, the Court maintains the government’s right to regulate; but if individual speech is ruled private, the government cannot enact inequitable regulation.

The Supreme Court ultimately ruled in favor of the Slants in Matal v. Tam, finding that trademarks constitute private and not government speech. Other related rulings; however, have not proven so favorable to advocates of free speech

In Walker v. Texas Division, Sons of Confederate Veterans, the Court allowed the Texas Department of Motor Vehicles to refuse to issue a specialty license plate for the Sons of Confederate Veterans that featured a Confederate flag. [5] The majority’s rationale was that license plates are government speech, arguing that states have used such plates to promote its agendas (such as encouraging tourism) and that the placement of the state’s name on the license plates and their mandatory status makes them “essentially, government IDs.” Thus, it does not have to exercise viewpoint neutrality and may ban specialty plates.

Similarly, the Court found in Pleasant Grove City v. Summum that the government may refuse to install a monument in a public park because “[w]hen a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.” [6] Thus, those statutes fall under the purview of the government’s speech, and their display is left to government discretion.

The discrepancy between these cases and Matal v. Tam highlights the lack of a consistent standard of government speech—public parks and specialty license plates are speech by the government, yet government-issued trademarks are expressions by individuals. The Court is firm on what the government can and cannot do in either scenario, but it seems to follow a rather case-by-case approach in distinguishing between the two.

These cases demonstrate  the muddiness of  this area of law. On the one hand, the Supreme Court argues that the government is uninvolved in the creation of trademarks, but on the other, no phrase or design can claim the ™ symbol without the approval of the government—in the same way that no driver can have a license without state permission. In addition, while states do issue and affix their names to license plates, it seems a stretch that states align themselves with  every specialty plate they issue, as the Supreme Court suggests. As Samuel Justice Alito highlights in an appendix to his dissent in Walker, does the state of Texas really endorse Dr. Pepper, RE/MAX, the YMCA, Brigham Young University and the University of Notre Dame? [5]

Taking the Court’s logic to an extreme, it is possible to imagine many negative outcomes: “Does this mean that the government can put any message it wants on license plates and require that people have that on their cars? ... Could a city library choose to have only books by Republican authors by saying that it is the government speaking? Could a city allow a pro-war demonstration in a city park while denying access to an antiwar demonstration simply by adopting the former as its government speech?” [7] Although these situations seem unlikely, recent Supreme Court rulings are ambiguous, leaving open the possibility of them becoming a reality.

The Court should address this dilemma the next time it takes on a government speech case, so that the question of private versus government speech may be resolved and future conflicts may be evaluated under one consistent principle.

[1] U.S. Const. Amend. I.
[2] Matal v. Tam, 582 U.S. ___ (2017).
[3] Chappell, Bill. “The Slants Win Supreme Court Battle Over Band's Name In Trademark Dispute.” NPR, June 19, 2017. http://www.npr.org/sections/thetwo-way/2017/06/19/533514196/the-slants-win-supreme-court-battle-over-bands-name-in-trademark-dispute
[4] Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 394 (1993).
[5] Walker v. Texas Division, Sons of Confederate Veterans, 576 U.S. ___ (2015).
[6] Pleasant Grove City v. Summum, 555 U.S. 460 (2009).
[7] Chemerinsky, Erwin. “The Troubling Government Speech Doctrine.” ACSBlog, June 19, 2015. https://www.acslaw.org/acsblog/the-troubling-government-speech-doctrine
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