The Supreme Court released two important free speech decisions on Thursday, finding that the government can’t limit temporary signage based on its content but can control what goes on specialty license plates. The difference? Who was speaking.

The twin cases coming up from an Arizona sign restriction and a Texas DMV decision, emphasize the Court’s focus on not just the content of speech but on its speaker. The decisions taken together emphasize strictly protecting private speech while allowing greater regulation in government-sponsored speech.

Arizona Signage Rule

The town of Gilbert, Arizona, like many other towns, restricts where and when signs can be placed. Every sign in Gilbert needs a permit, except those that fall under certain exemptions, which allow unpermitted signage but with many restrictions. 

That’s a straight content-based restriction on speech, the Supreme Court decided in an opinion by Justice Thomas. It doesn’t matter that the case involved simply directional speech – and not, say, a treatise on government; it is still content-based and must withstand strict scrutiny. Of course, almost nothing survives strict scrutiny.

Texas License Plate

Speaking of your commute, it may soon be a bit harder to spot drivers nostalgic for the Confederacy. In its second First Amendment ruling, the Court upheld a Texas DMV decision rejecting a license plate design featuring a confederate flag. The state had rejected the design based on comments that the Confederate flag was offensive and hateful and shouldn’t be given the state’s seal of approval by slapping it on specialty license plates.

The Sons of Confederate Veterans who seek to “honor and keep alive” the “principles for which Confederates fought,” sued the state. They argued that Texas had violated their own freedom of speech by making a content-based rejection of its license plate design. Except it would not be the SCV speaking, the Supreme Court found, but the state. In an opinion by Justice Breyer, the Court found that specialty license plates were government speech, which the government can regulate as it wishes.

If you want a confederate flag on your car, buy a bumper sticker, Breyer said.

Related Resources:

  • Supreme Court Says Texas Can Reject Confederate Flag License Plates (The New York Times)
  • Court Looks for Limits in Confederate Flag License Plate Case (FindLaw’s U.S. Supreme Court Blog)
  • SCOTUS Sleeper: Speech Rights of Government Employees Returns (FindLaw’s U.S. Supreme Court Blog)
  • Irony Abounds: Free Speech Rights Curbed on Supreme Court Grounds (FindLaw’s U.S. Supreme Court Blog)

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