First Amendment Law Takes a Hit

     Supreme Court justices often emphasize that the court’s role is not simply to decide cases and correct errors in lower courts, but to rule on knotty legal issues and lay down rules that get the law right for future cases. But in two closely argued free-speech cases during the past term the court seems to some observers to have gotten the law quite wrong even while reaching what may well be the right results in both.

      In the first of the cases, Walker v. Sons of Confederate Veterans, the court decided that Texas’s Department of Motor Vehicles could refuse to allow the Sons of the Confederate Veterans from displaying the Confederate battle flag on customized license plates. The Fifth U.S. Circuit Court of Appeals had ruled the agency’s action a free-speech violation.

      In the second case, Reed v. Town of Gilbert, the court struck down an ordinance adopted by a Phoenix suburb that allowed ideological and political signs to be larger and to stay up longer than other kinds of signs. The Ninth U.S. Circuit Court of Appeals found no First Amendment violation.

      The justices divided 5-4 in the Confederate battle flag case, with Justice Stephen G. Breyer writing for a majority that included the three other liberals and, somewhat surprisingly, the conservative Justice Clarence Thomas. The vote to strike down the Gilbert sign ordinance was unanimous, but three liberal justices declined to join Thomas’s opinion for the court.

      By my lights, the court would get good grades in both cases if its only job were to correct errors from lower courts. The Fifth Circuit gave too little regard to Texas’s interest in preventing the use of government-issued license plates to display a symbol regarded by many in the state as racially offensive. On the other hand, the Ninth Circuit was too deferential toward Gilbert’s interest in limiting visual clutter on its roadways.

      In both cases, however, the court laid down inflexible rules that may come back to haunt in future free-speech disputes. In Walker, Breyer reasoned that automobile license plates are in essence government speech free of any First Amendment controls. By contrast, Thomas’s opinion in Reed imposes the highest constitutional test, “strict scrutiny,” on any law regulating speech based on its content.

      In separate opinions, justices in the minority sounded alarms. In the license plate case, Justice Samuel A. Alito Jr. wrote on behalf of the four conservative dissenters that the decision “establishes a precedent that threatens private speech that government finds displeasing.” In the sign case, Justice Elena Kagan warned on behalf of three justices concurring in the judgment that the decision could result in invalidating “thousands” of “reasonable ordinances.”

      In fact, Reed has already spread beyond the specific context of sign ordinances, as the New York Times’s Supreme Court correspondent Adam Liptak noted in an article last month [Aug. 18]. The Seventh U.S. Circuit Court of Appeals cited the newly established strict scrutinystandard for any content-based regulation in striking down a local ordinance against panhandling (Norton v. City of Springfield, Aug. 7).

      Before Reed, the court had upheld the ordinance because it  regulated speech based on the subject matter, not the content or viewpoint. But ruling on a petition for rehearing, Judge Frank Easterbrook Jr. said the Supreme Court’s broader definition of “content-based” required a different result. “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification,” Easterbrook wrote.

      In another post-Reed decision, the Fourth U.S. Circuit Court of Appeals struck down a South Carolina law that barred robocalls on political but not on other topics. And a federal district court judge cited Reed in striking down a New Hampshie law that sought to protect ballot secrecy by banning election selfies.

      As Liptak noted, Reed could conceivably be extended to such content-based laws as drug labeling, securities regulation, and consumer protection. Liptak quoted Robert Post, a First Amendment expert and dean of Yale Law School, as warning that the decision “would roll consumer protection back to the 19th century.”

      A federal court in Virginia cited Walker in a ruling in late July to allow the state to recall specialty license plates carrying the Confederate battle flag. But the decision had spread to a somewhat different context even earlier. In an action at the end of the term in late June, the justices told the Fourth Circuit to reconsider a decision that North Carolina was violating the First Amendment by allowing specialty license plates for anti-abortion organizations but not pro-choice groups.

      In his story reporting the action, Slate’s Mark Joseph Stern recalled his earlier warning that Walker “was not a victory for civility or tolerance” but “an invitation for the suppression of expression.”

      Ironically, Breyer’s opinion establishing a bright-line test for license plates or other government speech is at odds with the distaste he voiced for categorical definitions in his separate opinion in the sign ordinance case. Breyer has been a flexible First Amendment pragmatist throughout his tenure. And, in his forthcoming book The Court and the World, Breyer writes favorably of European court rulings that apply a “proportionality” test in evaluating free-speech challenges.

      Bright-line tests have their place, but the court’s decisions in these cases give courts too much power to strike down valid speech regulations and give politically motivated governments too much power to censor pure speech. First Amendment law took a hit in both.