Should a state be required to display an Adopt-a-Highway sign for the KKK? In 2012, Georgia denied the KKK’s application to participate in the Adopt-a-Highway program, citing safety concerns—specifically, the 65 mph speed limit on the section of Highway 515 that the KKK wanted to adopt—and “significant public concern” caused by the organization’s “long-rooted history of civil disturbance.” Represented by the ACLU, the KKK filed a lawsuit, claiming that the state’s rejection of their Adopt-a-Highway application is a content-based restriction on the KKK’s freedom of speech—a right established by both the First Amendment to the U.S. Constitution and the Constitution of the State of Georgia.
But is it really their speech?
Background on “Content-Based Restriction”
How the Georgia court will answer that question may depend on recent developments in First Amendment law regarding government speech. Before discussing that, here’s a brief detour into some First Amendment basics.
When evaluating whether a government restriction of speech does or doesn’t violate the Constitution, courts especially frown upon content discrimination and viewpoint discrimination. If the government action abridges speech based on its content, it needs to have a good reason—a compelling interest—and the means must be narrowly tailored to serving that interest. This is called strict scrutiny. Courts frown upon viewpoint discrimination even more.
An example of content discrimination would be a local ordinance that permits all signs, except signs about presidential candidates. If the ordinance allowed signs about presidential candidates, but only signs that promoted Bernie Sanders, that would be viewpoint discrimination.
If you’d like to see an example of this concept in an actual case, R.A.V. v. St. Paul is a clear, readable example.
A recent Supreme Court case suggests that a state can make a content-based decision. Decided last June, Walker v. Texas Div., Sons of Confederate Veterans, Inc. emphasized that the First Amendment protects not only the public’s free speech, but also the government’s. The government is free to reject invitations to express certain content, if such expression could appear to be the government speaking. Otherwise, in Justice Breyer’s words:
[G]overnment would not work. How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?
Seems straightforward, right? The government can’t be expected to say, “Recycle! Don’t recycle!” “Get vaccinated for your own safety and for others; however, don’t let THE MAN dictate what you do with your own antibodies!” “Speed Limit: 25 mph 65 mph! It’s more fun! Carpe diem!!!!!!!”
Surely the First Amendment doesn’t require that.
Of course, restricting a speaker from saying, “Don’t recycle!” is a form of content and viewpoint discrimination. Walker shows us, however, that when the government is speaking, it may engage in viewpoint discrimination, just as you or I may.
How do you know if the government is actually speaking, not just providing a space for public speech?
Identifying the Speaker: A Summum-ary
Before Walker, there was Pleasant Grove City v. Summum. This 2009 decision upheld a city’s rejection of Summum‘s offer to donate a monument as a permanent display in a public park. The Court identified three factors to determine whether the speaker was Summum, a religious group and therefore a private entity, or if Summum sought to compel Pleasant Grove City, the government, to speak.
The following three factors contributed to the Court’s decision that the speech was the government’s, not Summum’s:
(1) the medium of speech is historically associated with the government;
(2) the public associates the space in which the speech occurs with the government;
(3) the government controls messages of that medium in that space.
While that analysis, particularly the third factor, might seem a little circular—“we select the message because we’ve always selected the message”—the underlying theme is public perception. If the government has historically, traditionally, or even just recently been able to select the message, the public is likely to think any message in that space and medium is a message from the government. Therefore, the government is allowed to exercise control and even discrimination in that space and medium.
Summum was about a statue on city land. Walker was about license plates affixed to private individuals’ personal cars. A majority of the Supreme Court held that license plate designs were government speech—historically associated with government, currently associated with the state, and, because the Texas Department of Motor Vehicles Board was already vested with the authority to approve or disapprove public design submissions, the government exercised selection authority. Therefore, the Department could reject a license plate design submitted by the Sons of Confederate Veterans without violating the organization’s First Amendment rights.
If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games . . . would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?
Some worry that Walker will enable the government to engage more easily in viewpoint discrimination by crafting an argument that frames a forum as “government speech.” The Walker dissent even uses the phrase “blatant viewpoint discrimination.”
Why should we care if unpopular groups face viewpoint discrimination? To quote Maya Dillard Smith, ACLU of Georgia’s Executive Director, “Today, it is the Ku Klux Klan, tomorrow it will be Black Lives Matter.”