Are There Limits to Government Speech?

The Supreme Court considers whether putting a Confederate battle flag on a license plate should be different than urging Americans to eat more beef.

We the people love beef. Don’t believe me? Listen to the late Robert Mitchum, or whiskey-voiced cowboy star Sam Elliott: “Beef. It’s what’s for dinner.”

Did you see Uncle Sam’s lips moving? The “what’s for dinner” campaign was the creation of an obscure federal panel called the Cattlemen’s Beef Promotion and Research Board, which uses a $1-per-head tax on beef cattle to encourage Americans to eat lots of cow products.

The spirit of the Beef Board hovered over the Supreme Court last week as the justices considered the Texas license-plate case, Walker v. Texas Division, Sons of Confederate Veterans.

Many people see Walker as a case about the Confederate Battle Flag; but Walker has little to do with the flag, and much to do with a recent invention of the Court, the doctrine of “government speech.”

It’s worth understanding that idea for two reasons. First, whatever the Court decides, we are going to hear more, perhaps a great deal more, about government speech again soon. And, second, the Court’s venture into this area seems to follow a long-established pattern of First Amendment growth. At first, the Court announces that a certain kind of speech—defamation, say, or obscenity—is outside the First Amendment; next, government bodies begin restricting that kind of speech; finally, the Court narrows the exception to Free Speech to manageable size.

Government speaks to the people all the time: E pluribus unum; No Smoking; Only You Can Prevent Forest Fires. No one has ever seriously suggested that, having posted a sign or sponsored an ad, the government has to also sponsor the opposing view—What the hell? Go Ahead and Smoke Here; or Forest Fires are Fun for the Whole Family.

But that said, there’s something odd about the idea of the government as “speaker” like any other speaker in the marketplace of ideas. Government is Hobbes’s Leviathan with the biggest bullhorn in the world; can it be true that citizens have no more right to intervene in government speech than the government has in theirs?

The idea of government as a speaker with a viewpoint first came into focus in a 1991 case called Rust v. Sullivan. That case concerned a federal program, Title X, which funds family-planning and reproductive health services. Title X clinics have never performed abortions. The authorizing statute, passed in 1970, does not fund programs where “abortion is a method of family planning,” but the original regulations allowed program doctors to tell patients when health conditions made abortion a prudent choice, and to refer them to clinics that offered it.

In 1988, however, the Reagan Administration announced what came to be called the “gag rule.” Under the new rule, Title X-funded providers could not recommend abortion, discuss it as an option, or refer patients to doctors who performed abortions. If a patient inquired, the provider was limited to saying, “this program does not consider abortion a method of family planning”—even if the patient had an underlying health problem that made abortion medically advisable.

The Court, 5-4, brushed aside a free-speech challenge by a group of providers and patients. Chief Justice William Rehnquist wrote:

To hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals because the program, in advancing those goals, necessarily discourages alternate goals would render numerous government programs constitutionally suspect. When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as Communism and Fascism.

Two days after his inauguration, President Bill Clinton rescinded the Title X “gag rule.” But the idea of government as a player in the marketplace of ideas had begun to take on solid form.

Enter the Beef Board. Some ranchers challenged the check-off as a violation of their First Amendment right not to speak. The Court’s precedents seemed to support them—just four years earlier, it had struck down a similar program to promote mushroom sales. But in 2005, Justice Scalia, supported by five justices, belittled the challengers’ qualms. “Compelled support of government, even those programs of government one does not approve, is of course perfectly constitutional, as every taxpayer must attest,” Scalia wrote. Because the beef program was designed and run by the government, the First Amendment did not even apply. “[C]ompelled funding of government speech does not alone raise First Amendment concerns.”

The Beef Board rule was, as scholar Robert Post later wrote, “a blunt ipse dixit,” which is lawyer talk for “do it because I’m the daddy.” The lack of a real explanation left the “government speech” doctrine dangerously adrift, like a loose barge on a swollen river.

The doctrine next appeared in 2009 in a dispute over monuments in Pioneer Park in the metropolis of Pleasant Grove, Utah. Pleasant Grove allowed the Benevolent and Protective Order of Eagles to erect a large stone monument to the Ten Commandments. In 2003, a New Age religion, Summum, requested permission to erect a similar monument to the Seven Summum Principles (here’s one of the less obscure ones: “As above, so below; as below, so above”), which its members believe were on the original stone tablets handed down by God to Moses. (Moses got cheesed at the Israelites and broke the first set, remember?) The city rejected the gift and Summum sued, claiming that accepting the Ten Commandments created a “public forum” in the park, which they were entitled to use as well.

Writing for eight of the nine justices, Samuel Alito rejected the argument. “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech,” Alito wrote. The government could choose to “say” the Ten Commandments and not to “say” the Summum Principles.

That brings us to the license-plate case. A license plate is not an occasional ad for beef and it’s certainly not a monument. It’s a sign, property of the state, that every motorist is required to display visibly at all times on his or her property. A lot of states, like Texas, have decided to cash in on this requirement by letting private groups pay to display messages on “specialized plates.” Is the license plate a First Amendment-free zone where the state can decide what to require each person to “say”—and what to forbid?

In 1977 the Court held that the state of New Hampshire couldn’t arrest a religious objector who covered over the state motto (“Live Free or Die”) on his plate; in the Texas case, the state wants the same “right”—it objects to the Battle Flag, and wants to cover it up. Because the plates are government speech, Scott Keller, the Solicitor General of Texas, told the justices, the state could use them to encourage some messages and groups, and to silence others, for any reason it chose, aesthetic or political—or indeed, for no reason except whim.

The justices didn’t like that answer; they also didn’t like the idea, proposed by the lawyer for the Sons of Confederate Veterans, that a state that sells “specialized” plates must provide one containing any word or symbol, no matter how foul.

Government is usually the loudest voice in the room; we need rules on how much attention it has to pay to citizens when it decides to shout. A workable rule will balance citizens’ speech rights against government necessity. A number of the justices don’t care much for balancing. But there’s really no escaping it in an area this delicate. The Texas case seems like a good chance for this Court to start settling this beef.