The Government Brand

Papandrea, Mary-Rose | October 1, 2016

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the U.S. Supreme Court held that Texas could deny the Sons of Confederate Veterans a specialty license plate because the public found the group’s Confederate flag logo offensive. The Court did not reach this conclusion because it deemed the Confederate flag to fall within a category of unprotected speech, such as true threats, incitement, or fighting words; because it revisited its determination in R.A.V. v. City of St. Paul that restrictions on hate speech are unconstitutional; because travelers who see the license plates are a “captive audience”; or because Texas had a compelling interest in disassociating itself from a symbol that it regarded as promoting racial discrimination. Instead, the Court held that Texas was entitled to ban Confederate flags because all speech appearing on specialty license plates constitutes government speech immune to the usual restrictions of the First Amendment. This Article dissects Walker and its larger significance for the government speech doctrine. This case takes the Court’s growing deference to institutional government actors and puts it on steroids. Relying heavily on a “reasonable person” inquiry, Walker suggests that it will frequently be “reasonable” for people to believe that the government has endorsed private speech appearing on public property or spoken by a public employee or student. But under well-established First Amendment principles, the government’s tolerance of private expression is not the same as endorsement. The Article examines the dangerous implications of Walker in a wide variety of contexts, from the speech rights of public school students and government employees, to advertisements on public transportation, and to new means of communication.