Citing ‘Stand Up For Speech’ Cases, FIRE Urges Supreme Court Not to Expand ‘Government Speech’ Doctrine

Yesterday, FIRE filed an amicus curiae (“friend of the court”) brief in the case Walker v. Sons of Confederate Veterans, Inc., which is currently before the Supreme Court. An amicus brief allows organizations that are not directly involved in the litigation to share their expertise with the justices and make them aware of potential unintended consequences their decision might have.

The case asks whether the state of Texas can deny the Sons of Confederate Veterans’ application for a specialty license plate featuring the Confederate flag when the state allows hundreds of other organizations to design license plates promoting their organizations and causes.

At first glance, specialty license plates may seem unrelated to FIRE’s mission of promoting free expression on college campuses. But at its core, Confederate Veterans deals with the question FIRE faces every day: Can the government censor a particular message that it doesn’t like? Whether the censor is the Texas DMV or a public university president doesn’t really matter.

FIRE’s concern is not hypothetical. As Torch readers know, one of the inaugural lawsuits of our Stand Up For Speech Litigation Project involves the Iowa State University (ISU) chapter of the National Organization for the Reform of Marijuana Laws (NORML). ISU administrators censored the group’s T-shirts, and two students sued. When ISU tried to get the case thrown out of court, its lawyers argued that people might confuse NORML’s T-shirts with official university support for marijuana legalization because the shirts had the trademarked initials “ISU.” Thus, ISU argued, the T-shirts could be seen as speech by the university, not the students—which would make it government speech that is not protected by the First Amendment. This is the same argument that Texas is making: that license plates are government speech rather than the message of the group that designs the specialty plate or the drivers who put them on their cars.

FIRE’s brief explains to the justices that expanding the definition of government speech to include any speech that a government entity plays a role in producing, as ISU does when it licenses student groups to use its trademarks, would pose a serious threat to free speech on campus. In addition to the ISU case, the Stand Up For Speech case at Chicago State University (CSU) also supports this view. CSU started its campaign to shut down the faculty blog CSU Faculty Voice by claiming that the use of the university’s name, as well as a photo of three bushes trimmed into the letters “CSU” on the masthead, would make readers think that the blog represented the views of the university as a whole. CSU made this argument in spite of the fact that the blog’s entire mission is to expose corruption and mismanagement by CSU administrators.

When we launched Stand Up For Speech last July, we hoped it would convince public colleges and universities to abolish their unconstitutional speech codes. Seven months and four settlements later (in addition to policy changes at nine colleges and universities that responded to a certified mailing from FIRE), we have made a quick start towards achieving that goal. But now the project has an additional purpose: helping, if only in a small way, to prevent the Supreme Court from inadvertently making censorship easier on every public campus in the United States. Oral argument is scheduled for March 23, 2015. We’ll be sure to update you then.