In his recent column, Daniel Burns authored an interesting perspective touching on the First Amendment issues raised in Walker v. Texas Division, Sons of Confederate Veterans, a case before the Supreme Court of the United States. I would like to expand upon the backstory of the case, and also illuminate some of the complex First Amendment issues at play.

Walker centers on a non-profit organization, the Texas division of the Sons of Confederate Veterans (TSCV), and its efforts to obtain a specialty license plate from the Texas Department of Motor Vehicles (DMV). The specialty license plate proposed by the TSCV featured two confederate flags: one in the organization’s logo, and one in the background of the plate. The Texas DMV voted to deny the proposed license plate after receiving negative comments from the public; the DMV had a policy that it “may refuse to create a new specialty license plate if the design might be offensive to any member of the public.” The TSCV sued, claiming its First Amendment right to Free Speech was violated.

Facially, this may seem like a simple case of government oppression of unpopular speech. And yes, the Supreme Court is considering whether the Texas DMV engaged in impermissible viewpoint discrimination by denying the license plate.

However, there’s more to this case than meets the eye. The Supreme Court is also considering whether specialty license plates should be considered private speech at all. The Texas DMV contends specialty license plates are not private speech; instead, the DMV claims they are government speech, and therefore immune from the requirement of viewpoint neutrality.

The “government speech doctrine” is a fairly recent development in First Amendment jurisprudence. In essence, the doctrine holds that when the government is the “speaker” of a message, the government is not held to the requirement of viewpoint neutrality. The doctrine recognizes that the government has an interest in communicating official, partial messages to the public. A commonly cited example; the Drug Enforcement Administration can express its own non-neutral viewpoint that marijuana is a dangerous drug, without also expressing the viewpoint that marijuana may be benign and safer than other drugs. In this example, the First Amendment is not being violated because no private speaker is being silenced; the government is simply choosing what message it itself wants to spread.

The case at hand poses a unique problem. An individual creates a license plate design and submits it. The government approves the message, produces the license plate, and distributes it, alongside the state-regulated identification number present on license plates.

Who’s speaking?

Like Mr. Burns, I agree that offensive speech should not be banned. The Supreme Court agrees as well; the Court has consistently upheld the right to free expression, even the right to express offensive messages.

But the issue raised in Walker is more complex. The real question seems to be: what do we do when the line between private speech and government speech blurs? And that question is still up for debate.

– Matthew Vasilakos graduated in 2014 with a degree in Psychology and English and is currently in his first year at Cornell University Law School