Stanford Law Review Online
Helen Norton, Government Speech and Political Courage, 68 Stan. L. Rev. Online 61 (2015), https://www.stanfordlawreview.org/online/government-speech-and-political-courage/, available at http://scholar.law.colorado.edu/articles/183/.
This short essay addresses Walker v. Texas Div., Sons of Confederate Veterans, Inc., in which a divided Court upheld Texas's rejection of the Sons of Confederate Veterans' request for a specialty license plate that featured the Confederate flag. Although it agrees with the majority that specialty license plates can -- and often do -- reflect the government's own expression that the government should remain free to control without running afoul of the First Amendment, it argues that the Walker Court missed an important opportunity to refine its government speech doctrine. Not only has the Court yet to settle on a test for parsing governmental from private speech in contested cases, but the need for a principled approach to government speech controversies is now greater than ever as new expressive technologies continue to multiply and complicate these disputes. The essay urges courts to require a government entity seeking to claim the government speech defense to establish that it expressly claimed the speech as its own when it authorized the communication (i.e., that it established the message's governmental source as a formal matter) and that onlookers understood the speech to be the government’s at the time of its delivery (i.e., that it established the message's governmental source as a functional matter). Such an approach would at long last recognize that government expression’s value springs primarily from its capacity to inform the public of its government’s principles and priorities, and that the public can assess its government’s positions only when the public can tell that the government is speaking.
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