• 18 December 2009

Mixed Speech: When Speech Is Both Private and Governmental

Caroline Mala Corbin - University of Miami School of Law

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Is it constitutional for a state to issue a “Say Yes to Jesus” automobile license plate?  May it refuse to issue an “Aryan Nation” license plate?  May it deny a “pro-choice” license plate when it has allowed a “pro-life” one?  Under current free speech jurisprudence, the answer depends on whether the specialty license plate is characterized as private speech or government speech.  If a private person is speaking, free speech protections such as those against viewpoint discrimination apply, while Establishment Clause restrictions on religious speech do not.  If the government is speaking, then the reverse is true:  Free speech restrictions on viewpoint discrimination do not apply, but Establishment Clause restrictions on religious speech do.  The problem with this dichotomy is that a great deal of speech is neither purely private nor purely governmental, but is in fact a combination of the two.  In other words, both private individuals and the government are speaking.  This speech should be recognized as “mixed speech.”


I.
The Concept of Mixed Speech

Examples of mixed speech abound.  They include speech by private individuals subsidized by the government, including doctors receiving Title X subsidies, lawyers funded by the Legal Services Corporation, or artists awarded National Endowment for the Arts grants.  Mixed speech also includes speech by private entities on government property such as private advertisements on public transportation systems.  Speech by government employees is another example of speech with both a private and a governmental component.

A final example is the one alluded to above:  specialty license plates.  It is not difficult to see why both the government and the private car owner can be seen as a speaker of the message on specialty license plates.  On the one hand, the state authorizes, manufactures, and owns the license plate.  On the other hand, private individuals select, pay extra for, and display them on their private property (i.e., their cars).  Given the mixed nature of the speech on specialty license plates, it is not surprising that there is a circuit split about whether they represent private speech or government speech.  Finding that specialty license plates were private speech, the Fourth Circuit Court of Appeals held that Virginia could not refuse to issue Sons of Confederate Veterans plates with confederate flags:  Since Virginia issued scores of other plates with images, refusing to issue this one would be viewpoint discrimination.1 In contrast, the Sixth Circuit concluded that specialty license plates were government speech and therefore Tennessee could issue a pro-life plate without issuing a pro-choice one.2


II.
Problems with Characterizing Mixed Speech as Private Speech or Government Speech

The problem with categorizing mixed speech such as specialty license plates as private speech or government speech is that, either way, half the competing interests are overlooked.


A.     Problems with Classifying Mixed Speech as Private Speech

Classifying mixed speech as private speech ignores the government’s interest in dissociating itself from certain kinds of speech.  As private speech, license plates are protected by the Free Speech Clause’s prohibition against viewpoint discrimination, so that once a state has allowed a subject, it must allow all viewpoints on that subject.  As a result, if a state allows specialty plates for fraternal organizations like the Rotary Club with their wagon wheel symbol, then it must allow them for the Sons of Confederate Veterans with their confederate flag and the Aryan Nation with their eagle and swastika symbol.  Likewise, if the state issues “Just Say No to Drugs” plates, then it would have to allow “Just Say Yes to Jesus” plates.  Otherwise it will be seen as discriminating against religious perspectives on healthy living or child rearing and the Supreme Court would consider that unconstitutional viewpoint discrimination.

But although the courts may treat specialty license plates as pure private speech, they are not. On the contrary, there is an irreducible government component. Consequently, the government will be linked to the message on the plate.  In other words, a license plate with both “Virginia” and a swastika embossed on it will be seen as, and is in fact, a government-sanctioned racist message.  Similarly, a license plate with “Virginia” on top and “Just Say Yes to Jesus” below may well amount to government endorsement of religion in violation of the Establishment Clause.  The bottom line is that private individuals are not the only speakers of the messages on specialty license plates.  The government is speaking as well.  To treat them as private speech will lead to government racist messages and government religious messages.


B.     Problems with Classifying Mixed Speech as Government Speech

Classifying mixed speech as government speech, however, is not a solution because it overlooks the free speech interests of private speakers and audiences.  Free speech protections against viewpoint discrimination do not apply to government speech.  While this allows the government to make Rotary Club plates without having to issue Aryan Nation ones, it also means the state can provide pro-life plates without allowing pro-choice ones, or vice versa.

Granted, if the government is speaking, it should be allowed to control the content of its own speech and take positions on controversial issues like abortion.  After all, people vote for parties and candidates based on their political positions.  However, there is an implicit bargain:  The reason that the government is allowed to advance one viewpoint over others is that it is ultimately accountable to the electorate.  If the people dislike the current government’s position, they can vote it out of office.

But in order to hold government accountable for its advocacy, citizens have to understand that the government is speaking and advocating a position.  And that is where mixed speech is problematic:  When both the government and private individuals are speaking, the resulting mixed speech is not readily identifiable as government advocacy.  In other words, when people see pro-life but not pro-choice specialty license plates on the road, they may reasonably but mistakenly conclude that the absence of pro-choice plates is due to the lack of support for the pro-choice position, rather than the government’s pro-life advocacy.  The risk of people mistaking government advocacy for popular opinion is especially high with specialty license plate programs that have dozens if not hundreds of plates from which to choose.  Adding to the confusion is the fact that many plates—like “I Love Bowling” or “Foxhunting Enthusiast” or “Parrothead”—seem completely unrelated to any government policy.

In addition to allowing the government to suppress a point of view without being accountable for its advocacy, treating specialty license plates as government speech distorts the marketplace of ideas.  While barring a viewpoint on a license plate does not banish the idea entirely, it does distort the perceived popularity of it, which, as studies have shown, can affect its persuasiveness.  In short, it allows the government to manipulate the marketplace of ideas in favor of its own position.

An example of treating mixed speech as government speech with particularly serious repercussions can be seen in Rust v. Sullivan, where the Supreme Court upheld the “gag rule” forbidding federally funded doctors from counseling patients about abortion.3 Even assuming a patient was aware that abortion was a legal option, confusion about whether the information conveyed by the doctor represented government policy or her doctor’s professional advice might lead a patient to reasonably believe that her doctor did not think abortion was a medically viable option for her.  In sum, treating mixed speech as government speech can be equally problematic.


III.
The Solution: Classification as “Mixed Speech”

What is the solution?  Instead of treating mixed speech as private speech or government speech, I propose that we acknowledge that it is mixed speech, with both private and government interests present, and subject any government restrictions on viewpoint to a vigorous intermediate scrutiny.  This approach would allow for more nuanced and more transparent decisions.

Let me make this claim concrete with an example.  Take two proposed specialty license plates:  “Say Yes to Jesus” and “Say Yes to Choice.”  Under current free speech jurisprudence, these plates must be classified as either private speech or government speech.  If they represent government speech, then the state can refuse to issue the “Say Yes to Choice” plate even if it issues a pro-life plate, and thereby distort the marketplace of ideas and advocate a viewpoint without accountability.  If the license plates represent private speech, then the state must allow both plates, in which case the “Say Yes to Jesus” plate may run afoul of the Establishment Clause.  In reality, these two plates embody different competing interests and ought not necessarily come out the same way.  Applying intermediate scrutiny shifts the focus from putting all specialty license plates into the same box to examining the competing interests at play in each individual specialty license plate. Rather than having an all or nothing result, intermediate scrutiny supports limiting one plate but not the other.


A.     The “Say Yes to Jesus” Plate

The intermediate scrutiny test generally consists of three questions:

  1. Does the government have a substantial interest in restricting the viewpoint?
  2. Does the government have alternate means of accomplishing the same goals?
  3. Does the speaker have alternate means of reaching the same audience?

Government refusal to issue a “Say Yes to Jesus” specialty plate will likely survive a strong intermediate scrutiny.  The government does have a substantial interest—avoiding an Establishment Clause violation by linking the state to an explicitly sectarian religious message.  The state cannot avoid attribution of this message by alternate means such as adding a disclaimer because license plates are just too small to accommodate such disclaimers.  Finally, the religious speaker does have alternate means of reaching the same audience: Even if the marketplace is defined narrowly as speech on one’s car, bumper stickers are available.


B.     The “Say Yes to Choice” Plate

The result differs for government refusal to issue a “Say Yes to Choice” specialty plate.   Even assuming that advocating a pro-life position is a substantial government interest, the state has plenty of alternate means of achieving that same goal.  For example, it can run a pro-life advertising campaign or refuse to fund abortions.  And though the pro-choice speaker, like the religious speaker, has alternate means of reaching the same audience, the restriction is much more suspect as it is motivated by government hostility toward a particular point of view, rather than the government’s good faith desire to comply with the Constitution.


IV.
Responses to Possible Criticisms

Finally, while intermediate scrutiny has been criticized for inviting ad hoc balancing and possible judicial bias, the current private-speech-or-government-speech approach is no better at curtailing judicial discretion.  A categorical approach only limits judicial discretion if it is obvious which category applies.  That is not the case with mixed speech, which has elements of both.  In other words, balancing of interests is unavoidable in mixed speech cases.  Right now, it takes place sub rosa at the categorization stage.   Given that some kind of balancing is bound to happen, it is better that the courts be open about it, which is much more likely to happen if courts apply intermediate scrutiny.   In sum, in order to reach more nuanced and transparent results, we need to recognize a new category of speech—mixed speech.dingbat

 

Acknowledgments:

Copyright © 2009 New York University Law Review.

Caroline Mala Corbin is Associate Professor of Law at University of Miami School of Law.

This Legal Workshop Editorial is based on the following Article: Caroline Mala Corbin, Mixed Speech: When Speech is Both Private and Governmental, 83 N.Y.U. L. REV. 605 (2008).

  1. Sons of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d 610, 621 (4th Cir. 2002).
  2. ACLU of Tenn. v. Bredesen, 441 F.3d 370, 375 (6th Cir. 2006).
  3. 500 U.S. 173, 209 (1991).

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