Walker v. Confederate Veterans
No Constitutional cases catch our collective attention more than First Amendment cases. While the Court did not take up the free speech issues in Elonis, it did not avoid the First Amendment entirely. The Court gave states substantial power to regulate potentially offensive speech on specialized license plates in Walker v. Texas Div., Sons of Confederate Veterans, Inc. [Read our Preview here.]In 2009, the Texas Department of transportation denied The Texas Division of the Sons of Confederate Veterans’ application for a specialty license plate featuring the Confederate battle flag. A subsequently-created board denied the application again in 2011, explaining that comments submitted by the public revealed that a significant portion of the population interpreted that flag as an expression of hate; and, as a result, the Board felt it was necessary to deny the application. The group claimed that the denial violated its First Amendment right to freedom of speech and expression. By a vote of 5-4, the Court ruled for Texas, explaining that what is placed on a license plate constitutes government speech. Justice Breyer wrote for the majority, “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” Beyond the fact that First Amendment cases are almost always newsworthy, this was especially interesting in light of the national dialogue about the Confederate flag occurring alongside of, but apart from, the issuing of this opinion. It is also a good example of how quickly the notions of ideological “camps” and “swing votes” within the Court can break down: Justice Kennedy (the so-called “swing vote” in cases like Obergefell) was in the minority along with the Chief Justice and Justices Alito and Scalia, while Justice Thomas found himself in the majority with Justices Breyer, Ginsburg, Sotomayor, and Kagan.