Balkinization: Acceptable Government Speech

Acceptable Government Speech

Mark Graber

First amendment theorists who declare, “There is no such thing as a false idea under the Constitution” must not grade papers. Those of us who teach in public law schools might debate whether the ideas in student papers are true or false, but constitutional law examinations are clearly better or worse. Most grading is done on fine scale. Extraordinary examinations are given an A+, excellent examinations an A, etc. Sometimes, when selecting a paper for a prize, we are concerned only with identifying extraordinary speech. Sometimes, as when giving a pass-fail assignment, we concerned only with identifying really bad speech. The rare student who turns in an unacceptable pass-fail assignment cannot complain merely because the professor found the other 350 distinctive papers acceptable.

Justice Samuel Alito’s celebrated dissent in the Texas license plate case, Walker v. Texas Div., Sons of Confederate Veterans, begins by assuming that when government speaks, government should always be giving what government believes is the A/A+ answer to an examination. He points out that when people see a specialty license plate that declares “I’d Rather be Golfing” they do not think that the state is communicating that golfing is the best use of one’s time, better than practicing medicine, feeding the poor, playing poker, or writing blog entries. The hypothetical is not nearly as powerful if when government speaks, government sometimes adopts what we might call the pass/fail approach to ideas and activities. A fair case can be made that most people who see the “I’d Rather be Golfing” license plate think that the state is communicating that playing golf is, along with practicing medicine, feeding the poor, playing poker and writing blog entries, an acceptable activity. Many people would find problematic a license plate that declared, “I’d Rather be Getting High,” because they find that an unacceptable activity, and not simply because they do not think getting high is the best use of one’s time.

The decision in the Texas license plate seems best justified if government speech sometimes communicates a range of ideas or activities that government finds acceptable, and need not be restricting to the limited number of ideas or activities that government thinks best. As both Justices Breyer and Alito agree, Texas is not particularly discriminating in the messages that the state allows to be put on license plates. The reason may not be that Texas is creating a limiting public forum in which no speech may be censored on the basis of content, but that Texas is drawing the line at really bad speech rather than at really good speech. The state issues numerous specialty license plates because the state finds a wide variety of ideas and activities acceptable. To make an analogy, Alito seems to think that once a state employer decides that men need not wear ties or jackets to work, then the state employer cannot mandate that men wear clothes to work. The better view is that sometimes employers insist that their employers be well dressed and other times insist only that they not be poorly dressed. We have similar rules in our classrooms. More often than not, we draw the line at acceptable rather than exemplary. No one thinks our failure to silence a student indicates that we agree with everything a student said. Silencing is limited to unacceptable speech. We have disciplinary conversations with students who claim that superior races exist, but not with those who insist that Marbury v. Madison was wrongly decided (or in some classes, that Marbury v. Madison was rightly decided). When government speaks through license plates, the state may similarly decide whether they wish to communicate the limited number of messages the state thinks best or the numerous messages the state finds acceptable.

Posted 10:32 PM by Mark Graber [link]