Justice Samuel Alito has flexed his judicial muscles most prominently on the government speech doctrine, a prominent concept in many First Amendment free-speech cases. While he has been on the Court a little more than a decade, he already has authored several prominent opinions delving into the contours of this important concept in free-speech jurisprudence.
Under this doctrine, if the government is considered the actual speaker then the government can speak and regulate largely immune from First Amendment scrutiny. To give an easy example, the government could engage in expression, such as promoting a “Don’t Smoke Cigarettes” campaign without having to fund or support a campaign that touted possible benefits of smoking.
Monuments in Public Parks
Alito first addressed government speech in Pleasant Grove v. Summum (2009), a case involving a minority religion’s attempt to place a monument in the public park in a Utah city.
City officials denied the request. The Summum religion claimed city leaders violated the First Amendment free-speech clause, because they discriminated based on religious viewpoint. Their claim ostensibly was bolstered by the fact that the city park already contained a monument of the Ten Commandments, but city officials balked at a monument bearing the “Seven Aphorisms of Summum.”
Writing for a unanimous Court, Alito reasoned that monuments in public parks are a form of government speech. “Permanent monuments displayed on public property typically represent government speech,” he wrote. “Governments have long used monuments to speak to the public.”
Summum contended that the government officials could use the government speech doctrine as subterfuge for viewpoint discrimination. Alito recognized this as a “legitimate concern” but reasoned that “public parks can accommodate only a limited number of permanent monuments.”
Specialty License Plates
Alito and his colleagues returned to the government speech doctrine in Walker v. Sons of Confederate Veterans (2015), a case involving specialty license plates.
The Sons of Confederate Veterans sought a specialty license plate in Texas that featured an image of the Confederate flag. State officials denied their request, claiming the flag was too offensive. The group sued, alleging viewpoint discrimination.
The Court ruled 5-4 that the First Amendment claim failed because the specialty license plates were a form of government ID and, thus, government speech. Justice Alito authored a vigorous dissent infused with a healthy dose of common sense.
Alito asked whether people watching cars passing by with specialty license plates would view the messages on the plates as primarily those of the government or of the drivers: “As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?” Alito warned that the majority’s broad application of the government speech doctrine “takes a large and painful bite out of the First Amendment.”
Most recently, Alito and the other justices confronted the government speech doctrine in Matal v. Tam (2017), a case involving a federal provision prohibiting disparaging trademarks.
Simon Tam, the leader singer of the music band The Slants, sought to trademark the group’s name. While the term is derogatory to many, Tam believed that by taking the slur as the name of their band they could defuse the harmful power of the word. However, the Patent and Trademark Office denied the application, finding that the term was too offensive and disparaging.
When the case reached the U.S. Supreme Court, the justices ruled that the regulation violated the First Amendment’s bedrock principle that the government cannot prohibit simply because it is offensive. The government had argued that trademarks are a form of government speech immune from free-speech review.
In his opinion for the court, Justice Alito rejected the government’s argument. “Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine,” he explained. “For if the registration of trademarks constituted government speech, other systems of government registration could easily be characterized in the same way.”
As these three cases indicate, Justice Alito has taken a prominent role in many of the Court’s government speech decisions. His role will be crucial, because twice he has rejected the overextension of the government speech doctrine and advanced the fundamental free-speech principle that the government should not discriminate based on viewpoint.