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Court Decides Sign and License Plate Free Speech Cases

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By Casey C. Sullivan, Esq. on June 19, 2015 1:58 PM

The Supreme Court released two important free speech decisions on Thursday, finding that the government can't limit temporary signage based on its content but can control what goes on specialty license plates. The difference? Who was speaking.

The twin cases coming up from an Arizona sign restriction and a Texas DMV decision, emphasize the Court's focus on not just the content of speech but on its speaker. The decisions taken together emphasize strictly protecting private speech while allowing greater regulation in government-sponsored speech.

Arizona Signage Rule

The town of Gilbert, Arizona, like many other towns, restricts where and when signs can be placed. Every sign in Gilbert needs a permit, except those that fall under certain exemptions, which allow unpermitted signage but with many restrictions

Some of the most stringent rules apply to "temporary directional signs" that point the public towards church services, nonprofit groups, and "other qualifying events." This means a sign with a message pointing you to Bible study would be held to different standards than one advertising a garage sale or Jeb's candidacy, for example.

That's a straight content-based restriction on speech, the Supreme Court decided in an opinion by Justice Thomas. It doesn't matter that the case involved simply directional speech -- and not, say, a treatise on government; it is still content-based and must withstand strict scrutiny. Of course, almost nothing survives strict scrutiny.

The Justices were unanimous in striking down the ordinance, but many commentators worry that it will undermine common regulations on signs, perhaps even the federal Highway Beautification Act, which limits the types of billboards that can accost you on your commute.

Texas License Plate

Speaking of your commute, it may soon be a bit harder to spot drivers nostalgic for the Confederacy. In its second First Amendment ruling, the Court upheld a Texas DMV decision rejecting a license plate design featuring a confederate flag. The state had rejected the design based on comments that the Confederate flag was offensive and hateful and shouldn't be given the state's seal of approval by slapping it on specialty license plates.

The Sons of Confederate Veterans who seek to "honor and keep alive" the "principles for which Confederates fought," sued the state. They argued that Texas had violated their own freedom of speech by making a content-based rejection of its license plate design. Except it would not be the SCV speaking, the Supreme Court found, but the state. In an opinion by Justice Breyer, the Court found that specialty license plates were government speech, which the government can regulate as it wishes.

If you want a confederate flag on your car, buy a bumper sticker, Breyer said.

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