Document Type

Article

Publication Title

Alabama Law Review

Publication Date

2016

Abstract

In Walker, the Court deemed Texas’ specialty license plate program government speech, and thus applied no First Amendment review to the state’s refusal to allow a Confederate battle flag specialty plate, even though the reason for the refusal was that the plate was offensive. The dissent considered this unconstitutional viewpoint discrimination in a limited public forum. This article argues that the Walker result was correct, but for the wrong reason. Government should have the power to forbid hateful or vulgar speech from limited public forums such as specialty or vanity license plates, transit ads, and after-school extracurricular activities, even though such restrictions are viewpoint-based. We should borrow from government speech doctrine, where we give the state significant viewpoint-based leeway to advance its views of the good. We should be less concerned about “negative theory,” i.e., distrust of government to draw sufficiently principled lines, in these settings, which we should rebrand “speech platforms.” We can keep negative theory’s strong principles for regulation of private speech and for speech in traditional public forums such as streets and parks. The article explains that the so-called rule against viewpoint restrictions in limited public forums has been applied only in religious speech cases, where other concerns were also in play, and elsewhere stated only in dicta. And it explores the misattribution concern that so animated the Walker Court and that has been key to several Court decisions in the limited or nonpublic forum setting, arguing that we should rely less often on the concern that people will mistakenly attribute private speech to the state.