“We do not agree with the views of Camp Constitution,” he added, “but we defend his right to express them.”
The Biden administration also filed a brief last week urging the Supreme Court to overturn the First Circuit ruling in Shurtleff v. City of Boston, No. 20-1800. “The city cannot generally open its flagpole to the flags of private civic and social groups while excluding otherwise similar groups with religious views,” the brief said.
In previous cases, the Supreme Court has at times had difficulty distinguishing government speech from private speech in a public forum. One concerned the Confederate battle flag.
In 2015, in Walker v. Sons of Confederate Veterans, the Supreme Court ruled that Texas may refuse to allow specialty license plates bearing the Confederate flag because the plates were a government speech and therefore immune from First Amendment scrutiny. . The vote was 5 to 4.
Texas had authorized hundreds of specialty plaques bearing all kinds of messages, including those intended for alumni, sports fans, businesses and service organizations. Others sent messages like “Choose Life”, “God Bless Texas” and “Fight Terrorism”.
Understanding the Memorable Mandate of the Supreme Court
All were government speeches, Judge Stephen G. Breyer wrote for the majority.
“Generally speaking,” he wrote, “when the government speaks, it has the right to promote an agenda, to espouse a policy or to take a stand. If this were not so, he said, the government would be powerless to encourage vaccinations or promote recycling.
In dissent, Judge Samuel A. Alito Jr. questioned the idea that license plates stating “Rather play golf” or supporting the University of Oklahoma convey a message from the government. The former cannot plausibly represent state policy, he writes; the second, at least in Texas, came close to betrayal during college football season.