The Government Speech Doctrine in Walker’s Wake: Early Rifts and Reverberations on Free Speech, Viewpoint Discrimination, and Offensive Expression

This Article examines the immediate effects on free expression of the U.S. Supreme Court’s 2015 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. involving the government speech doctrine. In Walker, a sharply—and largely partisanly—divided Court upheld, in the face of a First Amendment challenge, Texas’s decision denying a private organization’s application for a specialty license plate featuring Confederate battle flag imagery. This Article initially reviews the government speech doctrine and Walker. It then analyzes Walker’s impact on cases that, like it, involve specialty license plate programs.

Next, this Article explores lower court efforts stretching Walker’s test for government speech to four very different settings: 1) a public school program that allows banners promoting private businesses to hang on school fences in exchange for monetary donations to the school; 2) highway welcome centers and rest areas offering tourist-oriented literature and advertisements published by private entities; 3) an outdoor lunch program held on public property featuring private food-truck vendors; and 4) the process of federal trademark registration for allegedly disparaging names. Finally, this Article synthesizes the lower courts’ analyses in these diverse scenarios, identifying both themes and problems with the doctrine in a post-Walker world.