The Supreme Court handed down two decisions today on free speech cases, both of which did some hair-splitting on the role government has in regulating certain types of speech. What's interesting is that they seemed a bit contradictory at first glance, since one was decided in favor of government regulation of free speech and one was not, but these are awfully fine hairs to be split and in reality the cases are only superficially similar.

The first case dealt with a local town's sign ordinance. Every town has rules for what signs it allows, which mostly deal with size and height and things of that nature -- basic "building code" stuff, in other words. A Burger King restaurant isn't allowed to throw up a sign hundreds of feet high, for example, in a town where everyone else has much smaller (or shorter) signs. But the town in question had regulations which differed depending on what was being said. A church sued, since it fell under very strict rules for "events," according to the town. Event signs had to be smaller than other allowed signs -- categories which even included political signs. The church maintained that this was unfair and that they should be allowed to have a bigger sign.

As with many Supreme Court cases, by the time the case was heard by the high court, the problem had actually been solved (the town changed its regulations a few years back). So the case was decided merely for the legal reasoning -- to set a precedent, in other words. In a unanimous decision (a relative rarity for this court), the Supreme Court agreed with the church. The reasoning behind the decision is that government (local, in this case) cannot set up different rules for speech (posting a sign in public) depending on the content of the speech. If big signs are allowed for politics, then big signs need to also be allowed for churches. This ruling reinforces the principle that government cannot pick and choose which speech it likes, and must treat all equally.

This is where the superficial similarity comes in, because in the second case, the court ruled that government actually can differentiate between speech, depending directly on the content of the speech. The big difference, however, is that the "speech" in question in this case appears on state-issued vehicle license plates.

The state of Texas, like many states, offers specialty license plates for various groups (such as college alumni or veterans, for example), with each group's customized logo prominently displayed. The problem arose when a group wanted to create a "Sons of Confederate Veterans" plate, with the Confederate battle flag as their logo. The state solicited public comments on the plate. Almost all of the public comments were negative, and Texas decided to refuse the group permission to create their own plate. The group sued, maintaining that by refusing them a specialty plate the state was indeed picking and choosing which speech was allowable, using only content to decide. As in the other case decided today, governments are supposed to be neutral on such speech -- even on politically contentious issues (or perhaps "especially on politically contentious issues").

But a church putting up a sign on their own is a different thing than a state issuing an official license plate. The state is not involved in the church's speech, other than dictating the size of the sign. The state is intimately involved with creating license plates, however. Texas argued that creating a plate with a Confederate flag on it was offensive to the public and they did not want to be seen as officially endorsing such speech.

The Supreme Court, in a very close 5-4 decision, sided with Texas. Their reasoning was that since the state is involved in the production of the license plate, they are allowed to exercise a certain degree of control over what they allow on the plates. One easy example of this legal reasoning is obvious -- states that offer "personalized" plates (on which you can spell out your name, for instance) routinely search applications for profanity, which they do not allow. Just because you have a free speech right to use profanity does not mean that the state has to condone it by printing it onto your car's license plate, in other words. Now, I am not equating the Confederate flag with profanity here, just to be clear, but you can see why the state wants to have some sort of control over their own state-issued license plates, even if it does curtail someone's free speech rights. The state in this case has to be seen as officially endorsing the message on their own license plates, to put it slightly differently.

This Supreme Court decision was an odd one, because while all four liberal justices voted to support Texas, the four on the other side consisted of only three conservatives plus the normal swing vote (Kennedy). The surprise was that Clarence Thomas actually voted with the majority. Thomas is not normally seen as much of a swing vote, and he also is not normally seen as being overly sensitive to African-Americans (even though he is one). But Supreme Court cases occasionally have surprising bedfellows, so to speak.

What's even more interesting about this case is that other federal courts have ruled in the exact opposite direction, for two different states. Both Maryland and Virginia were ordered to create a Sons of Confederate Veterans plate, even over the states' objections. Now that the court has ruled on the Texas case, it will be interesting to see what happens to the S.C.V. plates along the banks of the Potomac.

Both of these cases are not ground-shaking First Amendment cases -- they both slightly split hairs on the issue of when governments can be involved in regulating speech, but not in any fundamental way (at least, to me). There's no "shouting fire in a theater" aspect to either of them, really. The Founding Fathers would have had to have the concept of a "license plate" explained to them, so no "original intent" was really even involved. But the cases do move the goalposts slightly in terms of what restrictions on free speech by governments are legally allowed. Of course, there are bigger decisions pending, so these cases will likely be quickly forgotten by most in the next few weeks, but being a close observer of all First Amendment rights (free speech in particular), I felt that they were both worth a mention.

-- Chris Weigant

Follow Chris on Twitter: @ChrisWeigant