Tom Evslin: New VTrans policy is unconstitutional and just plain wrong 

Editor’s note: This commentary is by Tom Evslin, the former chair and co-founder of NG Advantage, who is also an entrepreneur, author and former Douglas administration official. He is on the board of the Vermont Journalism Trust, the parent organization of VTDigger. This post first appeared on his blog, Fractals of Change.

“Vermont’s Agency of Transportation has issued a new policy allowing street art to remain in public spaces within certain safety and decency parameters,” according to VTDigger. By itself, this would not be unconstitutional, just an issue of whether or not the public wants to see graffiti and political messages scrawled on walls, bridges, and abutments.

The new guidance was issued when “Black Lives Matter” was written on a bridge in Jamaica. VTRANS workers erased it as they were required to under the old policy regardless of content. Courts have consistently held that political entities may ban ALL writing and drawing on structures so long as the ban is content neutral. People immediately complained about the message being removed.

As quoted by VTDigger, Vermont Agency of Transportation Secretary Joe Flynn said: “it seemed that many people might think we were trying to stifle a conversation that’s very important to be having today. So we decided that we would exercise discretion and that voices needed to be heard.” Allowing voices to be heard is a decision government can make, so long as it allows all voices to be heard. But that’s not what happened.

When asked how the guidelines would apply to a message like “White Lives Matter More,” Flynn said the agency would implement the guidelines on a “case-by-case basis.” Profane messages, or messages which compromise public safety will be taken down; although the definition of profanity is in the eye of the beholder, this rule would probably pass constitutional muster. But Flynn continued, “If it starts to get into the area of rights to the First Amendment, and what one person feels is appropriate versus another, we’re really going to have to look at that on a case-by-case basis,” he said. “But the current topic, racial justice, is very important. And we feel strongly that, for now, we’re going to look at it this way.”

Bong! Unconstitutional! The Secretary of the Vermont Agency of Transportation may NOT decide on a case-by-case basis that certain topics or certain opinions on certain topics are “very important” and deserve special treatment. No matter how politically expedient such a decision might be. If “Black Lives Matter” (I agree, they do) is allowed to remain, then “White Lives Matter More”, as obnoxious as it is, must be allowed to remain also. You cannot allow the sign “good people wear masks” without also allowing the sign “real men don’t wear masks”.  Government may not regulate political speech depending on content.

On constitutional grounds, the policy can either be all opinions welcome (except those advocating violence or endangering public safety) or no writing on the bridges. On practical grounds, the only possible policy is the old one: don’t write on the bridges (I was Vermont Transportation Secretary a million years ago). If you allow all writing, do you have to police people writing over each other’s messages or does the last message stand? Does every VTRANS worker have to decide what is profane or dangerous? Is “Johnny Loves Sally” an expression of affection or a slander? If you are repairing a structure, do you need to preserve the last layer of graffiti? What about commercial messages? We have a law against roadside signs but what about a chalk sign recommending for (or against) a particular restaurant?

In this case, though, the constitutional issue is what matters. Government must not decide on a “case by case” basis what speech to allow. It used to be that, when free speech was threatened, the ACLU came quickly to the defense. For example, the ACLU defended the right of Nazis to march in Illinois. I’m a Jew and could scarcely dislike (and fear) Nazis more; nevertheless, I contributed to the ACLU because they defended free speech. Today, when free speech is under attack from the right and from the left, it has unfortunately few defenders… at least few who are speaking up.

Government must not regulate speech by content!

See also:

 Peter Berger: Protecting free speech for an excellent article on the probably unconstitutional firing of a Vermont principal for what she posted on Facebook.

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