Supreme Court Says Texas Can Ban Confederate License Plates, Endangering Freedom Of Speech
The Supreme Court ruled that states don't have to grant license plates that display the Confederate flag. Their decision has the potential to seriously harm the First Amendment.
The Supreme Court ruled today that the State of Texas did not violate the First Amendment when it declined to issue a license plate commemorating the Sons of Confederate Veterans, a decision that is likely to impact similar specialty license plate programs across the nation:
WASHINGTON — The Supreme Court ruled on Thursday that Texas did not violate the First Amendment when it refused to allow specialty license plates bearing the Confederate battle flag. Such plates, Justice Stephen G. Breyer wrote for the majority, are the government’s speech and are thus immune from First Amendment attacks.
The vote was 5 to 4. The court’s other three liberal members joined Justice Breyer’s majority opinion, as did Justice Clarence Thomas.
In dissent, Justice Samuel A. Alito Jr. wrote that the majority opinion “establishes a precedent that threatens private speech that the government finds displeasing.”
The majority relied heavily on the court’s 2009 decision in Pleasant Grove City v. Summum, which said that a donated Ten Commandments monument in a public park was the government’s speech. When the government speaks, the court said, it is free to say what it likes.
Nine states have let drivers choose specialty license plates featuring the Confederate battle flag and honoring the Sons of Confederate Veterans, which says it seeks to celebrate Southern heritage. But Texas refused to allow the group’s plates, saying the flag was offensive.
Texas has hundreds of specialty plates. Many are for college alumni, sports fans and service organizations, but others send messages like “Choose Life,” “God Bless Texas” and “Fight Terrorism.”
The state has almost never rejected a proposed design. But the eight members of the board of its Motor Vehicles Department were deadlocked in April 2011 over whether to allow one featuring the Confederate flag, and by the time the board next considered the question, in November 2011, civil rights groups had mobilized.
The board then voted unanimously to reject the license plate. In the process, it weighed in on a part of Civil War history that continues to reverberate across the nation, from a fraternity at the University of Oklahoma to South Carolina’s state capitol, 150 years later.
“A significant portion of the public,” the board said, “associates the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”
As I noted when I wrote about this case in December when the Justices accepted this case for appeal, on the surface it might seem that the argument that the First Amendment applies to the issuance of license plate is a rather specious argument. These plates, after all, are issued by state governments for the purpose of identifying vehicles and ensuring that the vehicles on the road are properly registered, among other purposes. As a general rule, car owners are not permitted to alter the plates in any way or to put their own messages on it.. For decades, the configuration of those plates and what was said on them was beyond the control of the car owner, and there was generally one standard plate issued for all vehicles of a similar type. In 1977, though, the Supreme Court threw the states a curve ball by ruling that it could not compel certain forms of speech merely by putting it on a license plate that everyone is required to display on their car. That case, Wooley v. Maynard. involved a member of the Jehovah’s Witnesses in New Hampshire who objected to the slogan “Live Free Or Die” on his license plate. The Court ruled that states could not use a license plate to compel speech that violated a driver’s beliefs merely by putting it on a license plate. Obviously, a ruling like this created some inconvenience for states who might have to prepare special plates for a relatively small number of people, but for the most part the impact of the decision seemed to be rather minimal.
In the time since that case, though, the license plate “business” has changed significantly. In pretty much every state, it is now possibly to choose from a wide variety of specialty plates that commemorate everything from wilderness conservation and childhood education to college ties and historic events. In many states, such as Texas, private organizations can petition the relevant authority to have a plate created for them, with at least some portion of the additional fees that car owners pay for the plate going to the organization. That’s where the Sons of Confederate Veterans comes in. They applied for a specialty plate and, despite the fact that they met the petitioning requirements for the program, the board denied the application because of the potentially inflammatory nature of a plate such as theirs. The District Court and the Fifth Circuit Court of Appeals both ruled in favor of the Sons of Confederate Veterans, but the Court has now reversed those decisions.
When I wrote about this last year, it seemed to me that the Supreme Court would be likely to uphold the Fifth Circuit unless it wanted to revisit the Wooley holding in some way. At oral argument, though, it became clear that there was real disagreement among the Justices over whether a license plate is something that would qualify as an individual’s exercise of their First Amendment rights, in which case the SCV would clearly have to prevail, or an example of “government speech” where the government as a whole is free to speak or stay silent as it pleases. As Lyle Denniston notes, however, the Justices found that the license plate is government speech and that the government is free to do as it wish, with the proviso that the holding in Wooley is apparently still good law:
The First Amendment was not the decisive factor in the license plate controversy. The Court, dividing five to four, ruled that the messages on those plates are “government speech,” and, as such, the First Amendment imposes no direct curb on the content of that message.
Even so, the Court did leave intact a famous ruling from 1977 (Wooley v. Maynard) declaring that the government cannot force a private motorist to display an “ideological” message that offends him. That result, however, left the government — after the new Texas ruling — with a wide authority to issue a nearly unlimited kind of messages that it wished to promote.
n other words, Justice Stephen G. Breyer wrote for the majority, states have new authority to use “license plate slogans to urge action, to promote tourism, and to tout local industries.” The state, in running such a program, does not have to match the messages it prefers with messages that it opposed, according to the decision.
The majority likened a state’s program of issuing specialty or “vanity” plates to much the same kind of government activity as choosing which message-conveying monuments to allow in a public park.
Aside from Justice Thomas, the Breyer opinion was joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.
Justice Samuel A. Alito, Jr., wrote a strongly worded dissent, arguing that people seeing cars and trucks passing by on the roads definitely do not read license plate slogans as the government speaking, given the immense variety of what Texas has allowed to be said on those plates. The dissent was joined by Chief Justice John G. Roberts, Jr., Anthony M. Kennedy, and Antonin Scalia.
The four dissenters have often joined with Justice Thomas in recent years in expanding First Amendment rights.
Josh Blackmun is not pleased with the decision, not so much because of the outcome, but because of the reasoning the majority embraced:
Walker v. Texas Div., Sons of Confederate Veterans, Inc. is not only wrong, but dangerous. Five Justices embraced Justice Breyer’s democratic vision of the First Amendment, albeit an odd bunch. As it turns out Justice Thomas would have had to assign Justice Breyer the opinion to write for RBG, Kagan, and Sotomayor. (I don’t know that CT has ever made such an assignment in a 5-4 decision).
As I discuss in Collective Liberty, Justice Breyer has been making a concerted effort to reorient the First Amendment not around individual liberty, but on “collective speech.” That is, what kind of speech makes democracy work. This decision screams “collective liberty,” with its capacious understanding of “government speech” that is flatly inconsistent with Summum. By making the real of “government speech” bigger, the Court is able to contract “private speech.” This is dangerous.
Consider Justice Breyer’s opinion, which ties the First Amendment and the “Democratic Electoral Process together”
When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Pleasant Grove City v. Summum, 555 U. S. 460, 467-468 (2009). That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235 (2000).
No! The First Amendment puts a limit on the democratic process. We don’t allow the majority to censor disfavored speech. This is so fundamentally wrong, and it got 5 votes.
As he did in McCutcheon, Justice Breyer relies on Stromberg to have a very deliberation-heavy vision of free speech:
Instead, the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect its electoral man- date. See Stromberg v. California, 283 U. S. 359, 369 (1931) (observing that “our constitutional system” seeks to maintain “the opportunity for free political discussion to the end that government may be responsive to the will of the people”). Were the Free Speech Clause interpreted otherwise, government would not work.
The Free Speech Clause has absolutely nothing to do with a well-functioning government. In many respects, censorship would make government a lot more efficient. But efficiency is not a goal of our Constitution. (Breyer and Scalia had this same debate in Noel Canning).
Andrew McCarthy is similarly bothered, and points to Justice Alito’s dissent:
[Is] it really “government speech”? In dissent, Justice Samuel Alito (joined by Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy) pointed out that the state has licensed some 350 specialty plates, some of which cannot conceivably be statements of government policy (e.g., “Rather Be Golfing”; “NASCAR – 24 Jeff Gordon”; Young Lawyers”; “Get It Sold With Remax”; and “University of Oklahoma” – a major football rival of Texas schools – as well as several other out-of-state institutions). In fact, the dissent pointed out, the state has also authorized a plate honoring “Buffalo Soldiers,” African American soldiers originally of the Army’s post-Civil War 20th Cavalry Regiment. While that outfit would be broadly popular no doubt, the plate offends at least some Native Americans, who protested that they felt the same way about the cavalry as African Americans did about the Confederacy.
The point, of course, is that although the state is the issuer of the license plates (which it requires all automobiles registered in Texas to display), the speech expressed on the specialty plates is associated with the private parties who propose, select, and exhibit the plates. Therefore, it is not reasonably understood as government speech; it is private speech that the government is regulating – and government has no business using its regulatory authority to favor or disfavor competing points of view.
Thus, at least in the narrow context of license plates, the Court has given its imprimatur to a government power to discriminate, to promote expression it approves of and suppress expression it does not. This is alarmingly inconsistent with the Constitution’s protection of private opinion or expression from government intrusion, suppression, or editing.
The decision is obnoxious even if it is truly confined to license plates
It seems to me that Blackmum and McCarthy have the better argument here, and that the Justices in the majority have expressed a doctrine that is potentially dangerous to First Amendment rights. It may seem innocuous when it’s applied to license plates — and, indeed, I think it could be possible to come up with a rationale that allowed Texas to win here without adopting the broad doctrine that Breyer did in his opinion — the problem comes into play when you start to consider some of the potential future scenarios this opinion could be applied to. Justice Alito note some of those potential hypothetical situations in his dissent, and also makes the broader point that the Court has essentially ratified viewpoint discrimination, something which First Amendment analysis traditionally rejected, by calling it “government speech”:
Texas does not take care to approve only those proposed plates that convey messages that the State supports. Instead, it proclaims that it is open to all private messages—except those, like the SCV plate, that would offend some who viewed them.
The Court believes that messages on privately created plates are government speech because motorists want a seal of state approval for their messages and therefore prefer plates over bumper stickers. Ante, at 10-11. This is dangerous reasoning. There is a big difference between government speech (that is, speech by the government in furtherance of its programs) and governmental blessing (or condemnation) of private speech. Many private speak- ers in a forum would welcome a sign of government ap- proval. But in the realm of private speech, government regulation may not favor one viewpoint over another.
The Board rejected Texas SCV’s design, “specifically the confederate flag portion of the design, because public comments have shown that many members of the general public find the design offensive, and because such comments are reason- able.” App. 64. These statements indisputably demon- strate that the Board denied Texas SCV’s design because of its viewpoint.
The Confederate battle flag is a controversial symbol. To the Texas Sons of Confederate Veterans, it is said to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil War. See id., at 15- 16. To others, it symbolizes slavery, segregation, and hatred. Whatever it means to motorists who display that symbol and to those who see it, the flag expresses a view- point. The Board rejected the plate design because it concluded that many Texans would find the flag symbol offensive. That was pure viewpoint discrimination.
I don’t find myself agreeing with Justice Alito very often, particularly on matters of criminal law, but he’s absolutely right here. The First Amendment is more important than whether or not some people might be offended by the SCV’s plate.
Here’s the opinion: