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.

Texas Confederate License Plate

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:

Walker v. Sons of Confederate Veterans by Doug Mataconis

FILED UNDER: *FEATURED, Law and the Courts, Race and Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. DrDaveT says:

    Sorry, but I have to go along with the court on this one. In particular, all of your First Amendment arguments are conflating censorship with declining to speak. They are utterly different.

    The Court ruled, 5-4, that private citizens cannot compel the government to say a particular thing, though the government may (at its discretion) say something that private citizens ask them to say on their behalf.

    If you want to argue that the government should have no discretion in what it says — that it must either say everything or nothing that it is requested to say by private citizens — then I’m willing to listen to that argument. If you argue convincingly, I might end up agreeing that, you’re right, we should also get rid of the “Get it sold with ReMax” license plate. But the First Amendment does not protect the right to compel the government to say what you want them to say.

  2. Tillman says:

    I’d just like to add to DrDave’s response that this is all due to government squabbles over a state motto being on a car license plate opposed by some religious nut. This isn’t a free speech issue, it’s an issue of bad precedent. The first case should’ve been laughed out of court.

  3. Scott says:

    I think the ruling is wrong.

    If license plates are considered “Government speech”, then the Government needs to get out of the business of issuing license plates. There is just too much mischief to allow the Government to pick and choose here. License plates are for identification and are the property of the state.

    If the ruling was just the opposite, then it would allow anyone to say anything they wanted. Which is almost as bad.

    If people want to speak or display their vanity, then use a bumper sticker, paint your vehicle, or some other means of communication. The purpose, anyway, is just to make money.

  4. stonetools says:

    Isn’t the point that the government is putting its imprimatur on the license plate owner’s viewpoint? If a guy buys a Confederate battle flag and puts it on his car, he is expressing a particular viewpoint. But if he puts it on a government issued license plate, that is certainly at least hinting that the government of Texas is in full agreement with the viewpoint that the Confederacy was just and good. And given Texas’ history….

    I know that I for one, am clear what the States of Georgia and South Carolina are expressing when they put the Confederate battle flag on their states’ flags. I would feel the same way if Texas put the Confederate flag on license plates.

  5. Modulo Myself says:

    I’ll give a s–t when someone tries to ban Confederate bumper stickers. Otherwise, I can’t see how the government can be compelled by the First Amendment to ally itself with racists.

  6. Tyrell says:

    That flag was one of several battle flags used by the various battalions of the Southern army. When I was a child it was common to see it on bumpers as stickers or tags around here. I don’t recall anyone having a problem with it then. I still it now but not as much.

  7. michael reynolds says:

    How about we just kill personalized plates? Problem solved.

  8. CSK says:

    @michael reynolds:

    No chance. The states make money off them.

  9. gVOR08 says:

    @Tyrell: It’s been a hundred and fifty years. Maybe another hundred and fifty the South will get over the Civil War.

  10. Ron Beasley says:

    Government issued license plates should not be included in the first amendment. If you want to put a confederate flag bumper sticker on your car OK but you have no right to a confederate license plate.

  11. DrDaveT says:

    @CSK:

    No chance. The states make money off them.

    Exactly. And while I’ll admit that it does annoy me to see license plates that are thinly-disguised anti-abortion messages or PETA polemics, I really do want my state to be solvent, and selling high-volume optional gear at huge markups is a painless (and less regressive than our current tax structure) way to help accomplish that.

  12. grumpy realist says:

    Given how SCOTUS rules, I’m not too worried about this being used as precedent. SCOTUS will do as it damn well pleases the next time something like this comes around and will make up some argument as to why the next case is same/different from this one.

  13. Gustopher says:

    @Tillman:

    I’d just like to add to DrDave’s response that this is all due to government squabbles over a state motto being on a car license plate opposed by some religious nut. This isn’t a free speech issue, it’s an issue of bad precedent. The first case should’ve been laughed out of court.

    I don’t see why that first decision was bad. The state should not be able to compel the individual to speak. And, this one also makes sense — the individual should not be able to compel the state to speak.

    The license plate is not just individual speech, or state speech, it is both.

  14. HarvardLaw92 says:

    @stonetools:

    Isn’t the point that the government is putting its imprimatur on the license plate owner’s viewpoint?

    No, license plates remain the property of the state governments which issue them and must be surrendered back to those state governments upon demand. You as the licensee are not buying the plate – you are paying a fee in order to be allowed to use it for a specified period of time.

    In the case of specialty license plates, that works in both directions – private parties allow their (presumably copyrighted) imagery to be displayed on a specialty license plate in exchange for a percentage of the revenue generated by that specialty plate. The state MAY, but is under no obligation to, enter into that exchange agreement with you.

    That having been said, I see no 1st Amendment argument here in favor of the appellants. They do not own the license plates – Texas does – in perpetuity. Equal protection – MAYBE, and that’s stretching the 14th Amendment about as far as it can go, but 1st Amendment? No go …

    It seems pretty cut and dried that the owner of an item can’t be compelled by another party to present a message on that item with which the owner disagrees.

  15. Mu says:

    I agree with the decision. While the confederate battle flag is probably not the best case it hang it off, what is PA going to do if someone wants a “Free Abu Jamal” plate?, Or a “McVeigh my hero” plate for OK? If for no other argument that a highly controversial message would give rise to defacement, interfering with the government interest of having all cars clearly identifiable. As the restriction is truly narrowly tailored (we’re talking 10 square inches here) I’d say it passes strict scrutiny ;).

  16. Gavrilo says:

    I’ve always viewed the Confederate flag as a pathetic anachronism. Why Southerners want a constant reminder of the Confederacy’s ignominious defeat is beyond me.

  17. Argon says:

    @DrDaveT:

    The Court ruled, 5-4, that private citizens cannot compel the government to say a particular thing, though the government may (at its discretion) say something that private citizens ask them to say on their behalf….

    Additionally, in Florida, citizens can’t even get public officials to say the words “global warming” or “climate change” to describe the phenomenon itself.

    http://www.rawstory.com/2015/03/awkward-watch-as-florida-lawmaker-mocks-rick-scott-official-for-refusing-to-say-climate-change/

  18. Grumpy Realist says:

    Also, it seems to me that there’s a good niche market for making license plate holders that have your preferred emblem on the frame.

    Either that, or allow the state to hike up what it charges for particularly obnoxious license plates (say$10k/year or so) and plug the holes in their budget.

  19. Xenos says:

    @Gavrilo: it is not an anachronism. It is an ongoing, continuing threat to murder black people and non-racist whites. It is a celebration of treason.

    We should be responding quite forcefully to every attempt to display it.

  20. dennis says:

    It’s funny how all these “states-righters” go all goober-eyed when the state exercises itself against something they desire.

    It’s ridiculous that a state would endorse the period of slavery and national rebellion (as some Southern states do …), and equally ludicrous that anyone would whine when it doesn’t. This is not about First Amendment rights; this is about NOT being a d**k.

  21. Liberal Capitalist says:

    Good.

    I’m in Austin right now… On the way here, I sat next to a nice Texas good old boy racist.

    The jerk just wouldn’t shut up, even though I have headphones on and a movie on the tablet.

    From his worldview, it was apparent that everyone white shared his opinion.

    We don’t need any more reasons for people like him to have any government provided justifications for his actions.

  22. James Joyner says:

    I think Doug has it right here and the Court has it wrong. Yes, license plates are a state-owned thing and the state has a right to decline to seem to endorse political viewpoints on things that it owns. But that right should be content-neutral. The state shouldn’t be allowed to issue pro-Christian plates but refuse to deny pro-Muslim or pro-Atheist plates. Given that the state allows all manner of civic organizations to use the platform of state-issued license plates to convey their message, the state declining to allow SCV to do so is a content-based restriction on the right the free speech, which is precisely what the 1st Amendment protects against.

    The solution may well be for the state to decline to issue any sort of plates that may be construed to have a political message rather than to open the forum to all comers. But it’s one or the other.

  23. HarvardLaw92 says:

    @James Joyner:

    Issuing a pro-Christian plate (or a pro-Buddhist plate, or a pro-Islam plate), in and of itself, IMO violates the separation doctrine and the practice should be unconstitutional on that basis.

    That having been said, the analogy is specious. This not a religious message.

    Beyond that, the state is not limiting anyone’s ability to speak. It is limiting its own speech, and in that regard, it should have fairly broad leeway (within the confines of other appropriate limitations – for example the establishment doctrine) to determine which messages it wishes to promulgate and which messages it declines. There seems to be confusion between “the state is denying me the right to speak” and “the state is denying me the right to compel it to speak on my behalf”. They are not the same thing.

    If there is any issue at all here, it seems to me to be rooted in disparate criteria (and as I noted above, that is a stretch in and of itself), not abrogation of speech. The state is certainly free to abrogate its own message.

  24. HarvardLaw92 says:

    I have to say too that I’m somewhat surprised that you chose to run with Walker rather than Davis v. Ayala. That one disturbs me much more than this comparative nothing.

  25. gVOR08 says:

    @HarvardLaw92: Clear, concise argument.

    There seems to be confusion between “the state is denying me the right to …” and “the state is denying me the right to compel …”. They are not the same thing.

    There seems to be a lot of that going around these days, currently with gay marriage.

  26. al-Ameda says:

    I must admit, a part of me thinks there is value to knowing who honors a flag that many rightfully believe represents a defense of slavery and the denial of the basic rights of citizenship to an entire race of people.

  27. Tillman says:

    @Gustopher:

    I don’t see why that first decision was bad. The state should not be able to compel the individual to speak.

    It’s bad in my view because, like Citizens United, a license plate is not speech. They were fine with living in a state that had the motto “Live Free or Die,” but putting it on a license plate goes too far? Did they ever litigate against the motto itself? Did they petition representatives to get it changed? Was anyone in the state honestly thinking the license plate with the state motto was speaking for them?

    It seems to me it only became a bad motto the moment someone was forced to endure the same regulations everyone else does when it comes to cars. They didn’t rule on speech, they ruled on momentary discomfort and turned it into some strange hallmark of First Amendment precedent.

  28. hushup says:

    The gov’t is not some independent living entity. It’s just a bunch of individuals (hired, voted in, and picked by other government employees). We as the citizens of each State and then the union should be very wary when the government starts being talked and thought about as a separate independent thing with a mind of it’s own. That perspective is a strong indicator that we the people are losing touch with why we the people organized the government in the first place.

    The ruling of the supreme court judges is nothing more than populist doubletalk.

    The government is just people. They are people with strong personal, religious, political, and racial biases one way and the other. Many times they themselves violate their own oaths and job parameters. There is no criteria for a government employee to be a ‘good’ unbiased person. In everything they do they are compelled by others.

    Clearly the Texas government employees don’t care what they place on tags just look at all the custom Texas tags promoting private companies both for-profit and non-profit, schools, military status, religious slogans, political slogans, for-profit sports teams, et al. There are even tags for businesses in other states. Looks like anything is fair game to get a profit.

    So it becomes curious why those Texas government employees balked on a tag for the Sons of the Confederate Veterans celebrating the known and taught history of Texas?

    I would say it’s because the employees in the Texas government were pressured or coerced by a group of people to say and act a certain way. They were compelled! Which is exactly what the ruling says shouldn’t happen. That’s why it’s doubletalk. They did what the ruling says shouldn’t happen.

    How do you know they were compelled? Because without external pressure no one changes things for the worse. Actively pretending that Texas history does not exist or somehow should be rewritten is a change for the worse. It’s already happened that’s why it’s called history. Learn it, embrace it, and find a way to accept it because you sure can’t honestly change it.

    For over a hundred years the State of Texas flew a Confederate flag on public property. Not long ago a group of people began to privately and openly show hatred toward that historic flag and they had the physical, monetery, and political pressure to compel the government employees to remove it. This custom tag denial issue is just another round of the Texas government employees being compelled to act a certain way by pressure of a group of people.

    As for the stupid ginsburg comment. Yes; if there are people out there that want to go through the process of getting custom tags for their questionable organization, like “jihad for allah” I’m sure the State of Texas will accept the profit from that tag.

    Just in case you are not aware, as ginsburg clearly isn’t, across the country you can already get ‘fuck’, ‘cunt’, ‘bitch’, ‘queer’, and a variety of other vulgar hatefilled things on custom tags if you pay for it!

  29. michael reynolds says:

    @Gavrilo:

    Losers revel in defeat. It’s how they become losers. There are still people waving the Nazi flag and the Soviet flag which are morally identical to the Confederate flag.

  30. James Joyner says:

    @HarvardLaw92: You’re more up on recent precedent than I am but I seem to recall several analogous cases WRT, for example, the use of school property to host various clubs and organizations. Once the school allows it, it has very little right to deny it to some on the basis of viewpoint. And there are all manner of religious-themed plates out there, although I don’t recollect seeing denomination-specific ones.

    I don’t Texas could allow, say, Harvard plates but not Bob Jones or Liberty University plates, presuming that other thresholds (number of people committing to buy them, artwork content, etc.) are met.

  31. DrDaveT says:

    @James Joyner:

    The state shouldn’t be allowed to issue pro-Christian plates but refuse to deny pro-Muslim or pro-Atheist plates.

    Perhaps. Either way, this has nothing to do with the First Amendment.

  32. That Lib Cap guy says:

    Hey! Looks like I’m in moderation (again)

  33. C. Clavin says:

    License plates are a method of registering automobiles…not a forum for free speech.

  34. C. Clavin says:

    On the other hand; the Ten Commandments on courthouses, confederate flags on tags….what’s the difference?

  35. C. Clavin says:

    That kid that killed 9 people was into the Confederates States of America…so free speech…yeah!!!

  36. Ron Beasley says:

    @James Joyner: Sorry James and Doug, this is not a first amendment issue. The State should be able to accept or refuse any license plate it wants since it will impact the perception of the state.

  37. Hal_10000 says:

    The problem I have with the Court’s decision, as I have with a lot of debates about people being offended, is this: who decides? Who decides that a message if offensive and can be forbidden? Remember that this is Texas we’re talking about here. Can they forbid, say, the Human Rights Campaign from getting a specialized plate because some Christians find gays offensive? Can they forbid an Islamic organization from having a plate because some people might find it offensive? A pro-immigration plate? An atheist plate? It seems a lot of this debate is driven by people finding the SCV itself offensive.

    I can understand why you might just throw up your hands and say, “OK, no specialized plates”. Or why you might say, “Come one come all”. Not sure how you get to the logic of some organizations are forbidden while others are allowed because some offend your sensibilities and some don’t.

  38. stonetools says:

    @James Joyner:

    Its not a content-based restriction on free speech because the SCV can still say anything it wants, just not with state property. Its a right to free speech, not a right to have the government enable your speech.
    Are you saying that Texas should not be able to refuse if I wanted to put on a Texas license plate “Texas is a Sh!thole” or “The only good Texan is a dead Texan?”
    Come on, you know that’s absurd.
    Meanwhile the SCV folks can plaster their cars with Confederate flags all they like. That’s enough free speech for anybody.

  39. Franklin says:

    As always, I’m no legal expert, but here goes my random opinion:

    1) I dislike the phrase “government speech,” which reminds me of “corporate speech,” but it’s even worse because the 1st Amendment is about the government supposedly restricting … itself, in this case. Which blows my mind. But seriously, if the government is “speaking,” than there actually has to be at least one actual individual “speaking.” In which case, that individual gets to choose what he/she says.

    2) More importantly, the 1st Amendment is about making laws that restrict speech. It doesn’t say s**t about compelling anybody to say something. I don’t see why the government should be forced to promote any particular group.

    3) I agree with Dr. Joyner that it would be a problem if a particular religion was being promoted over others, but that’s not the case here.

    4) Specialty plates are both stupid and not going away anytime soon.

    5) But generally, I am a big free speech promoter. People should be allowed to make asshats out of themselves, so that the rest of us can identify asshats.

  40. anjin-san says:

    My sense is that the license plate would carry an implied endorsement of confederate values. That may not be the intent of the state, but that is how a lot of folks of a certain persuasion will see it.

    At any rate, this is clearly not a free speech issue, for reasons that have already been covered in this thread.

  41. DrDaveT says:

    @Hal_10000:

    I can understand why you might just throw up your hands and say, “OK, no specialized plates”.

    That’s one approach. I think there are reasonable bright lines that are intermediate between that and “anything goes”.

    For example, only specialized plates that are associated with state government activities/initiatives. I don’t see any reason why Maryland can’t have a “Save the Bay” license plate, or California a “Wildfire Prevention” license plate, or North Carolina a “Wright Brothers at Kitty Hawk” license plate. Those are very different from corporate endorsements or religious positions, and there are state-funded activities associated with them.

    In general, though, you’re right — the question of who gets to choose what is ‘reasonable’ might eventually drive us to a “nothing is obviously reasonable” position.

  42. de stijl says:

    Tribal signifiers.

    That’s really what this really comes down to.

    One tribe wants the state to acknowledge and endorse its message. And it’s a provoking message. A deliberate poke in the eye. It’s a message that we are in control. We have always been in control. You exist our solely at our whim. We own you, we used to literally own you, and you better not forget it. Act out, and you will learn that history lesson in a very personal way.

    The past is never dead. It’s not even past.

  43. dazedandconfused says:

    re: Precedents

    Would not mandating the State must print any symbol on their plates open the door for someone to force the state to issue swastika plates if somebody orders them? It’s a specious claim that not forcing the state to put such symbols on license plates opens the door for the banning of free speech. The law isn’t a purely academic exercise, it can and should be modified by experience. I think that was an Oliver Wendell Holms quote, or thereabouts.

  44. James Joyner says:

    @stonetools: @DrDaveT: @anjin-san: I think you’re viewing this through the lens of your viewpoint of the SCV rather than the case law. We have decades of 1st Amendment jurisprudence to the effect that the state can’t compel speech, whether it be requiring public school children to recite the Pledge of Allegiance or requiring Jehovah’s Witnesses to emblazon “Live Free or Die” on their automobiles as a condition of driving. Similarly, there are numerous rulings to the effect that when government opens up a forum—the public square, schools during off-duty hours, etc.—for expressive speech, it’s restrictions on said speech must be content-neutral. If the state allows affinity groups to put their names on specialty plates under the condition that, say, 5000 people agree to buy them, the state has very little right to deny that forum on the basis of content.

  45. SKI says:

    I think the majority got it right but it is a messy enough issue I wouldn’t have been surprised or upset for it going the other way.

    The only outrageous thing is Doug’s headline. How in the world does this put Freedom of Speech in any danger at all? Even in a slippery slope pathetic kind of way?

  46. James Joyner says:

    @SKI:

    How in the world does this put Freedom of Speech in any danger at all? Even in a slippery slope pathetic kind of way?

    Because it grants government a right to decide which speech is permissible in a public forum, solely on the basis of content? I’m sure some significant people find the anti-abortion message “Choose Life” offensive. Ditto “God Bless Texas.” Yet, they’re permissible speech in this forum. Signaling that one’s forefathers served on the side of the Civil War that most Texans fought in? Impermissible. That’s content, not time, place, or manner.

  47. OzarkHillbilly says:

    WHAT????? I CAN’T MAKE THE GOVERNMENT BROADCAST MY RACIST HATE SPEECH????? THIS IS THE END OF AMERICA!!!! Next thing you know they’ll be telling me I can’t practice my religion by gunning down ni**ers in church.

  48. stonetools says:

    @James Joyner:

    But license plates aren’t a forum.In a forum, you argue and debate the issues of the day. Nobody is doing that with a license plate. At best, they are asking their state whether they can use public property to express their opinion, without inviting debate.

    You want to debate the Confederacy, there are places for that. You want to just your express your opinion, you can do that with your property.

  49. gVOR08 says:

    I have a car that is great fun to drive and has a grill that looks like a huge grin. I think it’s an outrage against the 1st Amendment that the State wouldn’t allow me to spell out S**T EATING GRIN on the vanity plate and I had to sneak it through as SEGRIN. Next time I think I’ll ask for F**K GOPS AND DAGOES and ask Doug and James if their 1st Amendment absolutism stretches that far.

  50. DrDaveT says:

    @James Joyner:

    If the state allows affinity groups to put their names on specialty plates […]

    James, you have the wrong agents associated with the actions here. The state designs, produces, distributes, and owns the license plates. They do not allow individuals to modify them; they must use them as produced by the state.

    You note correctly (but irrelevantly) that the courts have held that once those plates are distributed to people, they can be construed as acts of speech by the drivers of the cars they are on. That’s a stupid ruling, but we can live with it. Thus, the state cannot compel people to use a license plate design that hurts their feelings. Fine.

    That’s not the case here. The state is not attempting to compel anyone to say anything. Quite the opposite; some people are attempting to compel the state to help them speak a specific message on a government-owned medium. If the state declines to do so, that has nothing whatever to do with “decades of 1st Amendment jurisprudence to the effect that the state can’t compel speech”, because — again — the state is not attempting to compel any speech here.

    Your other argument, about neutrality of public forum, is closer to the mark. Reasonable people can reasonably disagree about whether a license plate is like a bulletin board in a state government office, or what have you. As I said multiple times above, it might be necessary to stop issuing by-private-request specialty plate designs. But please stop confusing that with the state compelling speech.

  51. JohnMcC says:

    @gVOR08: Let me guess – an original bug-eye Sprite?

  52. DrDaveT says:

    @James Joyner:

    I think you’re viewing this through the lens of your viewpoint of the SCV

    Tell you what — I won’t question your ability to think rationally and impartially if you will do me the like courtesy. Deal?

  53. Barry says:

    @Tyrell: “When I was a child it was common to see it on bumpers as stickers or tags around here. I don’t recall anyone having a problem with it then. I still it now but not as much.”

    I’m sure that you don’t recall such things.

  54. Lenoxus says:

    First off, since I don’t think anyone else said it: I’m pleasantly surprised by Texas here! Is this the first time a former Confederate state has ever refused to endorse a Confederate symbol?

    James Joyner:

    I don’t [sic] Texas could allow, say, Harvard plates but not Bob Jones or Liberty University plates, presuming that other thresholds (number of people committing to buy them, artwork content, etc.) are met.

    If Texas did that, it would be unfair. But not everything unfair is necessarily unconstitutional. If the elected officials of Texas felt that as a general principle, you can’t permit one sort of flag on the plates and excluding others (with the Confederate flag being the main subject of this principle), they are free to make that the state policy, and thus Texas would be obligated to accept this flag. Or if they want the policy to be that all flags except Nazi ones are okay (or that only Nazi flags are okay!), they can do that too. Having the law say that plates can be for any sports team except the Houston Astros would be inane, but not unconstitutional. Like almost everyone here, I don’t see where free speech is relevant.

    Original post:

    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.

    Offensiveness is a red herring. Texas can refuse any plate for any reason, except it can’t play favorites among religions because the establishment of religion is specifically unconstitutional. The argument here (at least, the argument I favor) isn’t “Normally Texas should be compelled to approve of the plate. But the Confederacy was evil (and/or it offends the delicate sensibilities of bleeding-hearts under the inexplicable delusion that it was formed wholly out of defense of slavery). Therefore, Texas doesn’t have to approve such plates (and/or Texas should be required to refuse to make such plates, because all good liberals think offensiveness is downright unconstitutional).” Indeed the Confederacy was evil, but that’s beside the point: Texas could refuse Union flags and permit Confederate ones, and that would be legally okay too.

    Now, it’s true that Texas claims it is almost completely open to plate petitions and that offensiveness is the only criterion for refusing one:

    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.

    But at worst, Texas is guilty of being less than honest about this, or of failing to consider how unenforceable that standard might be. They still aren’t crossing a legal line, they’re just behaving like a promise-breaking politician (if we look at it in the worst light).

    This is a scenario where it might be nice if it were acceptable for a government to say “Look, we like this thing and we don’t like that thing, okay? We’re not computers that run on some perfect objective algorithm immune to any possible complaint about inconsistency.” I suppose there are areas of law like that — isn’t there something called executive discretion that permits the Obama administration to not go after states that legalize marijuana? But the public generally refuses to be okay with that, however unrealistic or ignorant this standard may be. (I have a similar pet peeve about Politician X accusing their opponents of “playing politics” with an issue, in contrast with X’s own “common sense” position.)

  55. Tyrell says:

    People are still perfectly free to put tags on the front of their cars; and flags and stickers of their choice.

  56. de stijl says:

    The image at the top of this post has bugging me for hours until I finally figured it out. It’s the classic Simpson’s bit:

    Homer: Look kids! I just got my party invitiations back from the printers.

    Lisa: [reading the invitation] “Come to Homer’s BBBQ. The extra B is for BYOBB.”

    Bart: What’s that extra B for?

    Homer: It’s a typo.

    Lisa: Dad! Can’t you have some other type of party, one where you don’t serve meat?

    Homer: All normal people love meat. If I went to a barbeque and there was no meat, I would say ‘Yo Goober! Where’s the meat?’. I’m trying to impress people here, Lisa. You don’t win friends with salad.

  57. Jenos Idanian #13 says:

    No, I think the image is a Shakespeare reference — it seems an obscure way to echo the beginning of Hamlet’s famous soliloquy.

    But these arguments about the plates seem like they’re ready-made to also apply to the public airwaves. Government licenses the usage of those airwaves to private individuals and corporations, who have use of them but don’t own them. Since the airwaves are, essentially, owned by the government, couldn’t the same argument be made that the government is then responsible for any and all messages expressed on the airwaves? And couldn’t that then be used to shut down people who say things on radio or broadcast television that express things the government doesn’t support?

  58. Lenoxus says:

    @Jenos Idanian #13: That’s an interesting point. But the government didn’t create the airwaves, and we only have the government regulate them for convenience and consistency. They ultimately belong to the people, and have no adequate substitute. The airwaves are more like elections, something the government can and should manage but should not interfere with (such as by banning a political party).

    For another thing, the government does the “work” of making the plates. If Texas permitted residents to print their own plates with 3D printers, it would be harder for the state to argue against any given design.

  59. Jenos Idanian #13 says:

    @Lenoxus: Oh, there are differences. But I worry that those differences aren’t enough. The left’s disgust at talk radio and Fox News (which isn’t technically a broadcast network, but that doesn’t necessarily mean anything) gives them an opening to take this decision and push it.

  60. censored says:

    Looks like you do your own censorship.

    You ask for opinions and then you censor them. Strange behavior indeed.