Althouse: "I mean, suppose somebody submitted a license plate to Texas that said, 'Vote Republican,' and Texas said, yes, that's fine."

March 24, 2015

"I mean, suppose somebody submitted a license plate to Texas that said, 'Vote Republican,' and Texas said, yes, that's fine."

"And next person submitted a license plate to Texas and it said 'Vote Democratic,' and Texas said, no, we're not going to approve that one. What about that?" asked Justice Kagan in yesterday's oral argument about whether Texas could reject the specialty license plate proposed by the Sons of Confederate Veterans. (We talked about the case yesterday here.)

The lawyer for Texas said — lamely — "Yeah, Justice Kagan, I don't think our position would necessarily allow that...." And she was all "But why... why wouldn't it allow that?"

Here's the oral argument transcript (PDF). The lawyer (Scott A. Keller) had no good answer, as far as I can tell.

51 comments:

David said...: From UT Law Magazine:

"Scott Keller, ’07, is the latest Law School alumnus to clerk on the Supreme Court, under Justice Anthony Kennedy."; 3/24/15, 5:23 PM
averagejoe said...: Good question, Kagan. I wonder how the wise latina would answer. Probably moving to ban "vote republican" by the same reasoning she would ban the confederate flag- because some people get their feelings hurt when they see it. "Vote democrat" is okay though, cause they're for the little guy...; 3/24/15, 5:35 PM
Dale said...: Please help Professor: What is Kagan's point?

Is she asking so that it is obvious that viewpoint discrimination should not be at the DMV?

Or is she trying to say that the DMV should be able to do whatever it wants?; 3/24/15, 5:36 PM
Gahrie said...: That's the point. Either the process is content neutral, or it discriminates. The best policy would be no specialty plates, but there is money involved....; 3/24/15, 5:36 PM
Michael K said...: I still have my specialty plates with my sail number on them. Maybe I'll resurrect them. No boat but I still have the plates.; 3/24/15, 5:49 PM
traditionalguy said...: This comment has been removed by the author.; 3/24/15, 5:49 PM
traditionalguy said...: And what if we put Kagan's face on the twenty dollar bill, complete with red ink? The Secret Service would want their cut or it would be called a counterfeit. Everybody knows only white men are Presidential... except there is a Redskin on the nickel.

The State honors whomever it honors. Pontus Pilate said it all saying to the complainers, " What I have written I have written."; 3/24/15, 5:50 PM
Bay Area Guy said...: Absolutely trivial issue, trivial case.

Who the %#@$ cares what's on a Texas license plate?; 3/24/15, 6:05 PM
n.n said...: This comment has been removed by the author.; 3/24/15, 6:17 PM
Simon said...: Maybe Texas should just say that you can have whatever you like on the plate, subject to the caveat that if Chuck Norris disapproves, he gets one free shot at you?; 3/24/15, 6:20 PM
Simon said...: Unknown said...
"Who the %#@$ cares what's on a Texas license plate?"

Well, Texas' claim is that license places are government speech, that is, that the government of Texas speaks through the plate. Perhaps you might not regard it as a trivial question were you a black Texan being told by the state of Texas that it stands with those who would have kept you enslaved?; 3/24/15, 6:29 PM
n.n said...: Suppose someone wanted to exclude a class of orientations because some psychiatrists are pro-choice and oppose principled normalization, would that be considered equality?

Suppose someone wanted to selectively liquidate assets because they were underperforming, unwanted, or otherwise a burden to a woman's lifestyle, would it become a human right to commit premeditated murder without capricious cause and without due process?

Suppose the office of diversity wants to selectively exclude color, gender, orientation, height, ethnicity, etc., would the federal government follow their opportunistic practices of discretionary prosecution?

Suppose the nation was invaded by an alien army, they reproduced, would their "naturally born" children be legally entitled to control the jurisdiction as a matter of constitutional right?

Suppose the federal government implemented liberal fiscal policies that devalue capital and labor by trillions of dollars annually, would the officials be indicated for conspiracy to defraud Americans?

So many questions that arise from a pro-choice religion. So few people in authority to ask them.; 3/24/15, 6:32 PM
Titus said...: Specialized license plates are so tacky.; 3/24/15, 6:37 PM
PB said...: Either you let anything be put on places or you put nothing. I say nothing. Take one more funding sources away from the states.; 3/24/15, 6:38 PM
I Have Misplaced My Pants said...: Take one more funding sources away from the states.

I love these funding sources that are voluntary. Better than than involuntary ones.; 3/24/15, 6:41 PM
I Have Misplaced My Pants said...: Also, the sponsoring organization gets a cut, unless I'm mistaken.; 3/24/15, 6:42 PM
AllenS said...: A specialty license plate should say only one thing: Made in Prison.; 3/24/15, 6:46 PM
Titus said...: Specialized license plates are so tacky.; 3/24/15, 6:46 PM
Titus said...: Do you think Kagen and the wise latino after compared curtains?; 3/24/15, 6:47 PM
The Godfather said...: A Confederate flag, a Soviet flag, an al Queda flag, who cares?

Right?; 3/24/15, 7:09 PM
MountainMan said...: This case is just ridiculous. When it first popped up on this blog when the Court agreed to hear the case I provided some background, at least from here in TN, how these plates come about. It is a lot more involved than most of you realize; there is a process for it and it takes a lot of work.

1. First, you organization has to be a legitimate non-profit corporation that is registered with the TN Dept of State. This means you have to meet substantial legal requirements, such as have by-laws, which state the purposes of the organization, officers, membership requirements, annual meetings, etc.
2. You have to find members of the state house and senate to sponsor you bill.
3. The bill will require a significant number of pre-sales to be met by a due date or the proposed plate will die.
4. The organization splits the additional revenue with the TN Cultural Commission, which gets all the state's revenue.
5. Some plates require that you show membership in the organization in order to obtain one.

The SCV is an old organization, it's been around since 1894. It is not a racist, slave supporting, or anti-government organization. It started out, like is predecessor, the United Confederate Veterans, helping disabled vets, their widows and orphans, and providing grave markers and battlefield monuments. Today it still helps with the markers and monuments and is also a genealogical and historical organization. The emblem on the plate is its logo, when embeds the battle flag of the Army of N. VA. That has also been its logo since 1894. I mean, since it is the Sons of CONFEDERATE VETERANS what should its logo embody if not the most recognized symbol of the Confederacy? It is not a symbol that was just made up to get stuck on the license plate to make a statement or be shoved in people's faces. Funny, but for these 120 years most people have not had a problem with it. If it has met all the requirements in TX - as it did in TN quite some time ago, without any controversy - why is it not entitled to have a plate just like all the other charitable organizations that have qualified, many of which have not been around as long or done as much work for their communities as they have? If you are so traumatized by the sight of a tiny Confederate flag on a license plate perhaps you need to retreat to one of the "safe places" that all the PC universities are trying to provide. Or, better yet, grow up.; 3/24/15, 7:10 PM
Big Mike said...: A surprisingly good question by Kagan, who until now didn't impress me as being the sharpest tack in the bulletin board.; 3/24/15, 7:33 PM
CWJ said...: I can only repeat yesterday's comment. Specialty plates are a wonderful example of government losing sight of serving the polity's needs, and trying to satisfy its wants.; 3/24/15, 8:21 PM
Jason said...: Perhaps you might not regard it as a trivial question were you a black Texan being told by the state of Texas that it stands with those who would have kept you enslaved?

DEMOCRATS!!!

(Do I win a prize?); 3/24/15, 8:37 PM
David said...: Big Mike said...
A surprisingly good question by Kagan, who until now didn't impress me as being the sharpest tack in the bulletin board.

It's a completely obvious question, for which Keller should have been prepared.

The guy was a U.S. Supreme Court clerk, for crying out loud. Total fail.; 3/24/15, 8:38 PM
Jason said...: Give them plate.

Give everyone plate.; 3/24/15, 8:40 PM
MadisonMan said...: I find myself in agreement with the CJ's words.; 3/24/15, 8:58 PM
MadisonMan said...: ...and I like the index of words used that is at the end of the transcription!; 3/24/15, 9:07 PM
SteveR said...: Its an issue because the states want to make money by issuing the specialty plates. Its a waste. Good job by the government.; 3/24/15, 9:20 PM
gadfly said...: Gosh, do you think that our justice from HLS doesn't know that all those letters in her question don't fit - even on a Texas plate where everything is bigger.

Of course, our UT grad didn't know know how to tell her that that without sounding stupid.

But "Vote GOP" might work. On the other hand,"Vote Ass" would be offensive.; 3/24/15, 9:27 PM
Static Ping said...: I dunno. When the dialogue sounds like something out of Matlock is that a good or bad sign?; 3/24/15, 10:19 PM
Ann Althouse said...: @gadfly A specialty plate is not the same thing as a vanity plate.; 3/24/15, 10:51 PM
Jason said...: Note: According to the transcript, the State of Texas refused to approve a pro-life plate.

Holy Wendy Davis in a Diaper.; 3/25/15, 12:43 AM
Jason said...: Note: Texas has a "Doctor Pepper" plate. Just saying.; 3/25/15, 12:50 AM
Fen said...: Dr Pepper was invented in Waco, Texas.; 3/25/15, 12:54 AM
Left Bank of the Charles said...: I think it's pretty clear from reading the oral argument that the Supreme Court is not going to issue a ruling saying that Texas either has to eliminate the speciality plate program or allow the ISIS flag and the n-word.

As to the Kagan question, I would suggest that a state could create a speciality plate that says Vote but deny one that says Don't Vote.; 3/25/15, 1:42 AM
richardsson said...: From everything I've read, I'm sure Abraham Lincoln would not have begrudged these people the money to maintain their cemeteries. Nor would my ancestors, even though those who fought that war were all on the other side. Many who fought on both sides were conscripts who suffered terribly. Recently we have been bedeviled by people picking at scabs from sores they never had and blaming other people who had nothing to do with it. They are the ones who need to shut up and go away.

As for vanity or message license plates, I wouldn't have one on my car and would not be troubled if the court said "One and all or none at all."; 3/25/15, 3:05 AM
CStanley said...: How is her question different than the one often posed by opponents of SSM rights- "If the state approves applications of marriage between two same sex partners, than on what basis will it reject applications between three or more people?" (Or insert other possibilities such as incestuous petitioners.)

If hers is a fair question, than in other cases too the burden should be on the proponents of controversial change to show that there is a backstop against the slippery slope.; 3/25/15, 5:04 AM
Ignorance is Bliss said...: Left Bank of the Charles said...

As to the Kagan question, I would suggest that a state could create a speciality plate that says Vote but deny one that says Don't Vote.

I think that the state could create all sorts of specialty plates for causes and institutions that the state already has authority to support: universities, state parks, voting, etc.

Much of the problem here stems from the fact that the state set up a process for outside groups to request that their own message be printed on the plates. Once the state does that it has created a limited public forum. Because it is a limited public forum the state can only impose restrictions on time/place/manner. In the case of license plates the time is always and the place is the back of your car. Manner could place limits on size, color scheme, prohibit profanity ( or all text if they wanted. )

What they can't restrict is the message.; 3/25/15, 7:34 AM
MaxedOutMama said...: Viewpoint neutrality has some limitations. For example, one of these "public displays at Christmas time" things - what would happen if someone wanted to put up a porn movie running in a loop to celebrate Saturnalia, or some such? It would be banned under public obscenity grounds.

Texas DMV didn't want to provide this license plate because it was deeply offensive to a substantial minority of their citizens. That's the only possible answer.

Since it is the only possible answer, and since I've seen people throw fits over "Choose Life" license plates in public forums, perhaps states may have to rethink. It's hard for justices to draw the line, and they certainly don't want to have to hear endless cases over license plates.

This reminds me of the "decorated snow-plows issue". When you set up a public forum you create these issues - you always will eventually have someone who pushes it to the point at which someone is going to get offended. Yet if the government is allowing some speech and disallowing other speech (normally legal), then it is not really a public forum.; 3/25/15, 7:34 AM
Shanna said...: Note: According to the transcript, the State of Texas refused to approve a pro-life plate.

Interesting, Jason. We have those here. I was going to say maybe they have stronger standards but then I saw your post about the dr pepper plates.

The vast majority of our plates are either colleges, game and fish or various veterans/police/fire groups.; 3/25/15, 8:35 AM
Mick said...: The purpose of the vanity licence plate is ultimately to raise money for the state. that money that the state accepts is "free speech". Therefore no group who follows the rules for the state to adopt a vanity plate can be turned away.; 3/25/15, 8:49 AM
James Pawlak said...: Live Free---Kill Tyrants; 3/25/15, 9:38 AM
Jason said...: Texas has plates for the University of Michigan and Georgia State University.

Does this mean the Government of Texas is endorsing these schools?

If I were a Longhorn alumni I'd be pissed.; 3/25/15, 11:01 AM
Jason said...: Texas has a plate commemorating the Buffalo Soldiers: Black men who fought in the Indian Wars.

This is an outrage to Native Americans.; 3/25/15, 11:02 AM
Jason said...: Texas has a plate for the Girl Scouts.

Considering their close ties with Planned Parenthood, I'm deeply offended by this.

What? The Girl Scouts don't perform abortions?

The Sons of Confederate Veterans don't own slaves and has never been in rebellion against the United States.; 3/25/15, 11:04 AM
richard mcenroe said...: If offensive speech is protected speech, the state has no case. Unless their want to claim the public streets as their workplace and argue "hostile workplace environment" maybe...; 3/25/15, 2:44 PM
richard mcenroe said...: Unknown, there is limit on the size or scope of the progressive desire to seize power. And the more things you control, even the little ones, the easier it becomes to seize control over other, larger ones. Look at the FCC arbitrarily claiming jurisdiction over the internet.

The totalitarian impulse is the totalitarian impulse writ large or small.; 3/25/15, 2:46 PM
richard mcenroe said...: If the state can claim jurisdiction over custom license plates, why can it not claim jurisdiction over bumper stickers? After all, are they not affixed to conveyances licensed and authorized by the state to use the public roads?; 3/25/15, 2:48 PM
richard mcenroe said...: This comment has been removed by the author.; 3/25/15, 2:50 PM
richard mcenroe said...: Texas DMV didn't want to provide this license plate because it was deeply offensive to a substantial minority of their XXXcitizensXXX civil servants... FIFY; 3/25/15, 2:51 PM