June 18, 2015

Specialty license plates are government speech, so Texas can reject the Sons of Confederate Veterans design.

There are 6 new Supreme Court cases this morning. Which one to read first? I'm going with the license plate case. The government wins in a free speech case, and the "liberal" side of the Court achieves its majority through the addition of Justice Thomas. The case is Walker v. Texas Sons of Confederate Veterans (PDF).

Justice Breyer, writing for the majority, says that "as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position," and "it is not barred by the Free Speech Clause from determining the content of what it says." If it were, "government would not work."

But are specialty license plates government speech? Texas set up a procedure that let private citizens participate in designing, then rejected the one that the Sons of Confederate Veterans wanted.

Breyer emphasizes that the point of getting a license plate — as opposed to just putting a bumper sticker on your car — is that you want to acquire and display the impression of the state's endorsement of your message. The state is expressing something by producing a license plate and itn eeds to be able to choose "how to present itself and its constituency." It can accept the "Fight Terrorism" design and reject the pro-al Qaeda plate.

For the majority, this case is like the Pleasant Grove v. Summum case where the city was allowed to accept some donated monuments for the park and reject others.

The dissenters — in an opinion written by Justice Alito — say the majority "passes off private speech as government speech." There are "more than 350" specialty plates in Texas. Do people really read them as government speech rather than the speech of the car owner?
If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Mon- day morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games — Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State — would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?
Alito distinguishes Summum. There's a history of government erecting monuments as a form of expression and no history of landowners allowing others to put up permanent monuments on their land. And there's limited space in a park. In Summum, the government had a selective process, but the Texas license-plate procedure was not selective:
The Board’s chairman, who is charged with approving designs, explained that the program’s purpose is “to encourage private plates” in order to “generate additional revenue for the state.” And most of the time, the Board “base[s] [its] decisions on rules that primarily deal with reflectivity and readability.” A Department brochure explains: “Q. Who provides the plate design? A. You do, though your design is subject to reflectivity, legibility, and design standards.”
In addition, Alito notes, Texas was charging groups $8,000 a year to have their designs on a plate:
[I]f Texas really wants to speak out in support of, say, Iowa State University (but not the University of Iowa) or “Young Lawyers” (but not old ones), why must it be paid to say things that it really wants to say?...
Clearly, Texas is in it for the money, not because it is "bursting with things" it wants to say.


Swifty Quick said...

Sounds like government CAN control the message after all, and they can still call it "free speech." Who knew?

Lyle said...

What a despicable and prejudiced ruling. We are not headed in a good direction on free speech. I thought we were strong enough to put up with ignorant speech. I guess not.

Larry J said...

Perhaps Texas should've said that all sons of Confederate Veterans can have the plates. How many of them are there? It doesn't say "grandsons" or "great grandsons", it says "sons." There can't be many true sons of Confederate veterans still alive.

mccullough said...

Too many tattoos, specialty plates, and bumper stickers.

CWJ said...

Apparently, you can buy government speech in Texas for $8,000 per annum. Not all speech mind you, but speech is definitely for sale. Sounds more like a lobbyist than a representative state government to me.

The majority worked hard to save the state from an embarrassing situation of its own making, while the dissent actually made some good points. Funny how often when push comes to shove the various arms of government tend to side with each other against the common folk.

Look, the solution has always been for government to stay out of these situations, not hope that some judge or collection of same will find the sophistry necessary to bail them out.

Alexander said...

Since 2008, I think it's safe to say "Rather be Golfing" is government policy.

Benghazi - "Rather be Golfing"
Fast and Furious - "Rather be Golfing"
ISIS - "Rather be Golfing"

And look at the corporate and banking systems, immigration, foreign policy! Again, it's hard to argue that 'supporting out-of-state competitors' isn't government policy.

Accidentally and hilariously proves the majority's case.

traditionalguy said...

Clarence Thomas voted down the racists hiding behind. Confederate Battle Flags. So he is not a Uncle Tom yet.

furious_a said...

Loser's license plate, like "Dixie" is a loser's song.

Brent said...

I am going to petition Texas for a "Sons of Gore" or "Sons of Romney" license plate; there is nothing like telling the world your ancestors were losers.

Brent said...

CWJ is right. The government made a mess. It isn't desirable to allow anything on the Texas plate - but it shouldn't be allowed to pick and chose once it opens the door. It put itself in this position. It is too bad the court bailed the state out at the cost of free speech.

The court should have just said to Texas, "if you don't like it, put a disclaimer at the bottom of every plate saying you don't endorse the contents of this message."

Left Bank of the Charles said...

Clearly Texas is not in it for the money, as the program has to be subsidized, which is why there are minimums on getting a new plate approved. Texas is in it for the vanity. That's the government purpose.

Hammond X. Gritzkofe said...

Bad decision. Root cause is bad legislation allowing State Govt to get into bumper sticker business.

Richard Dolan said...

What's interesting about the case is not the particular application of First Amendment doctrine to the odd-ball fact pattern, but instead its significance as a marker of the continuing divisions in the Court over government regulation of speech -- the bull's eye case being Citizens United. At the 2d Circuit Judicial Conference held last week, for example, Justice Ginsburg participated as she does every year. When asked to name the one case decided by the Court during her tenure that she thinks must be overruled by a future Court, she named Citizens United.

It's striking, to me anyway, how so many lefty-leaning people are comfortable with state regulation of speech in so many different contexts, this case providing yet another (not very important) one. Citizens United dealt with regulation of political speech during an election campaign -- and it's harder to get closer to the absolute center of First Amendment concern than that. Yet so many are distressed about limitations on the gov't's regulatory powers in that context, and are apoplectic that corporations enjoy First Amendment freedoms in that (or any) context. I think part of the problem is that lefties cannot imagine that speech they regard as important -- speech about the climate by the Sierra Club, say, or the speech criminalized in Abrams v. US and Dennis v. US -- could be the subject of any reasonable controversy today. In part it's also the bottomless confidence that lefties have in the beneficence of gov't regulation. But there's no doubt that what's in the background of a case like this is the continuing dispute about Citizens United. The only question is for how long it will stay only in the background. As this case suggests, Citizens United is just one vote away from being overruled.

mikee said...

I recall when NC put a motto on their license plates reading "First in Freedom" and death penalty opponents started taping over it in protest. That blocking of a government motto on plates was ruled to be political speech.

NC changed the motto on the plates to "First in Flight" and thus it remains today.

That said, as a born & Raised North Carolinian who got to Texas as soon as I could, the proliferation of vanity plates here in TX is amazing.

Of more interest to me personally, however, is that my local police have automatic plate readers that alert them to warrants, unpaid citations, and even lack of insurance, causing me to be pulled over once while driving a rental car (self-insured by the company) without any probable cause of a violation other than the computer not recognizing a rental car from its plate number.

What are the police doing with their vast new database of plate sitings (location, date, time)?

Brent said...
This comment has been removed by the author.
Brent said...

Richard, "but corporations AREN'T PEOPLE!!!"

Sorry, I had to say it. It is illegal in some cities to say Citizens United without the above intelligent and deep response. I have yet to find someone who says the above and can also explain even the basic facts of the case, let alone legal question decided.

Kidding aside, I am surprised at how the left has thrown the first amendment out the window. Especially from many of these baby boomers who fought so angrily against the government long ago. I think they believe that since their generation is mostly in power now, they can tame the beast they fought so hard against. They know they have the traditional free speech outlets already in their pocket, and therefore, have no fear of silencing the rest.

Bleach Drinkers Curing Coronavirus Together said...

Alternative headline:

Black Justice Only Conservative Who Agrees that Government Does Not Have to Endorse His Own Persecution

What is wrong with the dissenters? It would have been great to see them torture themselves and the bounds of working consciousness by approving a petitioner's request to a license plate with a burning cross on it. Or a picture of John Wilkes Booth brandishing weapons and shouting Latin slogans. But then, since when have Republicans not been sympathizers with the Confederate enemies of America who wanted to destroy this country?

Oh, that's right. Since before about 1980 or so.

Michael K said...

Of Course, the states are in it for the money !

Good God !

I had my sail number on my license plate for years. I still have the plate. Maybe I should change back even though I no longer have the boat. At least I can remember the number.

Michael K said...

"since when have Republicans not been sympathizers with the Confederate enemies of America who wanted to destroy this country? "

I think ti was 1865, asshole.

The Godfather said...

Although I'm a knee-jerk free speecher I'm also a knee-jerk federalist. On balance, I come down in this case on the side of the federal courts leaving the State of Texas alone to run it's license plate marketing program as it wants to. So long as the sons of the Confederacy or the sons of Red October can express their views on bumper stickers or lapel pins or yard signs, although not on their state-issued license plates, I think the First Amendment is alive and well.

Zach said...

But state governments aren't people!

Actually, I think this is the correct decision. It's an official license from the state of Texas, so a fair minded person would interpret any motto as either speech by the government or speech condoned by the government. And the state of Texas was a member of the Confederacy, so allowing a Confederate battle flag would certainly raise questions about whether the state was speaking.

As Citizens United pointed out, people don't lose their free speech rights because of the way they've chosen to organize themselves. I think this is a case where the State as a collective body is the one doing the speaking, so they should be able to control the message.

rcommal said...

Texas needs to charge high fees, for an obvious reason. It also needs to be able to weed out problematic notions, for another obvious reason. Whatever else one can say about Texas (a state for which I do have a certain, definite fondness), one must, if honest, recognize the clear contradictions and ponder the tolerance of its citizens for a cognitive dissonance that too many there would not put up with in any other state other than their own.

tim maguire said...

Texas has 350 specialty license plates?!? (Money grubbing jackals!) That's a pretty strong argument for Alito's side and reveals this to be yet another issue where Scalia's careful originalism is put to the service of his personal preferences.