License Plate Nonsense: Walker v. Sons of Confederate Veterans

    Today in Walker v. Sons of Confederate Veterans, the Court, 5-4, ruled that Texas could refuse to issue a specialty license plate bearing the Confederate battle flag and honoring the Sons of Confederate Veterans. The core issue was whether messages on specialty license plates are government speech or private speech of the group proposing the message and the motorists who choose to display that message.  To resolve this issue the Court used a blunt axe instead of a scalpel.  It was government speech because all Texas license plates are owned by Texas, required to be displayed on vehicles, and serve government functions such as identification. Invoking Pleasant Grove v. Summum, in which the Court held that a city’s refusal to accept a monument to be displayed in a public park was valid because monument displays in the park were a form of government speech, the Court claimed that the same principle applied here.  Never mind that Summum was grounded in the fact that permanent monuments on public property are regarded by any reasonable observer as the government’s message.  The absurdity of the majority’s position was well expressed in Justice Alito’s dissent:
        "Suppose you sat by the side of a Texas highway and studied the license plates on the vehicles passing by. You would see, in addition to the standard Texas plates, an impressive array of [more than 350 varieties of] specialty plates[: honoring] numerous colleges and universities ..., the name of a high school, a fraternity or sorority, the Masons, the Knights of Columbus, the Daughters of the American Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver. ...[Would you] really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says 'Rather Be Golfing' passed by at 8:30 am on a Monday 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? And when a car zipped by with a plate that reads 'NASCAR - 24 Jeff Gordon,' would you think that Gordon (born in California, raised in Indiana, resides in North Carolina)  is the official favorite of the State government?"
    By the majority’s reasoning Texas could issue a plate that proclaims “Notre Dame – Fighting Irish” but refuse to issue one that would say “USC Trojans.” If these messages are government speech then the official policy of Texas, in this example, is to side with Notre Dame in their long annual rivalry with Southern California.  As Alito said, this is blatant viewpoint discrimination. All that Texas is doing with its specialty plate program is raising money from motorists who want to send their own message.  
    Of course the display of the Confederate battle flag is offensive to many.  Of course a Nazi swastika coupled with the legend “Bring Back the Third Reich” is obnoxious. But the remedy is not to deny the reality that Texas had created a forum for private expression.  Unlike the “nonpublic forum” cases Texas deliberately opened its license plates to all manner of private expression – from the trivial (“I’d Rather be Golfing”) to the commercial (“Mighty Fine Burgers”) to the political (“Choose Life”) to the associational (“4-H” or “American Legion”).
To deny this reality and pretend this is all government speech is Orwellian and will in time undermine our understanding of the public forum.  
    Had the dissent prevailed, Texas was not without a remedy.  It could cancel all existing specialty plates and never issue any more or it could issue only specialty plates that contain messages not proposed by private citizens but by the government itself.  That is the case with state mottoes on license plates – New Hampshire’s “Live Free or Die,” West Virginia’s onetime slogan “Almost Heaven” or Oklahoma’s bygone message “Oklahoma is OK.” The Court got it badly wrong. 

Comments

[SteveJ]

Couldn't you claim that Alito is somewhat circular here? The government department in question does not want it's imprimatur on political messages. They would not be particularly concerned about the examples Alito gives precisely because they are benign novelty slogans.

In other words, the department used a variation of the test Alito proposes.

And what is the motivation to put a political issue, as opposed to a novelty slogan on your license plate? Is the motivation the same? Is it not the case that the politically charged group thinks it can create an aura of legitimacy with its message on property associated with the government?

Exactly what is so worrisome about using a bumper sticker as opposed to your license plate unless you want that extra legitimacy.

Government departments, with the exception of Obama's IRS, are somewhat sensitive to having their departments linked with political campaigns, proposals, and politically charged issues. Unless things have changed, you are not supposed to where campaign buttons or show endorsements for various political parties at your place of work when you work for a government department. Is Alito prepared to wipe these restrictions away as well?

[anon]

SteveJ

The Hatch Act is an entirely different issue.

Are we supposed to rely on the State of Texas to decide what is a "benign novelty slogans"? Is that the standard the "department" used? The court? Really?

Is that an analysis as a matter of constitutional law, or just musing?

[SteveJ]

Doesn't Alito aver to such a standard with his test? He runs through a list of benign novelty slogans and then asks .. Would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas?

As for your question on the reliance of a government department to decide what is a benign novelty slogan and what is not, government departments do that all the time when making judgments about the Hatch Act. Can a government employee have this or that on his desk. Is this picture acceptable in our lobby and so forth.

[AGR]

If I saw those plates I may not think that Texas was enthusiastic about the messages. I would note, however, that the state had seen it and made the judgment that the message passed a certain level of acceptability. Can you put any and every message you want on license plates in Texas? I just attended a fascinating workshop about consumer's misperceptions of government regulations-- they tend to think that products must be safe and that they are as advertised because surely they would not be allowed to present products that were problematic because "the law" -- that is to say government-- would have intervened to stop it. People do tend to think that the government is rendering judgments even when they are not.

[anon]

Here's where I think you are going wrong: "In other words, the department used a variation of the test Alito proposes."

No, it helps to read the opinion, not just a blog post, before you attack it.

"Pressed to come up with any evidence that the State has exercised “selective receptivity,” Texas (and the Court) rely primarily on sketchy information not contained in the record, ..."

"[T]he Board’s predecessor (might have) rejected a “pro-life” plate and perhaps others on the ground that they contained messages that were offensive. ... But even if this happened, it shows only that the present case may not be the only one in which the State has exercised viewpoint discrimination. Texas’s only other (also extrarecord) evidence of selectivity concerns a proposed plate that was thought to create a threat to the fair enforcement of the State’s motor vehicle laws."

"[M]ost of the time, the Board “base[d] [its] decisions on rules that primarily deal with reflectivity and readability.”

"What Texas has done by selling space on its license plates is to create what we have called a limited public forum. It has allowed state property (i.e., motor vehicle license plates) to be used by private speakers according to rules that the State prescribes. Cf. Good News Club v. Milford Central School, 533 U. S. 98, 106–107 (2001). Under the First Amendment, however, those rules cannot discriminate on the basis of viewpoint."

How did the department use a variation of the rule Alito proposed?

As for the Hatch Act, precisely the opposite is the case and the government doesn't make "judgments" about its application.

[SteveJ]

I appreciate the responses Anon.

My problem here is with the Alito paragraph, quoted in the above article, that ends with Alito himself asking: "Would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas?"

If you wish to claim that Alito wrote a paragraph tangential to the matter at hand, then you should make that claim.

Even if Alito's claim is tangential, he wrote it, and I am free to call him on it without the claim of being specious.

I think Alito asked the question because he knows why the department did what it did even if it doesn't want to say it directly. The bar for calling the Alito paragraph into question is quite low. I need only come up with 2 examples with different answers. Here they are:

Example 1:

A reasonable person from Ohio (to help with the possibility for misunderstanding, we'll make it out of state -- although I am not sure this is necessary since a fellow Texan could just as easily get the wrong idea) is walking towards his car in a parking lot. As he's walking by, he sees an out of state Texas car. He notices Texas at the top of the plate and the Confederate flag middle left. He may or may not notice Sons of Confederate soldiers at the bottom. (If he does, so what?) Is it really so off the wall for an idea to enter the back of this person's mind: "Gee whiz, I thought only South Carolina endorsed that thing."

Answer: I'm not sure that is an off-the-wall observation. I suppose a conscientious person might do a google search at some point. Then again, he may not.

Example 2:

The same reasonable person from Ohio is walking to his car an notices an out of state car from Texas. He sees Texas at the top of the plate, and a yellow block M to the middle left. (A U of Michigan grad now living in Texas.) Is it off the wall for an idea to enter the back of this person's mind that the State of Texas cheers for Michigan over Ohio State?

Answer: Yes it is. That would be absurd.

Two examples. Different answers.

The Alito paragraph appears wanting. My questions and concerns cover nothing else.

[anon]

SteveJ

Now, onto your self-described only point: "the Alito paragraph."

Without reading the opinion, we can't put that paragraph into context. The question was whether the First Amendment would apply to State of Texas speech. Alito took issue with the majority as follows:

"The Court says that all of these messages are government speech. It is essential that government be able to express its own viewpoint, the Court reminds us, because otherwise, how would it promote its programs, like recycling and vaccinations? ...

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."

You may quibble with the examples Alito chose. But the reasoning, on a constitutional level, was necessary to a logical analysis, which begins by properly differentiating government from private speech. Alito favored the latter analysis here. If you disagree, so be it, but his point was that the State of Texas created a limited public forum on its license plates.

Mercifully, you have now abandoned your argument that "the department used a variation of the test Alito proposes."

Now, you say your point is limited to "The Alito paragraph appears wanting." Ok, out of context, you disagree with Alito, and claim that viewers would interpret a license plate as an endorsement by the State of Texas of the private message thereon.

Fair enough. At least, we now know that this disagreement does not address this conclusion:

"What Texas has done by selling space on its license plates is to create what we have called a limited public forum. It has allowed state property (i.e., motor vehicle license plates) to be used by private speakers according to rules that the State prescribes. Cf. Good News Club v. Milford Central School, 533 U. S. 98, 106–107 (2001). Under the First Amendment, however, those rules cannot discriminate on the basis of viewpoint."

If you contend that the State of Texas is engaging in viewpoint discrimination now, then you must take on the rest of the analysis.

[SteveJ]

No, I had some questions and concerns limited in scope. I appreciate the additional info in your comments.