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Walker, Texas Lawsuit

scvplateSix cases today from the Supreme Court, leaving eleven still on the docket. I’m only going to digest one of them for you all today because of my own time pressures: Walker v. Texas Division, Sons of Confederate Veterans. I’ll attempt to digest the other free speech case, Reed v. Town of Gilbert, tonight or tomorrow morning, so stay tuned if that one excites you more than the license plate sporting the suspicious-looking logo illustrated at the top left of this post.

The issue in Walker involves the license plate design that appears to the left, or a close variant thereof. If you click on the image to enlarge it, you’ll see that the octagonal logo on the left side of the plate centers around a design made up of a square version of the Confederate States of America’s naval jack and late-war battle flag, with the words “Sons of Confederate Veterans 1896” surrounding the flag logo, encased in a bronze or golden octagon reminiscent of a military medal.

The State of Texas does not want to print or issue these license plates. Today, the Supreme Court said, in a 5-4 vote with a rather quirky alignment of the Justices, that Texas doesn’t have to. Whether you think this means the “good guys” won or not in this case, the implications of the holding are a bit unsettling.

 

The Litigants and the License Plate

The Sons of Confederate Veterans (SCV) is a fraternal organization, founded in 1896 in Richmond Virginia, to follow in the footsteps of a similar organization made of the veterans themselves. Its avowed purposes are “[t]o encourage the preservation of history, perpetuate the hallowed memories of brave men, to assist in the observance of Memorial Day, and to perpetuate the record of the services of every Southern Soldier,” but ?not to create or foster, in any manner, any feeling against the North, but to hand down to posterity the story of the glory of the men who wore the gray.?*

John Walker III is the Chairman of the Department of Motor Vehicles Board, which issues license plates to vehicles licensed to regularly operate within the State of Texas. Like many states, Texas offers registrants the opportunity to pay extra money for specialty license plates, and the extra money is diverted partially to charities designated by the state and partially to fund state agency operations.

In its brief, SCV points out that the State of Texas seems not to be hugely shy about its Confederate heritage. A state holiday honors “Confederate Heroes Day,” consolidating celebrations of Robert E. Lee’s and Jefferson Davis’ birthdays. The Texas Capital has three monuments to Confederate soldiers, replica Confederate money and other souvenirs commemorating Texas’ time in the Confederacy is available for purchase at state-run stores, state buildings are named for Confederate leaders, and there is a marker embedded in the floor of the Capital building’s rotunda commemorating Texas’ membership in the Confederacy.

In 2009, the Texas chapter of SCV designed the plate at issue here. Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia all have similar plates with the SCV octagon logo. Maryland, North Carolina, and Virginia only began allowing the plates after the SCV successfully sued those states to issue the plates. Arkansas and Florida, both former Confederate states, do not presently offer SCV plates. SCV won a similar lawsuit against the state of Florida, but that state’s Legislature has been able to drag its feet on issuing the plate. No similar barrier exists in Texas, where the Legislature is not tasked with approving each individual plate design. So you can imagine why the SCV was confident as it headed into battle with the government of Texas.

In Texas, some plates are directly authorized by the state legislature. The Texas DMV also has been delegated authority to design plates, either on its own initiative or in response to an application from a nonprofit organization. And a private vendor designs specialty plates to be sold for profit. But, all plates must be approved by the Board of the Texas DMV. Petitioners’ brief, 4-5.

So, the Board of the DMV held a public hearing on the issue. It got mostly opposition from the general public and many politicians. Its members voted, 4-4, with one member absent, on the plates. Then it took additional testimony; the Governor and the leader of the Republican Party in the legislature politically signaled their opposition to the plate, and at a second meeting to reconsider, voted unanimously against issuance of the SCV plate. SCV sued, and initially lost at the district court level, on the grounds that the Board’s decision was rational and not based on discrimination amongst viewpoints. On appeal, a divided panel of the Fifth Circuit Court of Appeals reversed, finding that the license plates constituted private speech, not speech by the government, and that excluding the SCV plate was, contrary to the District Court’s holding, based upon the state’s hostility to the views expressed in the plate.

 

Contradictory Precedent

When I first saw the case on SCOTUS’ docket, I immediately thought of a case from 2007 authored by Justice Samuel Alito named Pleasant Grove City v. Summum, 555 U.S. 460. In Pleasant Grove, practitioners of a new age religion sought to erect, at their own expense, a pyramid-shaped monument containing their religion’s teachings (the “Seven Aphorisms”) in a public park in the city of Pleasant Grove, Utah. They pointed out that the city had permitted Christian churches to do the same, including the erection of a statue depicting the Ten Commandments. They also pointed out that the park was very likely a “traditional public forum” in which the government could not discriminate between different points of view expressed as part of the free speech to be exchanged there. But Justice Alito found that permitting the erection of monuments in such a public space was speech by the government itself, and the government could freely pick and choose, at its own discretion, what speech it would or would not engage in.

Open and shut, right? If a permit for building a monument in a public park is governmental speech, over which the government has plenary discretion, then obviously a license plate — bearing the state’s name, printed at the state’s behest, required of the state by all vehicle owners within the state, and sold through a state’s governmental corpus — must surely be governmental speech, and Texas can print or not print whatever plates it damn well pleases, thank y’all very much!

But, that doesn’t consider the seemingly even more on point case of Wooley v. Maynard (1977) 430 U.S. 705. George Maynard, a Jehovah’s Witness who believed he was forbidden by his religion from announcing his willingness to give his life for the state, objected to the content of New Hampshire’s state motto, “Live Free or Die.” By state law, the phrase appeared on all license plates issued by New Hampshire. Maynard wanted to be able to use black electrician’s tape to block off the motto, and the state of New Hampshire objected to this overt shirking of its fiercely libertarian words and indicated that this would constitute an infraction and Maynard would be liable for a ticket if he did it. So Maynard sued… and won. The Supreme Court held that New Hampshire could not compel Mr. Maynard to use his own car “as a ‘mobile billboard’ for the State’s ideological message.”

It’s perhaps worth noting that a generally conservative Justice, Samuel Alito, wrote the majority opinion in Summum, and the Justice then thought the most conservative of his Brethren, William Rehnquist, wrote the dissent in Wooley. So this suggests that conservative jurists tend to view the “government speech” doctrine expansively, and more liberal jurists would tend to view the license plate on a private car as private speech and therefore beyond governmental regulation.

But here, the speech is likely to offend a more liberal jurist just a bit faster than it would a conservative one (although I do note that the political opposition to the SCV was thoroughly bipartisan), and the wheel of history gets this permutation of facts served up with a Court that is very closely divided ideologically. And of course, there does seem to be two prominent Supreme Court precedents at odds with one another.

This case, in other words, is a spicy meat-ball for Court watchers and Con Law geeks like me.

 

The SCV Goes For Broke

Even more interesting, SCV’s brief describes its vision of the dispute:

The specialty plates at issue here are either private speech or government speech. This is a matter of first impression in this Court. If they are private speech, the DMVB cannot discriminate based on viewpoint, and offensiveness is an impermissible standard. If they are government speech, the government is free to say what ever it wants, subject to the Establishment Clause, but is not constrained by the Free Speech Clause. Respondents’ Brief, page 12.

That, my friends, is an all-or-nothing stake: if the Court were to take up SCV on that framing of the case, then a decision that the state itself is engaged in speech through the license plate will mean curtains for the SCV having a plate of its own. It seems like a shoot-from-the-hip sort of litigation tactic to put, right there in your own brief, the single finding that a court needs to make in order for you to lose.

But after spending a whole lot of time and energy citing to the record on appeal about how much Texas seems to like celebrating its Confederate history to underline what an arbitrary aberration this license plate thing is, SCV gets to the core of its argument — a private individual has to choose to buy a specialty plate; they pay extra fees for the specialty plate. No one is going to do that unless they want to make the statement that the plate makes, whether that statement be “Choose Life,” “Keep Texas Beautiful,” or “Special Olympics Texas.” Consequently, display of a specialty plate, notwithstanding the fact that some kind of plate is mandated by the state, is individual speech and not state speech. When you go out of your way to display something like that, it’s something you’re saying, not something the state is saying.

If you buy that argument — and in my opinion, it’s a substantial argument — then the license plate really is private speech, and the all-or-nothing framing of the legal issue by SCV winds up looking like a pretty good gamble. They’re basically gambling that Wooley is still good law. About all that’s going against it is that Texas disapproved of this message for its own reasons, and if the plate is even partially state speech, then Texas has discretion and doesn’t have to tell anyone why it doesn’t want to say that thing, and if you want to advertise your sympathies for the SCV then you can buy a bumper sticker.

 

The Government Speech Doctrine Wins Out

But Justice Stephen Breyer, writing for the Court, ruled to reverse the Fifth Circuit. Texas gets to to choose, because Texas, not the SCV, is the entity that issues the license plate. SCV’s go-for-broke strategy, for all of its being a good gamble backed up by a string of relatively recent successes, failed. In essence, Breyer says that Summum is basically the rule here:

  • While the government does not have an absolutely free hand when it engages in conduct that includes speech, it is free to promote its own policies and the viewpoints it favors. The principal check on what the government says is political, not legal. Slip op. at 5-6.
  • Even when the government accepts private assistance towards making something that becomes public, it is the government that is speaking, not the private party assisting the government (for instance, by donating a monument, or submitting a license plate design proposal). Slip op. at 7-9.
  • The “market” for specialty license plates is not a “traditional public forum” in which the government must tolerate many diverse viewpoints and content in speech, even that of which it disapproves. Slip op. at 13.

Therefore, just as Texas cannot require SCV to convey “the State’s ideological message,” SCV equally cannot force Texas to include a SCV’s pro-Confederate message on Texas’s license plates.” Syllabus, slip op. at 3 and 17-18. This conclusion has the rhetorical advantage of symmetry, the veneer of equality and balance as between citizen and state.

But is symmetry and balance, for its own sake, either justice or the best application of the Constitution given these facts?

 

A Substantial Dissent

The dissent, by Justice Alito, engages in some rather creative play with the use of the second person:

The Court holds that all the privately created messages on the many specialty plates issued by the State of Texas convey a government message rather than the message of the motorist displaying the plate. Can this possibly be correct?

Here is a test. 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 specialty plates. (There are now more than 350 varieties.) You would likely observe plates that honor numerous colleges and universities. You might see plates bearing 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.

As you sat there watching these plates speed by, 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? Dissent op. at 1-2.

One must concede that Justice Alito has a point, albeit one made with an informal, decidedly non-scholastic voice. (Nor would it have been difficult to make exactly the same point using more succinct, formal language: “A reasonable, ordinary person observing the diversity of messages on the various specialty plates would not conclude that the state of Texas was delivering a message but rather would attribute those messages to the drivers or owners of the vehicles bearing the diverse license plates.”)

Alito then, as intellectually he must, offers his manner of distinguishing the governmental speech in the Summum case (recall that he wrote the majority opinion in Summum) from the SCV license plate: monuments are traditionally created by the government as a public declaration of some sort; license plates have no such history nor any such hold on the common imagination. Monuments are by their nature permanent, stationary, and occupy governmental real estate — not so for license plates, which are subject to change substantially at the discretion of the vehicle registrant, inherently mobile, and placed on private property. And because monuments are on public land, and there is only so much public land to go around, the government must of necessity choose what goes there, but the amount of available space for anyone to make statements on license plates is determined by the number of private registrants, who under the prevailing state law are the ones who get to determine which of the available plates are used. Dissent op. at 9, 12-14.

Justice Alito concludes his dissent by acknowledging that the SCV logo will indeed be controversial, but noting that other Texas plates, particularly the “Choose Life” plate, might also be the subject of controversy and strong opinions — he indicates that the state of New York rejected a plate with a similar message precisely because of the controversy inherent in the message. Then he publishes six pages of images of the various and diverse specialty plates that the state will issue.

 

How I Would Have Ruled

I suppose it’s pretty obvious by now that I think Justice Alito’s reasoning is stronger than Justice Breyer’s in this case. I’d have voted in favor of SCV.

Seems to me that the license plates represent a hybrid of public and private speech. The only public speech that a license plate makes to me is “This is a vehicle registered in the state of Texas.” From there, the elective nature of the specialty plate is something that is pretty clearly the choice of the registrant, not the choice of the state. It’s difficult to conclude that the State of Texas did anything other than pick and choose amongst messages based on the viewpoint of those messages. And as much as I might disapprove of a pro-Confederate message, if there is a substantial element of private speech involved, and no one will be immediately harmed by it, the state ought to get out of the way and let individual citizens do what they want, however objectionable the rest of us find it.

So does that mean the state has to allow Ku Klux Klan or Nazi plates? Yeah, probably. Hopefully, it’s obvious that doesn’t mean I’d like it if someone demanded such a plate — but if the state is going to let anyone submit design applications and then prove that “X” number of people would buy a plate like that, then it needs to apply those criteria uniformly, objectively, and non-arbitrarily. Using the political process to judge the artistic merit of a plate design is inherently arbitrary. Opening up this process to public input means, inherently, the public should get to do what it wants with it even if the government isn’t happy about it.

So while I might have thrown in some dicta expressing reservations about the content of a pro-Confederacy plate, it’s simply not for a judge or an appointed official to opine about whether private speech is desirable or not. When a decision seems close, like this one based of the hybrid nature of the speech, the general rule should be to opt for the rule that increases individual freedom. SCV may not have been the most sympathetic of speakers in whose favor such a decision could be rendered, but popular, pleasant speech is not what the First Amendment is there to protect.

 

A Tailplate Thought about Clarence Thomas

And here’s an interesting tidbit for Court watchers: Justice Clarence Thomas sided with the majority in this case. It’s pretty unusual for Justice Thomas to side with the traditionally liberal faction of Justices Breyer, Ginsburg, Sotomayor, and Kagan unless Thomas’ closest ideological Brother, Antonin Scalia, also joins. But Thomas and Scalia split in this case. Thomas ruled in favor of the state and against the private actor claiming an individual right of free speech. Why?

Well, one explanation would have been that Justice Thomas does not believe that the First Amendment applies to states at all. By explicitly referencing “Congress” as the organ of government whose powers are restricted, Thomas interprets that to not mean “the President” or as applicable here, “a state.” So he might have thought that the question of whether the state has political discretion to discriminate on the basis of viewpoint was strictly a question of Texas law — and it is not for the Supreme Court of the United States, but rather the Supreme Court of Texas, to make the final determination of how to apply the Texas Constitution’s guarantees of free speech (Tex. Const. Art. 1 § 8) apply to the facts of this case.

But Justice Thomas did not take the time or effort to issue even a one-page opinion articulating this reasoning (which he could easily and consistently with his prior jurisprudence have done). Instead, without any explanation at all, he joined the majority’s decision resolving the matter by way of the government speech doctrine. Because of that, it’s a majority opinion that changes the law, not a plurality decision that simply renders a judgment. The Summum “government speech” doctrine is stronger today than it was yesterday: if the government is speaking at all, the government gets to decide what is said, for its own arbitrary reasons, subject only to the political and often very indirect control of democracy.

Sons of Confederate Veterans, know that I weep not for your censored license plate. I do, however, furrow my brow in concern about the broad sweep of the discretion of unelected bureaucrats trumping private speech that this case represents.

 

* I will leave for the Reader to form her own opinion about the normative worth of such an organization. The Reader may color me “skeptical” on that point, although whether I like or dislike the SCV, approve or disapprove of its message, is quite irrelevant to my evaluation of this case.

 

Image credits: originally from Texas Department of Motor Vehicles, by way of Los Angeles Times and Associated Press, official U.S. Supreme Court photographs. Note that the image also appears in the appendix of the Supreme Court’s majority opinion published today.

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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57 thoughts on “Walker, Texas Lawsuit

  1. Two comments:

    1. As always with these posts, Burt, this was fantastic. Thanks for writing it.

    2. From a more meta view than the court was able to comment, this is why I hate it when states do things like this. In Oregon, for example, we have similar license plate issues. We also have a line on our state tax form that allows us to get a tax credit of X dollars if we want the state to pass long those dollars to one of a few pre-approved charities. (Or at least we used to. For the past decade or more we’ve been hiring an accountant to do our taxes and to be honest I haven’t seen any part of an Oregon income tax form other than the place I sign my name siren the 90s. So maybe it’s gone.)

    The flawed reasoning for this is always that somehow because a corporation is non-profit that you can avoid getting into messy political battles of who the state should and shouldn’t give special benefit to based on their non-profit status. It always starts out well for a year or two, but inevitably some group that supports something controversial reasonably thinks, “We should be able to do this too,” and then everything gets ugly.

    Texas’s best bet would be to just issue license plates and get out to the business of using their department of transportation to do PR for private organizations.

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  2. Couple questions:

    Do you think that a ruling for SCV would have resulted in a free-for-all that would eventually “break” the specialty license plate business? That rather than issue plates for beyond-the-pale causes, they would simply scrap the whole concept of specialty plates?

    Do you think the states that had previously approved SCV plates will move to revoke them (and / or perhaps other specialty plates)? It would obviously be difficult for some states, like South Carolina, to make the case that the confederate battle flag is offensive, but other states might have a case.

    My view as a layperson is *similar* to yours in that the plates are a public-private hybrid. However, while I would not assume that the State of Texas endorses each viewpoint, I would assume that the State of Texas does not object to the message being conveyed. Which means that seemingly contradictory plates like U-T and Notre Dame are not really contradictory- Texas doesn’t really care about university affiliation, and has no *objections* to supporting Notre Dame, which is not the same thing as endorsing it.

    I can therefore understand a decision by Texas not to endorse (or rather to affirmatively “object” to) treason-in-defense-of-slavery via a confederate battle flag. However, as the SCV pointed out, Texas undercut that argument by its other endorsements of the confederacy. Would it have been possible that both SCV and Texas could have “won” this case if the ruling was that Texas was forbidden from selective discrimination (if Texas is in favor of CSA imagery in some cases, it must be in favor in all cases) but allowed to discriminate against certain viewpoints (no swastikas on anything)?

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    • “However, while I would not assume that the State of Texas endorses each viewpoint, I would assume that the State of Texas does not object to the message being conveyed. ”

      IANAL, but I sincerely disagree. I simply see it as the state saying, “You have a right to put this statement on your car via a mechanism that we allow other people to utilize to put their own messages on their cars.”

      Either let anyone put whatever they want or everyone gets the standard plate.

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      • It’s not quite that binary. You could allow by category. Any government entity (cities, school districts, etc), accredited University, etc, without a free-for-all. Where states get in trouble is when they allow outside groups without tight parameters on which kind.

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        • Yes, but you’d still need to justify why one category is privileged over another. And how you determine membership in a category. I mean, I guess allowing smaller entities of government could be done (e.g., you can have your home town or county acknowledged), but allow universities means allowing religious institutions which means allowing potentially very offensive schools…

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  3. This is a case where both sides have good points. I agree that Justice Alito’s argument is the stronger one and things could get harry for other political issues. However, considering America’s history with race and the Civil War, I can really see why states would be really reluctant to issue Confederate license plates.

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  4. On reading this (and I agree with it’s fantastic) what I start to wonder is what happens if A) SCV prevails, and a license plate is seen as solely private speech, and B) some people decide they want a license plate with that image that is meant to evoke Calvin (of Calvin and Hobbes) taking a piss. I’ve seen this as a bumper sticker, (or really as a window sticker). Could the State of Texas decline this? I would certainly hope that they could and would. And it might result in a very different split among the justices.

    Ok, well, obviously with the peeing Calvin, there’s a trademark infringement. But somebody could find a way around that, I’m sure. I just give it as an example of the sorts of things that people put on their cars.

    Or consider, what if someone wanted to make a Truck Nutz license plate. Should the law require that the State of Texas (or California) allow that? And would Justice Alito want to sign his name to an opinion saying that the law should do that?

    (Ref: https://triviahappy.com/articles/the-tasteless-history-of-the-peeing-calvin-decal)

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  5. Several questions about “what happens if SCV had won?” which seem to be asking, “what if states really did have to print all sorts of obnoxious license plates?” I’d predict that a state would make the political decision to a) stop the specialty plate thing altogether as more trouble than it’s worth, or b) maintain artistic control over the content of the plates entirely to itself and not offer the opportunity to the general public to offer its ideas.

    With that said, even without making those choices, categories of expression that are already not protected would probably remain so — Miller v. California would still be in effect, and so a state could likely censor a particular plate as “obscene” as with ‘s “truck nutz” plate hypo.

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  6. Let me also add that this is a great post and thank you for these writeups.

    What this readily confirms for me is that the states should not be making any custom plates. Period. Either is open to all, or closed to all. Otherwise you are going to end up with confederate plates and piss christ plates. States should never pick and choose like that.

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  7. Am I the only person here to thinks the government shouldn’t be issuing specialty license plates at all, or at least only for their own stuff? (Like supporting parks and something.)

    Seriously, I just read an anti-LGBT letter in my local paper that, in addition to the stupid normal arguments about Biblical marriage, made the same off-handed suggestion that the government should get out of the marriage business that we all know and love.

    While people might know how I feel about that suggestion (It’s a giant cop-out because the government isn’t going to do that.), there probably are things the government *should* just stay away from as general principles unless there’s a damn good reason otherwise.

    And printing *official government things* with specific, government-defined and user-selected messages on them is probably one of them. I can’t even imagine why anyone thought that was a good idea.

    If people want to put a message on their car, that’s what bumper stickers are for.

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    • “(It’s a giant cop-out because the government isn’t going to do that.)”

      It’s a perfectly reasonable position to take in an “If I were God” bull session over beer. It’s a cop-out for the reason you give when someone claims to be libertarian and pretends that taking this position, but not actually supporting gay marriage in the real world, maintains his libertarian cred. I have seen this pretty often. It supports the suspicion that a “libertarian” is a Republican with intellectual pretensions.

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  8. That Pleasant Grove City v. Summum finding is interesting to me – if permitting the erection of statues is speech by the state, then how does the existing ten commandments statue make it past the establishment clause (slash how does the state get away with engaging in some but not other religious speech, as with the satanist statue in Oklahoma)?

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          • Hawaii did not ever exit from the US to support United Kingdom in any war, so flying that flag seems somewhat less treasonous than flying a flag under which that state’s soldiers *actually did* attack US soldiers under.

            Likewise, the CSA, in the short span of its existence, existed only really as an enemy of the US, whereas the US shares something like 400 years of history with England, both before and after it existed, marred only by about a decade of wars.

            It’s worth pointing out that the current Union Jack is actually the United Kingdom flag, created upon Ireland and Great Britain’s union in 1808, not England or Great Britain flag. And thus, being created in 1808, it’s not the flag that opposing forces fought under in the Revolutionary war. *That* country was technically ‘Great Britain’, not the UK. (Although considering it was almost completely controlled by England, saying we were at war with England is not very wrong.)

            However, the US *has* actually been at war with the UK, in the War of 1812. And I guess they used that flag?

            But Hawaii, obviously, was not involved in that war either.

            That said…I have no idea what the hell Hawaii is doing with a Union Jack anyway, and I actually think ‘No flags of other countries on our licenses plates’ would be a reasonable rule, be they ‘treasonous’ or not. Because it’s stupidly confusing.

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    • I remember seeing a plate in Virginia that read “GODZALI”, which I thought was kind of odd, but did admirably demonstrate the state’s committment to free speech.

      On the other hand they also allowed “GODANUS”, so maybe they’re just not paying attention. (And yes, I know it’s “GOD AN(d) US”, but at the same time, guys, I’d think that when I saw that plate I’d have gone back to the DMV and asked for another one)

      And, of course, there’s the infamous case of Florida plate “A55RGY”…

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  9. Usual outstanding job, counselor. Let me propose a hypothetical…

    We have here a (I believe) federally-mandated display area that every vehicle must have. States are required to use a considerable portion of that area to display the state in which the vehicle is registered and a unique-to-that-state identifying number. The font and minimum font size for that number is also (I believe) specified. Some portion of the border area is “available”. Some states preempt a portion of that border area — mine requires display of current month/year registration stickers in the lower two corners. Some states allow vanity numbers, but TTBOMK all states impose limits on what can be used (eg profanity is not allowed). Some states allow certain freedom of style, but again TTBOMK, all such styles must be pre-approved as the plates are produced by the state.

    Carried to its conclusion, doesn’t Alito’s argument suggest that I should be able to get a design pre-approved with a simple color scheme of text on background, with nothing in the border areas, and I can put my own personal statements in those borders? If not, how can it be considered truly private speech? If the argument is that because Texas has ~350 different pre-approved styles they have a bigger job to show that they’re not just being arbitrary compared to what a state with a very limited number of styles must do, what’s the magic number?

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    • I think there’s also a very long history of states using that area to brand their state. My license plate says “Vacationland.” The next state over, “Live free or die,” and the state after, “The Green Mountain State.” A common road-trip game is identifying license plates from different states and collecting those slogans.

      Every state has, so far as I know, a Dept. of Tourism, a place for visitors to go and find out information about that state; every state promotes and brands itself, trying to distinguish it from other states. There are state flowers, state birds, state trees, state rocks, state foods.

      So the notion of official state speech has a deep, rich history. My MIL collected silver tea spoons from each state. I’ve known people who collected old license plates, with a goal of having one from each state. Quarters and stamps get issued with state-specific logos.

      There’s a deep history of state speech in effort to promote and brand that state as different from others. First in Flight. The Empire state. The Evergreen State. Wild, Wonderful. The exception seems to be Virginia, which has the most boring license plate in the nation.

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  10. “Seems to me that the license plates represent a hybrid of public and private speech. The only public speech that a license plate makes to me is “This is a vehicle registered in the state of Texas.””

    What about that “Live Free or Die” or DC’s “Taxation Without Representation.” License plates have been used by the state to convey more than the mere fact of the vehicle’s being registered.

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      • Sure, but my point is that this is messaging from the state, not the individual. I suppose we could interpret the individual not taping it over as an implicit endorsement of the message, but it is still coming from the state.

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  11. Very interesting and informative as always, Burt. You write, So does that mean the state has to allow Ku Klux Klan or Nazi plates? Yeah, probably.

    I was thinking and wondering more along the lines of “NAMBLA”, “Support Your Local Head Shop”, or “Marriage Equality NOW!” (well, also KKK, before you mentioned it yourself.)

    I think has the right of it above with this,

    However, while I would not assume that the State of Texas endorses each viewpoint, I would assume that the State of Texas does not object to the message being conveyed.

    So rather than being a binary question of private vs state speech, the speech in question is a hybrid, akin perhaps to a newspaper printing letters to the editor or even this very comment section, where one party is providing a forum for the speech of another. And in such a situation, the provider of the forum can speak on its own behalf, allow speech that it doesn’t actively endorse but doesn’t actively object to, and restrict speech it actively finds objectionable without contradiction. The question then is does the fact that the provider of the forum in this case being a governmental entity change this calculus in any way?

    I think the distinction between the two cases you cite as precedent may boil down to considerations of who can be construed as providing the forum. In Wooley v Maynard the owner of the vehicle onto which the state was requiring a license plate to be affixed was arguably being forced to provide the forum for the speech of the state. In the other case it would be the state providing the forum in the form of space in the park. To my mind the SCV case is more akin to the latter seeing as the forum is the optional background area of the plate itself. The state isn’t compelling speech since the messages are totally voluntary and optional.

    So bottom line is that I believe I agree with the decision. I also agree that allowing these sort of message plates, beyond perhaps those endorsing State universities and such (Go Wildcats!), is inherently problematic vis-a-vis First Amendment considerations.

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  12. 1.) Fantastic post.
    2.) I agree with you on what the decision I would have liked to see.
    3.) Alito’s piece is fantastic.
    4.) Can you give a write up on the case about the park? It is boggling my mind that the government can say, “We will build the 10 Commandments but not your pyramid because we are building the former of government speech and therefore can decide what we say.” WTF?

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  13. If a state allows “bonehard”, which I have personally seen, and “gotmilf”, I’m really not seeing the difference. And that’s from a state a lot more liberal and anti SCV.

    Pff. You have to have a lisc. plate. But you should be able to put whatever the hell you want to on it.

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  14. Burt: “One must concede that Justice Alito has a point, albeit one made with an informal, decidedly non-scholastic voice. (Nor would it have been difficult to make exactly the same point using more succinct, formal language: “A reasonable, ordinary person observing the diversity of messages on the various specialty plates would not conclude that the state of Texas was delivering a message but rather would attribute those messages to the drivers or owners of the vehicles bearing the diverse license plates.”)”

    I thought that he had not point, because his analogy stinks. There’s a big difference between golfing and the Confederacy; the latter has deep political meaning.

    How many US states would allow an Al Qaida or ISIS license plate?

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    • Obviously a pro-ISIS plate would be hugely politically unpopular and we could expect that the political systems of the state would move to block it. Which is pretty much the same scenario as this case.

      If the First Amendment stands for anything, it is that people can express their political points of view.

      Given that the Confederacy (or ISIS) have deep political meaning, doesn’t that enhance the First Amendment rights of the person seeking to express a point of view by displaying the plate?

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  15. “My free speech rights are being violated because instead of saying XXX on my license plate I have to buy a bumper sticker and put it next to my license plate” is not compelling to me. The New Hampshire case doesn’t seem analogous: there the plaintiff was arguing that he was compelled into speech he disagreed with, not that he was denied the ability to speak in the specific half-square-foot of his choice.

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    • “My free speech rights are being violated because instead of saying XXX on my license plate I have to buy a bumper sticker and put it next to my license plate”

      So if I want my license plate to say “GOD IS NOT REAL”, the DMV denies it but it’s not a government regulation of speech because I could totally go buy a bumper sticker and put it next to my license plate. Even though “GOD IS REAL” gets approved without even a blink.

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      • So if I want my license plate to say “GOD IS NOT REAL”, the DMV denies it but it’s not a government regulation of speech because I could totally go buy a bumper sticker and put it next to my license plate.

        Yes. You could also get a “Kill all the (ethnic group of your choice)” bumpersticker, which no one in his right mind would expect the state to put on a license plate.

        Even though “GOD IS REAL” gets approved without even a blink.

        Even though “Irish and Proud” would get approved without even a blink.

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  16. A note: I wanted to tackle the Arizona case about the church signs today. That’s not going to happen for a while because of professional obligations. Regrets.

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