Antonin Scalia

SCOTUS Seems Inclined to Reject Censorship of Confederate Flag License Plate

If specialty plates are government speech, Texas officially loves golf and hates abortion.

|

Texas DMV

In a case it heard yesterday, the Supreme Court considered whether messages on specialty license plates constitute private speech and, if so, what kinds of restrictions might be consistent with the First Amendment. The case involves a Sons of Confederate Veterans plate that the Texas Department of Motor Vehicles rejected in 2011 on the grounds that many people would be offended by the Confederate flag it featured. Explaining its decision, the DMV board said "a significant portion of the public associate the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is [sic] demeaning to those people or groups." Last year the U.S. Court of Appeals for the 5th Circuit said that was not a constitutional reason for censoring speech in this context, and yesterday several justices seemed to agree.

Texas DMV

Although five of the six circuit courts to address this issue have held that specialty plates constitute private speech, Texas argues that all 438 of the messages it has approved—ranging from "Don't Tread on Me" and "Choose Life" to "Rather Be Golfing" and "Mighty Fine Burgers"—actually represent government speech, which means the First Amendment does not apply. "Messages on Texas license plates are government speech," Texas Solicitor General Scott A. Keller told the Court. "The First Amendment does not mean that a motorist can compel any government to place its imprimatur on the Confederate battle flag."

Texas DMV

Justice Ruth Bader Ginsburg seemed unpersuaded. "Is it government speech to say 'Mighty Fine Burgers' to advertise a product?" she wondered. Justice Anthony Kennedy also sounded skeptical:

Is this a case where the state, the government, has aided in creating a new kind of public forum? People don't go to parks anymore. If the government bought soapboxes to put around the park, that's government property, but the government can't prohibit what kind of speech goes on there. Why isn't this a new public forum?

Similarly, Justice Samuel Alito compared specialty license plates to government-owned billboards and wondered if the state would have carte blanche to suppress certain viewpoints in that context as well. The park and billboard analogies apparently appealed to Justice Sonia Sotomayor, who said Keller had not adequately addressed them.

Justice Elena Kagan also seemed inclined to view the plates as a kind of public forum, saying, "In a world in which you have approved 400 license plates and they are pretty common in the State of Texas and you have only disapproved a very select few…it does seem as though you've basically relinquished your control over this and…made it a people's license plate for whatever…people want to say."

Chief Justice John Roberts did not seem to be buying the government-speech argument either:

I'm not quite sure why it's government speech since there's no clear, identifiable policy—at least, it's arguable there's none—that the state is articulating. I mean, they're only doing this to get the money.

Even Justice Stephen Breyer, perhaps the most pro-government member of the Court, was practically begging Keller to articulate an acceptable rationale for rejecting some plates while accepting others. "I just think you have to have some kind of legitimate reason," Breyer said. "It doesn't have to be much. It could be just a little." Of the eight justices who spoke (Clarence Thomas was silent, as usual), only Antonin Scalia seemed inclined to accept the state's argument.

Still, at least a few justices were troubled by the implications of preventing Texas from discriminating among viewpoints on license plates. Keller raised the prospect of license plates supporting "Al Qaeda or the Nazi Party," and R. James George Jr., the lawyer representing the Sons of Confederate Veterans, agreed that the state would have to allow license plates featuring swastikas, racial slurs, the word jihad, and political slogans such as "Make Pot Legal." Ginsburg wondered, "Is the choice between everything or nothing?" If so, Scalia said, George was "really arguing for the abolition [of] Texas specialty plates," since the state would prefer that outcome to allowing messages it deems offensive.

Roberts seemed untroubled by the prospect. "If you don't want to have the Al Qaeda license plate," he said, "don't get into the business of allowing people to buy the space to put on [a plate] whatever they want to say."

NEXT: FCC proposes $325,000 fine for accidental inclusion of porn on video capture in news story

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. And my reaction to the idea of an Al Qaeda plate is the same as my reaction to an Confederate Battle Flag plate or an Anarchy “A” plate; nice of the jackasses in question to wear a label.

    Seriously; whenever I read about somebody (usually, but not always, a Liberal Intellectual, One Each) getting their nickers in a twist over a symbol somebody is wearing, or otherwise displaying, I have to wonder “Do you really want all the bigots, nitwits, fascists, and so forth, to STOP identifying themselves?”

    1. It’s nice when jackasses identify themselves and save you the trouble. But I’m not sure that should be something the state is involved in. But I don’t really care.

      1. As I note before it is voluntary government funding. Some of the licenses like college ones split the extra money between the government and scholarship funds for example. If we are going to have government issued license plates at all then I like it.

        1. The voluntary funding part is good, I guess. It just seems like it is bound to be a mess. Plus it makes it harder to tell what state a car comes from.

          What’s wrong with regular old vanity plates, anyway? I suppose that can get into controversy too. A guy in NH recently was allowed by the state supreme court to keep his “COPSLIE” license plate. I’m glad someone else has the balls to go around with that on his car.

          1. It just seems like it is bound to be a mess. Plus it makes it harder to tell what state a car comes from.

            I don’t see why that matters at all.

          2. Here’s one of the private entities licensed to make them. Not really a mess at all. They have the charity plates I mentioned, custom designs, premade designs, as well as your typical vanity plates where you change your number, all at various price points.

            1. Well market and sell rather than make. They are made by prisoners. Crony crapitalism is a downside of this.

            2. Well, like I said, I’m not too worried. And I don’t see any principle at stake (except the question of whether mandatory state registration should exist at all). Just seems silly to me. I kind of like how they do it in Europe where the plate is just a number and stays with the car.

          3. It just seems like it is bound to be a mess. Plus it makes it harder to tell what state a car comes from.

            If we go back and start with the premise that license plates are primarily present to unambiguously identify the car in the event of an incident (of any sort), then anything that detracts from that function is counterproductive. As regular readers here will know, I am not a big fan of government, so if you’re going to have license plates, then do it right at least. A plate should be two colors, one for simple bold letters and numbers, one for the background. If states are serious, then they would look at the neighboring states and pick a different combination. Of course, this is how it used to be done in the US prior the 1980’s (as I recall).

      2. Here’s why you should care. This BS provides leviathan with a revenue stream, which is always a bad thing. Then the cost of repeatedly litigating this offsets the gains. The whole enterprise is government expanding into ridiculous levels. Car ornaments? Really?

        1. I think that’s a good point. A voluntary tax is still funding the same monster. Voluntary taxation sounds nice, but it is only any good if there is very limited government. They still spend the money on the same horrible shit if people hand it over voluntarily. Just with very slightly less stealing.

        2. Well if they are going to collect revenue anyways I’d rather other people being paying extra voluntarily than myself being taxed more. I won’t argue that we shouldn’t have government license plates in the first place though.

      3. I make up to usd90 an hour working from my home. My story is that I quit working at Walmart to work online and with a little effort I easily bring in around $40h to usd86h Someone was good to me by sharing this link with me, so now i am hoping i could help someone else out there by sharing this link……… Try it, you won’t regret it!… http://www.jobs-check.com

  2. Where can I get my “Tony and Shriek are fucking idiots” plates?

    You know….a nice non-controversial sentiment upon which we all can agree!

  3. “Fine. No one gets specialty plates, then. You can all prove to everyone what an asshole each of you is through bumper stickers!”

    1. Works for me!

  4. How many sons of confederate veterans are still alive anyway?

    In the name of balance, shouldn’t there also be a son’s of Union veterans plate available? And a “choose death” plate. Maybe “I’d rather cut my dick off than be golfing”.

    I guess I don’t really care much, but the whole thing of putting shit like that on license plates seems idiotic. Especially the ones that are at all controversial or political.

    I suppose the big question is, what does it take to get a special license plate like that? If a certain number of people want a “Satan is awesome” or “I love abortion” plate, will Texas make them? If not, it seems like they are censoring already.

    1. And note that the above post contains 666 characters (according to reasonable). This is proof that satan is indeed awesome. Keep that in mind, Texas DMV.

    2. I assume it’s like the Daughters of the American Revolution–you just have to be a descendent, not a literal daughter.

      It’s clearly speech, but the trick here is that the government is having plates made and can only make so many. Somebody somewhere has to make the decision about what’s worthy and not worthy. That can’t be based on content, which would run afoul of speech protections, but you could reject, I dunno, LIBERTARIANS RULE because of the low number of potential purchasers.

      1. Well, that’s why I asked if they would make any plate if enough people asked for it.

        I would have thought that the DMV or whoever it is would have wanted to avoid touchy subjects like abortion or the civil war on license plates. But I’m wrong about lots of stuff like that.

      2. That just opens up to third party, private, license plate vendors.

        The only thing the state needs to worry about is the state identification and the license plate number – which they issue out to the manufacturers for a licensing (hah!) fee.

        Then the potential manufacturers can fight out over what is profitable enough to make, And the entry requirements are pretty small – a metal stamper and a printer.

        You could see custom license plate designs on Etsy or something.

        1. So, pornographic plates are next?

  5. If so, Scalia said, George was “really arguing for the abolition [of] Texas specialty plates,” since the state would prefer that outcome to allowing messages it deems offensive.

    It would be unfortunate if that is the ultimate outcome. It is a form of voluntary government funding.

  6. Aw, geez. I just can’t work up a care about this one.

  7. Is there any reason for vanity plates except that it allows the state to squeeze a few more dollars from usage of the holy ROADZ?

    1. People seem to want them. That’s a reason. But I can’t think of any other reason for states to allow or provide them.

      1. People seem to want them.

        And the state has proven that it is always willing to yield to the wants of the peasants…I mean, citizens. I will give Texas credit though, they have a hell of a selection.

        1. Texas is providing residents interested in specialty plates with something they actually want, at a price they’ll voluntarily pay, without coercing people who aren’t interested to either get one, or subsidize it with their tax money.

          We ought to promote the hell out of that philosophy.

    2. I dunno, but I read that New Hampshire has the highest amount of vanity plates per capita.

      1. I’ve read that as well. As far as I can see they are all about the Redsox, the Bible, the make of car they are attached to, or how many kids the driver has. The best I’ve seen recently was “MILLRTIME” or something like that. So beer drinking too, I guess. I wonder if that guy gets pulled over a lot.

    3. But its not a squeeze, its voluntary and they are pretty popular. They aren’t nearly as expensive as vanity plates (ie changing your actual plate number).

    4. The real question is – is there any legitimate reason for license plates in the first place?

      1. Unambiguous identification.

        1. Why would that be a ‘legitimate’ reason? *You* aren’t required to go around with a license plate strapped to your back for ‘unambiguous identification. Your bicycle doesn’t require this to use the road either.

          And it only identifies the *vehicle* (and not unambiguously).

          1. Ok, statist justification =/= legitimate reason.

            Point conceded.

    5. Possibly the most minor way states shakedown citizens with pointless gimmes and fees so that they don’t have to raise income taxes on anyone.

  8. The fact that the Supreme Court is even arguing over vanity license plates is evidence that the world is ending.

    1. Yeah, what cases did they reject in favor of this one? Seems like there must be something more important going on.

  9. Keller raised the prospect of license plates supporting “Al Qaeda or the Nazi Party,” and R. James George Jr., the lawyer representing the Sons of Confederate Veterans, agreed that the state would have to allow license plates featuring swastikas,

    Arizona
    Don’t be stupid, be a smarty.

    AAZ-9241

    Come and join the Nazi party.

  10. “If you don’t want to have the Al Qaeda license plate,” he said, “don’t get into the business of allowing people to buy the space to put on [a plate] whatever they want to say.”

    Isn’t this case proof that they aren’t in that business? That people CAN’T put whatever they want on the plate?

    1. The question that’s being resolved right now is if they can can not be in that business.

      1. Meaning this is a *state* function – and in every other area a state can not forbid speech simply because it does not like it. There should be no difference here.

  11. These specialty plates have to go anyway. It’s a pain in the ass to read those things in case of a hit and run accident or a crime, and in most cases they have wildly different colors even in the same state. If it’s an out of state plate it’s pretty much hopeless. This is in addition to the dealer advertisements and tinted “license plate covers” that various assholes get away with putting over their plates to make it even harder to ID.

  12. 1) This is ridiculous.
    2) BUT, IF it has to be adjudicated (SLD), it doesn’t belong in a federal court. Cause this is a state issue, not a 1A issue.

    That’s all the energy I can raise about this. I just don’t care which way it goes – I care more that this kind of shit it clogging the courts, AND STILL DOESN’T GET IN THE WAY OF ALL THE OTHER SHIT THAT’S STILL HAPPENING (looking at you PPACA, FISA Court, pretty much every law any more…).

    1. I’d be all for these kinds of stupid cases if “it kept the government distracted from doing other shit”. But it doesn’t. They do all the evil shit, then they STILL do all the annoying bullshit, like this.

      Fuck, I’m going go all John Paul Jones (the ship captain, not the drummer) or Samuel Adams (the revolutionary, not the beer, which sucks ass, BTW) really, really soon….

      *grabs Brown Bess from the mantle*

      1. Um, JPJ plays a few instruments, not sure if drums are among them.

  13. Let’s think of an analogy.

    Suppose that Bob has the right to run for, and be elected, to the office of, say, state legislator. He forms a campaign committee and asks the Elections Board to put his name on the ballot.

    BUREAUCRAT: “Great, are you the Republican candidate or the Democratic candidate?”

    BOB: “Neither, I’m running on my own behalf.”

    BUREAUCRAT: “Well, then, do you have a bunch of petition signatures asking that you or your party be put on the ballot?”

    BOB: “No.”

    BUREAUCRAT: “Then you can run as a write-in candidate, but you name won’t be on the ballot.”

    So favored candidates get their names listed on the ballot, but Bob’s name isn’t there, although he’s just as much of a candidate as the others.

    Isn’t the ballot just as much of a public forum as a license plate? If Democrat and Republican candidates can use the ballot to communicate the information, “I’m running for office,” and if candidates or parties with enough petition signatures can use the ballot to convey the same information, why can’t Bob, an unaffiliated candidate, communicate the information about his name and his candidacy? Because he isn’t a majory-party candidate and doesn’t have the signatures? But aren’t signatures a proxy for popularity, at least in part? We don’t exclude preachers from public property based on whether they can get a certain number of petition signatures in their support.

    What gives?

    1. What gives is that the two major sub-gangs running the largest crime gangs in the country, the R and D bands, are using the FYTW clause of the constitution to make their competitors waste time and resources on gaining ballot access that they automatically grant themselves.

      It has nothing to do with rights. It’s just a power grab.

  14. I’m relieved by the favored argument that Texas has effectively made license plates into soapboxes, so you can’t very well discriminate on speech content. Hard to argue with that. Meanwhile someone in my state was just rejected a pro-LGBT-rights plate because of its “sexual nature.” Even though it had nothing to do with sex, one wonders if this country’s very special exception to free expression that involves genitals would be sustained.

Please to post comments

Comments are closed.