Supreme Court's specialty license plate case isn't limited to Confederate flags

|The Volokh Conspiracy |

As I noted before, the Supreme Court's specialty license plate case may be called Walker v. Sons of Confederate Veterans, but it isn't limited to Confederate flags. Rather, it allows states to pick and choose which specialty license plates to print (even if it has created a program in which many groups can submit their own designs). That means it can exclude any images it disapproves of, whether Confederate flags, pro-abortion-rights messages, anti-abortion messages, or whatever else. (The one possible exception is preference for or hostility for religious speech, which may be forbidden under current Establishment Clause caselaw; I set that aside for this post.)

Today, we saw evidence of that, as the Court "GVRd"—granted the petition for review, vacated the decision below, and remanded the case (i.e., sent it back) to the lower court for further consideration in light of Walker—in ACLU of North Carolina v. Tata. In that case, North Carolina had allowed "Choose Life" plates but didn't include pro-abortion-rights license plates. The U.S. Court of Appeals for the Fourth Circuit held that this was impermissible viewpoint discrimination. But now that Walker has been decided, and the case has been sent back to the Fourth Circuit, the legal result will be clear: North Carolina can exclude pro-abortion-rights plates, even if that constitutes viewpoint discrimination, just as it can exclude Confederate flag plates; nothing in the Walker decision limits itself to the Confederate flag.

But of course other states can also exclude "Choose Life" plates, if they'd like, as New York had done. As I argued when the Second Circuit upheld that New York policy, the Second Circuit's argument that the policy was viewpoint-neutral was mistaken; had Walker come out the other way, the losing party in the New York case (Children First Foundation, Inc.) would have asked the Supreme Court to GVR in light of Walker, and would have probably have succeeded. But now Children First will likely not ask the Court to review the matter, since Walker so clearly validates the exclusion of the "Choose Life" plates. (Children First has until mid-August to decide whether to file a petition for review.) So if New York wants to reinstitute its specialty plate program, and exclude "Choose Life" or any other plate, it's free to do so.

Now I think the Walker result is mistaken, for reasons given in Justice Alito's dissent, though I think it was a difficult case, in a murky area of law that the majority left murky. But the legal rule announced by Walker is about states' rights to choose what speech to include on its plates—and thus states' rights to discriminate based on viewpoint in this context, against any viewpoints that the states dislike or just view as too controversial—and not specifically about the Confederate flag.