Specialty plates in circuit courts, and the parties’ arguments at the Supreme Court

Yesterday I discussed the background to Walker v. Texas Division, Sons of Confederate Veterans. Stated briefly, Texas denied Texas SCV‘s application for a specialty license plate with a Confederate flag on it, because the design might be “offensive”. The question is whether Texas is required by the First Amendment to grant the application.

Today I discuss how specialty plate programs have fared in lower courts, and the arguments Texas and Texas SCV bring to the case.

In the courts

Almost every circuit court has required that specialty plate programs be viewpoint-neutral, not restricting designs because of their views. (And the one exception judged a program without an open invitation for designs.) So it’s unsurprising that Texas SCV won its Fifth Circuit case.

Texas appealed to the Supreme Court, which agreed to answer two questions. Are specialty plate programs “government speech” that need not be viewpoint-neutral, such that the design can be rejected as “offensive” (or, indeed, for almost any reason)? And did Texas discriminate by viewpoint in rejecting Texas SCV’s design?

Texas’s argument

Texas says license plates are entirely the government speaking, and it can say or not say whatever it wants. Texas relies on two cases: Pleasant Grove City v. Summum, in which a city’s approval of a limited set of monuments in its city park (and denial of a particular monument) was deemed government speech; and Johanns v. Livestock Marketing Association, in which a government beef-promotion plan that exacted a fee from beef producers to support speech (including the Beef. It’s What’s For Dinner tagline) was deemed government speech that program participants couldn’t challenge on the grounds that it compelled them to speak.

According to Texas, its specialty plates are government speech because Texas “effectively control[s]” the whole program. What matters is whether Texas “exercises final approval authority over every word used” — and it does. Texas allows private citizens to participate, but it has “final approval authority” over every design. Texas also argues that it can’t be compelled to speak by displaying the Confederate flag. By making a license plate, the state’s authority backs (or doesn’t back) every design approved or rejected. Plate purchasers shouldn’t be able to force Texas to espouse the views of an unwanted specialty plate, which drivers would then ascribe to Texas.

The Texas-approved Mighty Fine Burger specialty plate

And of course, Texas says ruling against them would lead to “untenable consequences”. For every “Stop Child Abuse” plate there’d have to be an opposing plate supporting child abuse, and so on for the whole parade of horribles. Texas particularly notes that the Eighth Circuit forced Missouri to let the Ku Klux Klan join the state’s Adopt-a-Highway program under this logic. (The person behind me in the oral argument line related that one of the highways entering Arkansas was adopted by the KKK under that rule, giving Arkansas visitors that delightful first impression of the state.)

Texas also asserted that assessing how members of the public view a specialty plate is “an objective inquiry”, so that deciding a specialty plate “might be offensive” doesn’t discriminate on the basis of the specialty plate’s viewpoint. As to the Fifth Circuit’s criticism of the “unbridled discretion” provided by the “might be offensive” bar, Texas instead describes it as “discriminating among levels of offensiveness”, such latitude permitted because the state is “assisting speech”.

Texas SCV’s argument

Texas SCV says Texas is being hypocritical. The Capitol gift shop sells Confederate flags. Texas recognizes a state Confederate Heroes Day. It maintains monuments to Confederate soldiers. Either Texas doesn’t really think the Confederate flag is offensive to the public, or its other “government speech” is flatly inconsistent with its specialty-plate stance.

Texas SCV also distinguishes the plates designed by the state legislature from plates designed by private entities. The former are the product of the government, but the only government involvement in the latter is in approval or disapproval. The driver has ultimate control, because only when he designs a plate and ultimately drives a vehicle with it does speech occur. And under Wooley v. Maynard — a case where a Jehovah’s Witness protested New Hampshire’s fining of people who covered up “Live Free or Die” on their license plates, and the Court said New Hampshire couldn’t force a person to espouse the state motto — it’s the individual’s speech (at least for non-legislatively-designed plates).

Texas SCV brushes off Summum and Johanns. Permanent monuments in parks have always been associated with the government, because parks physically can’t accommodate all monuments. Not so for license plates. (And Texas’s $8000 deposit covers startup costs that might justify treating rare plates differently.) And while the beef-promotion messages were part of a “coordinated program” by government to “advance the image and desirability of beef and beef products”, privately-designed specialty plates are not — especially as their fullycontradictory messages are “consistent” only as a fundraiser.

Finally, given that privately-designed specialty plates are private speech, the First Amendment requires that restrictions be viewpoint-neutral. By restricting Texas SCV’s message based on its potential for offensiveness, Texas endorsed viewpoints that deem the Confederate flag racist and discriminated against viewpoints that do not.

Tomorrow, analysis of Texas’s government speech and compelled speech arguments.


37 days and one year later: part 3: mileage, elevation, and scenery

This is part three of a series of posts discussing various aspects of a bike trip I did across the United States in 2012. Part one discussed the start of the trip and choosing a route. Part two discussed my daily routine and nightly shelter. This post discusses mileage, elevation, and the state-by-state scenery.

Mileage and elevation change

Excluding the first day, my daily mileage ranged from a low of 57.63mi to a high of 161.47mi. For the first “half” (psychologically) of the trip til Pueblo, I aimed to not lose ground from my overall target pace but didn’t sweat falling slightly short, and I averaged slightly under 100mi/day (even including that farce of a first day). Nevada’s emptiness strongly regimented my stops and pace. At one point I faced three ~70mi stretches between water, with further logistical challenges beyond: given my time constraints, I had to do two in a 135mi day, then the last plus a bit more the next day. But normally I biked shorter distances til the TransAmerica.

The end of the Western Express in Pueblo marked the start of the Great Plains, where I began to make up lost mileage. In Kansas I discovered 120-130mi was my maximum sustainable pace if I didn’t adjust my schedule to start earlier. Any further and the next day would be an invariably “short” 90-100mi. 120mi let me start somewhat later in the morning (I am absolutely not a morning person), eat reasonable lunches and dinners (if sometimes as gas station takeout), and read awhile before a decent night’s sleep. With more focus I might have started earlier and biked further. But I was on vacation, and I was, er, relaxing. If strict discipline wasn’t necessary, I wouldn’t force it.

That said, 120mi wasn’t always possible. The Missouri section had no difficult elevation, but it did have the Ozarks with an unrelenting sawtooth profile: not enough to exhaust, but enough to slow down the entire day. I eventually gave up on playing mileage catchup til Illinois and settled for not losing ground with ~100mi days.

Elevation profile from Cedar City, Utah to the top of a 4000ft, 25mi climb
Cedar City, UT to the red line is around 25mi: uphill but comfortably gradual

East of the Mississippi had arguably more difficult elevation than west. (Carson Pass might be an exception, as a very long ascent so close to the start.) Virginia’s section has more total elevation gain than any other state’s section. Eastern ascents were shorter but much steeper: nothing that couldn’t be handled shifting to lowest gear and spinning, but more exhausting. The steepest lengthy climb was around 4mi/2500ft to the Blue Ridge Parkway in Virginia. In contrast the climb to the Continental Divide was 10.5mi/2800ft.

Scenery and attractions

A view across to Marin from underneath the right side of the Golden Gate bridge
The Golden Gate Bridge, and the start of my trip

California was the least interesting of the western states. The first hundred miles from San Francisco were mostly flat and unvarying: not bad at the start, but still not interesting. The gradual multi-day climb to Carson Pass had its attractions, particularly along California’s SR 88. But California was a short and mostly undistinguished state to bike through, at least along this route.

Of the western states, Nevada was the most majestically desolate. Pass through a basin (carefully winding between mountains), climb to a pass, descend to a basin, and repeat through the entire state. All around were mountains and emptiness; it was the state where I felt most truly alone. (Which as an introvert I consider not a bad thing.) The climbs were never particularly steep, and the descents never astonishingly so, yet I hit ~40mph most days through it. Strangely, of all the states I passed through, I think Nevada is the one I’d most want to return to on bike, even tho it has “nothing” to recommend it.

The road stretches straight for miles into the distance, through flatland bordered in the distance by minor mountain ranges
Nevada’s scenery doesn’t change very quickly, but it’s all beautiful like this

Utah and the mountainous portions of Colorado were much more varied: good in their own ways, yet not in Nevada’s unique way. After that initial 84mi waterless stretch (from just in Nevada to well into Utah), I encountered irrigated farmland, red sandstone rock formations, and a good variety of desert vegetation. The empty stretches didn’t have the consistency of terrain that Nevada’s did. I did pass through emptiness, but that emptiness carved across mountainsides, descended into and out of valleys, and passed through several national parks with incredible scenery. Nevada’s uniqueness aside, Utah and Colorado were the best states of the trip.

This arid, rugged Utah landscape nonetheless has a smattering of green scrub, and a canyon in the distance shelters trees and bushes
A sampling of Utah’s varied vegetation and scenery

West of Pueblo turned into the Great Plains: the tail end of Colorado, and Kansas. The riding is basically flat, with mercurially-shifting prairie winds kicking in to keep things interesting. Even crosswinds that aren’t actually impeding you can really sap energy. The Colorado portion wasn’t particularly different from the Kansas portion, except that the local towns along CO-96 banded together to create the Prairie Horizons Trail — a naming and sprucing up of the stretch to particularly accommodate touring cyclists, complete with map listing services at locations along the way. It was definitely a nice touch. 🙂 Kansas was much the same, excepting that the route traveled many different roads, slowly cutting south as it crossed the state. Both routes were notable for their sheer emptiness: not in the desolate manner of Nevada, but in the way that, leaving one town, you could see the grain elevator in the next town, and the utter lack of anything but fields of grain before it.

Sunset in Kansas
Sunset colors in Kansas as nighttime riding beckons

Missouri was my least favorite state for two reasons. I’ve already mentioned its sawtooth climbs and descents. The second reason is that Missouri was one of only two states where I was ever aggressively chased by dogs. This was not a rare occurrence: it happened multiple times, including a couple times in complete darkness. Fortunately, I was able to bike just fast enough that dogs that appeared to have every intention of attacking me could only just keep pace with me til I left their home ranges. I evaded them all, but always with a fast-pounding heart afterward. Missouri did have Al’s Place, the nicest hostel of the entire trip — a former (converted) jail run as a hostel for cross-country cyclists.

A signed Tyler Hamilton Tour of Missouri jersey; written across it are "Olympic Gold Medalist" and "US Pro Champion '08"
A jersey that, er, “graces” Al’s Place; my timing seeing it on August 12 was impeccable

Illinois was a short and sweet state I passed through in about a day, near the southern tip. It had the Mississippi and Ohio rivers at start and end to recommend it, but it was mostly uneventful. It played host to the worst rainstorm of the trip, which passed over me during a brief gas station stop. I delayed leaving an extra fifteen minutes to avoid biking in briefly-torrential rain; it would have been impossible to see through it while riding. Its other attraction was the milk shake at Rose Kountry Kitchen in Cave-In-Rock. I ordered it sight unseen before looking at a menu. When I looked at the menu I discovered there were two sizes; I quickly upgraded my request to the 32-ounce (!) size, to much astonishment from the restaurant staff. There’s nothing better than that many calories, as ice cream, while biking.

Looking back toward Cave-In-Rock, Illinois from the public ferry across the Ohio River
The ferry across the Ohio was one of my more unique moments of travel

Kentucky, sad to say, was at times the grungiest state of the trip. The graffiti on the state welcome sign just past the Ohio didn’t bode well. And the many run-down homes and trailer homes on the many back roads on which I traveled only confirmed this. And Kentucky’s dogs were probably the worst of the entire trip. TransAm cyclists told me of other cyclists who’d had to get stitches from dog bites suffered in Kentucky. I evaded any bites, but as in Missouri, it was very stressful doing so. The best part of Kentucky, however, was the Utica Fire Department, which lets cyclists stay in the volunteer fire station overnight; I particularly appreciated it after a ~142mi day. I just wish I’d been able to say hi to more firefighters while I was there.

A welcome-to-Kentucky sign with spray paint graffiti across it
Welcome to Kentucky 😐

Virginia presented the Appalachians, the Atlantic, and the end of the trip. Virginia’s route paralleled the Appalachian Trail for awhile, giving me the opportunity to briefly revisit many places I’d visited four years before. I stopped early in Damascus, partly from tiredness, partly to stay at The Place, a hostel I’d visited while hiking the A.T., partly for a good dinner, and partly to make an early start on the mother of all days the next day. (More on that later.) My mileage worked out just right so that my last day was a pleasurable hundred miles into Yorktown — made slightly hectic by two broken rear spokes with 25mi remaining, yet leaving me several hours in the evening for a good dinner, ice cream, and a beer. Grace Episcopal Church hosted me as a cyclist on this last night, giving me an opportunity to wash laundry and clean myself up before heading to Norfolk to fly back to California the next day. (Yes, this cut it close, but I was fairly sure it was always going to be that way.)

Next time, mileage extremes and water.