Yesterday I discussed offensive speech, especially relevant to the Texas license plate situation because the design’s being seen as “offensive” was Texas’s justification for denying Texas SCV‘s request. Today I talk a bit about oral argument.

Government speech

Texas hammered on its government-speech argument, but it generally didn’t get a very receptive audience. As Lyle Denniston observed, most of the justices’ questions and comments implicitly assumed there was a free speech issue to determine — which wouldn’t be the case if Texas SCV’s design were government speech. I doubt there’s more than a vote or two for these plates being government speech, if that.

One particularly gratifying discussion of government speech occurred when Texas’s advocate attempted to assert the specialty license plates were government speech because of the level of control, and Justice Kennedy noted the circularity of the argument. It was good to see practically the first problem I noticed in Texas’s argument, was also noticed on the bench. Chief Justice Roberts’s expression of skepticism about the program having no clear, identifiable policy being articulated, instead stating Texas was doing it for money (later joined by Justice Alito on the latter point), was also welcome.

A fair bit of time was spent discussing hypothetical “Vote Republican” and “Vote Democrat” license plates, and whether a state might approve one and deny the other. It’s not clear to me (nor was it clear to the justices) that “government speech” would directly prohibit this, but various “independent rules” were observed that would prevent such (just as such electioneering would be prohibited, somehow, in official ballots).

Forums

As I suggested earlier, Texas’s specialty plates program seems to be either a designated public forum or a limited public forum. Justice Kennedy picked up on this, asking if this was a case where Texas had opened “a new public forum in a new era”. Justice Alito posed multiple hypothetical questions involving government-established places where speech might occur, and the implication I drew from his comments suggested that he also viewed such cases as public forums. Each justice also presented hypothetical cases where the government set up a place for speech to happen (a billboard with a state message on it, with a small space for private speech to take place; officially-designated soapboxes in parks), then questioned whether it could be government speech or instead a public forum.

Justice Alito also probed the nature of the license plate forum if the state accepted only colleges, then colleges plus scenic places, and so on, gradually expanding into everyone. The point being: at what dividing line is a scheme no longer government speech? Texas SCV’s answer was that every state-designed plate would be government speech — but plates designed by private entities would be those entities’ speech.

“Offensive” speech

Various justices expressed concern that approving Texas’s denial might lead to regulation of offensiveness in other forums. Justice Ginsburg characterized the “might be offensive” standard as “nebulous” and granting too much discretion. Justice Kagan worried about approval of regulation of offense spreading into more and more forums, producing more and more regulation of speech.

The true fireworks for offensiveness, of course, arose when Texas SCV’s free-speech nut lawyer rose to defend their position. In essence he argued that once Texas extended an open invitation to anybody, they no longer could control what was said. Then, in response to successive questions, he argued Texas couldn’t prohibit license plates with swastikas, “jihad” (which he initially misheard as “vegan”, to laughter), “Make pot legal”, “BONG HiTS 4 JESUS” (more laughter, and a high point of the argument), and ultimately “the most offensive racial epithet that you can imagine”. Truly it was a glorious display of zeal for freedom of speech.

Selectivity

Various justices also made comments as to Texas’s non-selectivity in approving plates. Texas approved over 400 plates and rejected only around a dozen. Clearly several justices thought that near-blanket approval weakened any argument Texas might have for the state carefully exercising discretion in every instance, and strengthened the argument that they’d opened up a public forum for speech.

Those are some of the high points of argument. If you’re interested in more detail, see the transcript.

Next time, it’s probably on to a series wrapup. But no promises yet, as I haven’t written up enough thoughts to be certain. And again, as I noted yesterday, this might end up delayed a day or two. Til next time!

Yesterday I discussed First Amendment forum doctrine as it related to Texas’s specialty plate program. Today I discuss the subject where everyone learns to stop worrying and love censorship: “offensive” speech.

“Offensive” speech

Texas denied Texas SCV‘s design because “the design might be offensive to any member of the public” (emphases added). A mere possibility of offense, to a single person, allows Texas (if it wants, as a matter of even-handed objectivity and fairness) to tell the plate requester to pound sand.

What does the First Amendment say about “offensive” speech? Offensive speech particularly is strongly protected. The First Amendment lets you victim-blame soldiers at their own funerals. It lets you burn the American flag, notwithstanding that this “seriously offended” several witnesses. It lets you satirically attribute false quotations to someone implying that his first sexual experience occurred in an outhouse with his own mother…after kicking out the goat. It protects the right to wear an undoubtedly-offensive jacket bearing the words “Fuck the Draft”. It protects a student newspaper cover depicting police officers raping the Statue of Liberty. It lets you falsely claim to have received the highest and most respected of military awards, in some sense diminishing that award’s value. The list goes on and on.

The First Amendment was designed to protect offensive and unpopular speech, full stop. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” “The fact that protected speech may be offensive to some does not justify its suppression.” As the Court stated regarding a more restrictive forum than the public sphere where license plates reside, “The mere dissemination of ideas — no matter how offensive to good taste — may not be shut off in the name alone of ‘conventions of decency.'”

In short, Texas is horribly wrong to think it has authority to censor offensive specialty plate designs based on “levels of offensiveness” (which, we must remember, was Texas’s post hoc rationale, not anything in the law).

Could the Confederate flag be “fighting words”?

Is some offensive speech nonetheless unprotected? Yes, but it must be fighting words that “by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” No one here argues Texas law is really trying to criminalize fighting words, because doing so would run into (at least) two major problems.

First, Texas concedes that Texas SCV could display a bumper sticker with identical design on vehicles. But it’s irrational to think moving a hypothetically-inciting message a few inches would change that aspect of its nature. If a plate design met that standard, then so would a bumper sticker, and both could be forbidden.

Second, Texas’s “might be offensive to any member of the public” rule goes far beyond fighting words. “Choose Life” or “Respect Choice” specialty plates (or even “All Lives Matter”, which is clearly offensive and you should check your privilege, you racist member of the patriarchy) would offend some people. But it’s inconceivable (not meant that way) these could ever be considered fighting words, rather than protected political statements.

If Texas were to argue its “offensiveness” standard addressed fighting words (and it doesn’t), the statute would be substantially overbroad in criminalizing too much speech and accordingly vulnerable to challenge. Even Texas isn’t stupid enough to try to argue this.

What about “hate speech”?

The First Amendment protects hate speech. You can burn a cross on your own property without intent to intimidate, and it’s protected speech. You can hold a Nazi parade on public streets, even if Holocaust survivors say that “seeing the swastika was like being physically attacked.” You can make various forms of pornography that “subordinat[e] women” in a variety of reprehensible ways, and laws against such will be struck down.

And the recent American kerfuffles over various fraternities’ obnoxious racist speech pretty much all constitute protected speech, for which the perpetrators have been widely judged protected from punishment by public universities. (The universities can get away with whatever punishment they want if the perpetrators won’t stand up for themselves in court. [An action which doesn’t prevent a sincere apology and work toward rehabilitation.] Fortunately, not all universities [#notalluniversities] [#butmost] have forgotten their duties under the First Amendment and their obligations to protect academic freedom even when it hurts.)

The imagined “hate speech” exception to the First Amendment, and to freedom of speech more generally, doesn’t exist.

I see. So you’re a racist bigot standing in the way of progress and social justice?

No. There are plenty of horrible forms of expression that nonetheless are protected by the First Amendment, and should be protected. I don’t need to agree with anything anyone says in order to defend their right to say it. (But by all means continue with the insults! I appreciate the encouragement.)

But consider the alternative to allowing all this speech. Suppose we really did think it was okay to punish some of this speech. What neutral arbitrator is going to decide which categories of speech are okay and which are not okay? Who’s going to neutrally enforce such laws in a non-discriminatory manner? There is no neutral arbitrator: rather, the majority will. And history shows that when a majority has the power to censor, it’ll censor things according to its own interests, not according to some “neutral” perspective able to judge what speech is and isn’t permissible.

Indeed, when the standard is that “offensive” speech is prohibited, aren’t minority views precisely those most likely to be deemed offensive? Inoffensive views aren’t the ones that need protection. Rather, it’s the offensive views that need protection, because majorities often aren’t inclined to protect offensive views. Nobody’s going to complain when someone says “Stop Child Abuse”, but they might about a discussion of then-offensive homosexual marriage.

Offensiveness and correctness aren’t always in agreement

Protecting offensive speech is particularly important because because offensive views may also be right. Martin Luther opening a scholarly debate among theologians about corrupt Church practices in the Ninety-Five Theses offended Johann Tetzel and the Church. (Whether or not Luther or the Church was right, I think we can generally agree the world is a better place for that debate having taken place.) Galileo’s astronomical hypotheses offended many astronomers of the day, and notoriously the Church. John Quincy Adams’s speech in bringing petitions “about” slavery before Congress, where Southern congressmen, fearful of what petitions on the topic of slavery might say, had previously voted in a rule to immediately table any petition on the subject, offended those congressmen. Paul Robert Cohen offended many people in protesting a draft later ended, attributable to some small degree to his speech about it. Archie Bunker epitomized bigotry, yet without it All in the Family couldn’t have made the points it made. (Query whether they could make that series today without being shouted down by the congenitally-stupid.)

It’s easier to judge people who say offensive things

Additionally, offensive speech permits the observer to judge people for what they’ve said. Censorship that prohibits expression of particular views also makes it harder to determine whether a person nonetheless holds them.

(It’s not a First Amendment question, but as a matter of the broader concept of freedom of speech, and the expression and discussion of ideas, I wonder if sometimes we take stigmatization too far. That is, we take it to the point where most adherents to an odious idea adhere in silence, with no way to recognize such people when it’s most important to be able to do so — for personal physical safety, for example. The apparent absence of bigots, when everyone agrees they still exist at least sometimes, can all too easily trigger paranoia. The consequent imputation of widespread bigotry without actual proof, in an overly-broad manner, serves no useful purpose.)

Moving on…

I could write more about this, but I’m well past the length of any prior post and running out of time to write more. I leave readers with a recommendation for further reading: the brief of the Cato Institute and others (most notably including the humorist P. J. O’Rourke and former ACLU president Nadine Strossen) in this case. Its discussion and examples are truly disgusting, an awful piece of work. And this is precisely what makes it so great.

Next time, various observations on oral argument. I still have writing to do here, so this might slip a day or two. Not clear. But right now I’m still aiming for it to go live tomorrow.

Yesterday I discussed government speech, and Texas’s arguments that specialty plates are government speech that individuals can’t compel Texas to make. Today I discuss the First Amendment forum doctrine.

A reminder: yesterday’s disclaimer still holds. In fact this post is probably most likely to contain errors of all the posts in this series. Caveat lector!

Forums

The Supreme Court classifies places (physical and metaphorical) where the First Amendment applies, and freedom of speech requirements hold, in a few different ways. These places are called forums.

Not a forum

Some places aren’t forums. For example, most public television programs aren’t forums. In such places government may exclude particular viewpoints, topics, and content.

If Texas ran its specialty plate program as a contest, picking a few choices from a vast selection according to its own whims as occurs on public TV, it might not be a forum. (That might also make it government speech.) (Or maybe I’m grasping for a plausible example, and I’ve grasped wrongly. Hedge!) But Texas accepts basically anybody, so it’s a forum.

Traditional public forums

Some forums have always been open places of discussion: traditional public forums. These include public sidewalks and parks. Here, no restrictions on content or viewpoint are permitted (except a very small list). Government may impose reasonable content/viewpoint-neutral restrictions as to speech’s time, place, or manner. But in doing so it must further significant government interests, and restrictions must be narrowly written and leave open ample alternative channels for speech. For example: no use outside park hours, potentially you need a permit granted nondiscriminatorily, don’t exceed noise level limits, stay off grass being reseeded.

Specialty plate programs are a modern invention, obviously not a common-law forum historically open for discussion.

Nonpublic forums

Places that are forums that aren’t traditionally open, that government hasn’t opened to public expression, are nonpublic forums. Examples are courthouses and government buildings: generally, government property reserved for some particular use. Government can employ restrictions on content here, to further those particular interests. Otherwise, restrictions match those in traditional public forums (and particularly can’t restrict speech based on its viewpoint).

Texas invited everyone onto its license plates, opening them to public expression. So Texas’s specialty plate program is not a nonpublic forum.

Designated public forums (and limited public forums)

Finally we have locations not traditionally opened, that government has opened to some public expression: designated public forums. The restrictions applicable in traditional public forums are also applicable in designated public forums.

There’s also an additional sort of forum, sometimes viewed as a subset of the designed public forum, where the government limits speech to certain groups or topics: the limited public forum. A limited public forum may place restrictions on content, but it can’t restrict based on viewpoint.

The various forum definitions logically subdivide the set of all possible forums. (Although to be sure, there remains argument as to what subdivision the Court’s cases have actually recognized.) By process of elimination, Texas’s program must be a designated public forum, possibly a limited public forum.

Recap

Let’s check our work. License plate designs are not traditionally open to ideas, but Texas allows anyone to propose a custom plate design espousing practically any idea whatsoever. The ideas are legion: in-state and out-of-state colleges (even bitter rivals), college sports teams, and professional teams; corporations; non-profits; causes; war veteran status; the whimsical (“Rather Be Golfing”); and many others. The individual selects a specialty plate and displays it publicly. Moreover, Wooley v. Maynard indicates that individuals have First Amendment rights in what their license plates say. So Texas’s specialty plates are public expression, at the government’s invitation.

Texas’s specialty-plate program is a designated public forum, possibly a limited public forum. Hold the question as to which one — we’ll return to this later.

Tomorrow, a discussion of offensive speech.

Yesterday I discussed specialty plate programs in lower courts and the parties’ arguments in Walker v. Texas Division, Sons of Confederate Veterans. Today I begin to analyze the questions in the case.

But first, a disclaimer.

Disclaimer

The following is my understanding of First Amendment law, gleaned from years of reading numerous free speech opinions, summaries, and analyses. I’m generally confident in this explanation, but I may well have made mistakes, or simply missed nuance present in the cases but not in the summaries I’ve read. Please point out mistakes in the comments.

Of course, I really have no business trying to explain First Amendment jurisprudence, if I want it explained correctly. First Amendment law is incredibly complex. My haphazard reading will miss things.

But I’m barging ahead anyway, for a few reasons. First, I want to talk about this. Second, it’s fun to talk about it! Third, you don’t learn unless you’re willing to look like a fool from time to time. Fourth, the law is not this recondite, bizarre arcana that only lawyers and judges can understand. It may require some work to correctly understand laws, terms of art, rules of statutory construction, and relevant past decisions in the common law. But any intelligent person can do it if they make the effort.

And fifth, nobody with any sense will unconditionally rely on this as authoritative, not when there are far better places to look for the finest in free Internet legal advice.

Government speech

The “recently minted” government speech doctrine occupies an uneasy place in the realm of speech. For when government speech occurs, non-governmental speech open to First Amendment challenge is reduced. There must be some government speech: otherwise we’d absurdly conclude that the government’s World War II war-bond propaganda must be accompanied by anti-bond propaganda. Government programs often have viewpoints suppressible only in the voting booth. But this mechanism is sluggish and imperfectly responsive, and government speech’s discretion can be abused. So it’s best to be careful anointing government speech.

Certainly some license plates — the state’s default designs and designs ordered by the legislature — are government speech, even if they’re also individual speech under Wooley v. Maynard. In each case the government wholly chooses what it wishes to say, and that message is government speech. The individual’s choice to assist in conveying it, under Wooley, isn’t government speech.

Circularity

But Texas’s government-speech argument, applied beyond plates it designs itself, is laughable. The linchpin of Texas’s argument is that because they control the program, that makes it government speech they can control. This argument is completely circular! By starting from their control over the program’s speech, they’ve assumed their conclusion.

This doesn’t mean Texas is wrong. But their circular central government-speech argument can prove nothing. This logical flaw is blindingly obvious. Texas’s lawyers can’t have missed this. If they made this their lead argument, they’re scrambling.

Compelling Texas to speak?

Texas’s better argument is that vehicle licenses and plates are its program, implicating its right to speak or not speak under Wooley. But the First Amendment restrains government power, not individual power. And many courts (although so far not the Supreme Court) have held that government can be compelled to “speak” in accepting advertising in government-controlled places (public transit systems, for a common example). The problem is Texas voluntarily created a specialty plate program open to all for speech. No “compulsion” derives from a voluntary act.

Texas didn’t fully control the specialty plate program, but rather opened it to anyone with money. (As Chief Justice Roberts noted in oral argument: “They’re only doing this to get the money.”) It’s possible there’s government speech in Texas SCV‘s plate, perhaps the occasionally-proposed “hybrid” speech. But once Texas opens the program to all, it loses full control over what’s said.

How then do we consider specialty plate programs? What controls may Texas exercise? Now we must decide how to classify the specialty-plate program with respect to First Amendment-protected speech. What sort of forum for speech is Texas’s specialty-plate program?

Tomorrow, First Amendment forum doctrine.

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.

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 fully–contradictory 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.