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.

Yesterday I discussed the second Supreme Court oral argument I attended in a recent trip to the Supreme Court. Today I describe the basic controversy in the first oral argument I attended, in a case potentially implicating the First Amendment. First Amendment law is complicated, so this is the first of several posts on the case.

Texas specialty license plates

State license plates, affixed to vehicles to permit legal use on public roads, typically come in one or very few standard designs. But in many states you can purchase a specialty plate with special imagery, designs, coloring, &c. (Specialty plates are distinct from “vanity” plates. A vanity plate has custom letters and numbers, e.g. a vegetarian might request LUVTOFU.) Some state legislatures direct that specialty designs delivering particular messages be offered. And some state legislatures enact laws that permit organizations or individuals to design specialty plates.

The state of Texas sells both legislatively-requested designs and designs ordered by organizations or individuals. (The latter kind require an $8000 bond, covering ramp-up costs until a thousand plates are sold.) The DMVB evaluates designs for compliance with legislated criteria: for example, reflectivity and legibility concerns. One criterion allows (but does not require) Texas to reject “offensive” plates.

The department may refuse to create a new specialty license plate if the design might be offensive to any member of the public.

An “offensive” specialty plate design

Texas rejected one particular design for just this reason. As they say, a picture is worth a thousand words:

For those unfamiliar with American imagery: the central feature of the Texas SCV insignia is the Confederate flag. Evoking many things, but in some minds chiefly representative of revanchist desire to resurrect Southern racism, Jim Crow, and the rest of that sordid time. Such minds naturally find the Confederate flag offensive.

Is the SCV actually racist? (Assuming you don’t construe mere use of the flag as prima facie evidence.) A spokesman denies the claim. Web searches find some who disagree and others who believe it is (or was) of divided view. I find no explicit denunciation of racism on the SCV’s website, but I searched only very briefly. Form your own conclusions.

Tomorrow, specialty plate programs in the courts, and the parties’ arguments.