Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience…. To be ‘cured’ against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.

Frequently a [proposition] will [present itself], so to speak, in sheep’s clothing: [its undesirable consequences are] not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

An excellent and concise explanation of why the First Amendment, and freedom of speech more broadly and more generally, matters to me:

Much of the Court’s opinion is devoted to deprecating the closed mindedness of our forebears…. Closed minded they were–as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly.

It’s taken years of following SCOTUS particularly, and the legal sphere more generally, for me to realize that of all the issues out there, freedom of speech is the one I care about most. Without it, we can’t actually argue about all the other issues that matter, persuading each other, learning from each other, and so on. It is necessary for representative democracy to be able to freely discuss everything and attempt to persuade each other, for us to have any chance at sound policy. The late Justice Scalia gets it exactly right in this quote.

(Speech implications aside: I have no immediate opinion on the legal question in the case as I only discovered it today. For the policy question — which too many people will confuse with the legal question — I would agree with the case’s outcome.)

Rest in peace, Justice Scalia. I’ll miss your First Amendment votes, from flag burning to content neutrality and forum doctrine to (especially, for the reasons noted above) political speech (if not always), among the votes you cast and opinions you wrote. Others less inclined to agree with you might choose to remember you (or at least should remember you) as the justice whose vote ultimately struck down California’s Proposition 8, even as (especially as) you considered the legal question argle-bargle. As Cass Sunstein recognized, you were “one of the most important justices ever”, and the world of law will be worse without you.

(In the spirit of freedom of speech, I generally post all comments I receive, as written. I hope to do the same for this post. But if I must, I’ll moderate excessively vitriolic comments.)

Last time I gave my last pre-opinion thoughts on the Texas specialty license plate case, Walker v. Texas Division, Sons of Confederate Veterans, whose oral argument I attended in March. The other case I saw that day, San Francisco v. Sheehan, was recently decided. Today I discuss the opinions in that case.

Ninth Circuit overturned, film at 11

My dismissive suggestion that San Francisco would win because Ninth Circuit and qualified immunity was on target. The Court ruled, 6-2, that the officers should receive qualified immunity — giving the win to San Francisco.

The Americans with Disabilities Act and accommodating the disabled

Recall that Justice Scalia and others alleged that San Francisco had improperly changed its argument from the time it got the Supreme Court to hear the case, to when it presented its formal argument. San Francisco initially argued that the Americans with Disabilities Act categorically didn’t require officers to accommodate armed and violent suspects who are disabled. But then later it argued that the ADA didn’t apply specifically to Sheehan, because she had posed a “direct threat”.

Every justice agreed that San Francisco’s tactics precluded the Court from deciding whether the ADA applied to armed and violent disabled suspects. So that’s still an open question awaiting a case properly presenting it.

Disposing of the rest of the case

But then what happens to the case and its remaining questions, if the ADA question is dismissed? The six-justice majority decided that the officers deserved qualified immunity. Justice Scalia, joined by Justice Kagan, argued that San Francisco shouldn’t be given a win for “snookering” the Court, when the Court wouldn’t have answered the qualified immunity question if presented alone. Instead the Court should have dismissed the entire case, leaving San Francisco to its loss in the Ninth Circuit.

Thoughts

I previously wasn’t entirely certain that San Francisco had changed its argument. But in light of the Court’s unanimous agreement on the matter, and in light of other commentary, it seems clear that it did.

I wasn’t aware the Court could dismiss “half” a case; that seems reasonable for the ADA question. For the remainder of the case, I think I lean toward Scalia’s and Kagan’s view. It’s unfair to parties in cases to allow one side to make an argument, then not be held to that argument come decision time. But I didn’t trace the majority’s cites far enough to conclude that its position was definitely wrong, so count my agreement with Scalia and Kagan as only tentative.

Next time, discussion of the ultimate opinion in Walker v. Texas Division, Sons of Confederate Veterans. The case is still pending, so I can’t yet say when that post might be ready.

Two months ago I began a blog post series about my recent visit to the Supreme Court for oral arguments in two cases. San Francisco v. Sheehan concerned police use of force in San Francisco; Walker v. Texas Division, Sons of Confederate Veterans concerned Texas’s specialty license plate program and its restrictions on permissible designs. Seven weeks ago I discussed oral argument in the Texas license plate case. Today I return for final thoughts on the Texas license plate case, in which a decision is expected any day now — perhaps even in an hour today.

(Why the seven-week delay when I’d promised merely “a day or two”? The day of the last post, I underwent [relatively] minor surgery for pain from a high ankle sprain, that hadn’t fully responded to approaches short of arthroscopic ankle surgery. [The surgery seems to have been successful, but I probably can’t be sure til I regain full ankle flexibility/strength. I can walk almost entirely normally now, but strength and flexibility are still noticeably diminished, albeit improving daily.] Although I had spare time immediately afterward, I wasn’t particularly inclined to post-writing, and as time passed I never got back in the groove. Time winding down before the ultimate opinion has put me back on track. 🙂 )

Back to forum analysis

Before I tackled oral argument, my previous posts discussed offensive speech. I left one question hanging: what sort of forum is Texas’s specialty license plate program? Is it a designated public forum or a limited public forum?

This turns out not to matter. To judge offensiveness requires adopting a particular viewpoint, but regardless which sort of forum Texas specialty plates are, restrictions must be viewpoint-neutral. As for Texas’s argument that judging offensiveness is “objective” and viewpoint-neutral, this plainly must fall in light of the Court’s repeated insistence that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive”.

Censoring based on offensiveness is not viewpoint-neutral. But in either a designated public forum or a limited public forum, restrictions must be viewpoint-neutral. So it doesn’t matter which Texas’s program is: prohibitions based on offensiveness must fall.

My opinion

On Texas

If you’ve paid any attention to this series, it should be obvious that I think Texas must lose. When Texas opened up a forum for speech on plates and invited essentially everyone onto them, they lost control over what can be said there. An amicus brief from the Rutherford Institute best captures my thoughts on this case. (Which isn’t to say I disagree with other briefs supporting Texas SCV, simply that the approach here best matches my reasoning.)

Other specialty plate programs

So much for Texas’s program. What about programs in other states? Such disputes previously have centered on Confederate flags (by other SCV divisions), but perhaps the most prominent topic of controversy has been adoption/abortion/pro-life/pro-choice advocacy. Some states have explicitly ordered designs taking sides in that controversy, or have approved such designs submitted by private parties. Inevitably the other side files suit for a chance to say its piece. What should happen? I think it depends on the contours of the program.

If a state legislature passes a law ordering a design be produced, or delegating that to the state DMV, that legitimately does seem to me to be government speech. Private parties have no right to butt in to demand alternative designs. The place to challenge such programs is in the voting booth, not the courthouse. The same is true if privately-submitted designs receive legislative approval in a pick-and-choose process: the available designs are government speech (although the designs themselves may be hybrid speech).

On the other hand, if a state provides a specialty plate program in which private parties may request designs, and those designs aren’t explicitly limited to particular topics, the specialty plate program is a designated public forum in which permitted private parties can say whatever they want. (Subject to the usual traditional public forum restrictions.) (This is Texas’s program.)

If the state provides an open program with restrictions, then we have a limited public forum. A specialty plate program along these lines might or might not be able to exclude speakers. For example, many Texas designs recognize particular colleges. A state program allowing only colleges to submit designs, consisting of a color scheme and a logo, wouldn’t be required to accept a specialty plate on some other topic, or from a non-college. A specialty plate program that allowed, say, “non-political” designs only would be a much closer question that would probably swing the other way. (Who’s to say what’s political and what isn’t, “viewpoint-neutrally”?) But if criteria were objective and viewpoint-neutral, restrictions might be permissible.

Justice Kennedy’s concern that striking Texas’s program “curtails” speech

One slightly disconcerting moment at oral argument came after Texas SCV argued that Texas pretty much couldn’t prohibit anything on specialty plates. With minor adjustments for readability:

Justice Scalia

So you’re — you’re really arguing for the abolition of Texas specialty plates, aren’t you? I couldn’t make a better argument for — in that direction than — than what you’ve been doing.

Mr. George

Well, we had got along without it a long time before we got it, and we can get along without it again.

Justice Kennedy

So in a way, your argument curtails speech?

I’m not sure whether this ever received an answer. But the answer I’d have given is simple: “We call Texas’s bluff.” As I’ve noted, other states have had to respond to court cases in favor of unliked speakers: on license plates, in Adopt-A-Highway programs, in municipal transit ad programs, and so on. The states and cities operating these programs generally haven’t shut down the programs to prevent undesirable speakers from speaking, and many don’t even adjust program parameters to work around court decisions. No matter what it might bluster, Texas won’t shut down its program if it loses. Only very few ill-mannered states are likely to pick up their toys and leave, rather than share them with speakers they don’t like.

Predictions

My prediction is that Texas will lose unanimously. The justices generally were somewhat taken aback by the sprawling assertions made by Texas SCV, but that seems only natural when good people contemplate potentially allowing vile, racist speech. The justices, as judges, ultimately must be, and are, less susceptible to these emotional tuggings than it might seem in the moment of argument. This is a very pro-speech Court; I think they’ll have very little trouble getting over their prejudices against speech they might not like.

Only Justice Scalia seemed to have particular sympathy for Texas, and for Texas being permitted to run its program however it wants. I think he viewed specialty plates and programs as mostly one giant exercise in frivolity: “Why aren’t bumper stickers good enough?”, “Why does anyone care what’s on their license plate?”, to put words in his mouth. There’s something to that: if we returned to a world where license plates were solid-color letters on a solid-color background, it’s hard to say anyone would really be much worse off. But just because a particular means of speech seems unbelievably stupid doesn’t justify shutting it down. I don’t think Justice Scalia would hang up on that in an opinion.

Ultimately I think the open nature of Texas’s invitation, combined with the standardless system by which Texas can reject designs, will sway him against Texas, even if he thinks the entire controversy is a waste of time. Justice Scalia was one of the votes striking down statutes criminalizing flag-burning on the basis of its offensiveness. I don’t see how he would abrogate that position on offensive speech just because Texas nominally exercises “effective[] control” over the specialty license plate program but doesn’t specifically cabin designs to limited topics.

Next time I return to San Francisco v. Sheehan to discuss the opinion in that case. And unlike last time, I’ll guarantee this discussion will issue tomorrow. (Barring Dreamhost downtime, server issues, Judgment Day, &c.) 🙂

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!