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.

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.

Yesterday I began a series of posts discussing the Supreme Court cases I saw in my latest visit for oral arguments. Today I discuss San Francisco v. Sheehan

San Francisco v. Sheehan concerned a messy use of force by police in San Francisco in responding to a violent, mentally-ill person making threats with a knife — an unhappy situation for all. Very imprecisely, the question is whether the officers used excessive force to subdue an armed and violent, disabled suspect, knowing that suspect might require special treatment under the Americans with Disabilities Act or the Fourth Amendment while being arrested. (Of course, whatever baseline those laws require, police often should and will be held to a higher standard.)

The obvious prediction

Mildly-interested readers need know but two things to predict this case’s outcome. First, this case arose in the Ninth Circus Circuit: a court regularly with very outlier views. And not solely along the tired left-right axis: when the Court often summarily reverses the Ninth Circuit without even hearing argument, partisanship can play no role. Second, Sheehan must overcome qualified immunity, which for better and worse protects “all but the plainly incompetent” police against lawsuit. These facts typically guarantee San Francisco will win and Sheehan will lose.

That aside, one observation struck me. Stereotyping heavily, it’s surprising that San Francisco in particular would argue, to use overly-reductive descriptions, “for” police and “against” the disabled. Usually we’d assume San Francisco would stand by, not against, underprivileged minorities.

“Bait and switch”

That expectation makes this letter from advocacy groups requesting San Francisco abandon its appeal very interesting. At oral argument Justice Scalia interrupted San Francisco’s argument before it even started to bluntly charge the city with changing its argument, between its request for the Supreme Court to hear the case and when San Francisco presented its argument for why it should win — even calling it a “bait and switch”. Minutes later, Justice Sotomayor echoed his views (in more restrained terms).

When requesting Supreme Court review, San Francisco argued that the ADA “does not require accommodations for armed and violent suspects who are disabled” — during an arrest, all such suspects may be treated identically regardless of ability. In response the Court agreed to decide “whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect” while bringing him into custody.

But San Francisco’s written argument instead argued, “Sheehan was not entitled to receive accommodations in her arrest under Title II of the [ADA]” because her armed violence “posed a direct threat in the reasonable judgment of the officers”. In other words, San Francisco had changed from arguing no armed and violent, disabled suspect deserved an ADA accommodation, to arguing Sheehan particularly deserved no ADA accommodation because she appeared to be a direct threat.

The followup

Thus San Francisco’s argument derailed, on this and other points. Several minutes in Justice Kagan even prefaced a question with, “And while we are talking about questions that are not strictly speaking in the case,” to audience laughter. A Ninth-Circuit, plaintiff-friendly, appeal-by-the-government case is usually a strong bet for reversal, but San Francisco seems to have complicated its own case.

The Court could well dismiss this case as “improvidently granted”, preserving the lower court’s decision without creating precedent. Oral argument raised the possibility, but a month later it seems unlikely. San Francisco’s still likely to win, but the justices’ frustration with San Francisco’s alleged argument change might not bode well when San Francisco next wants the Court to hear a case.

Back to the letter

Again consider the letter urging San Francisco to abandon its appeal. Suppose the letter’s authors first privately requested San Francisco drop the case, resorting to open letter once those overtures failed.

But what if the letter wasn’t a complete failure? Could San Francisco have changed its argument to “split the baby”, protecting its officers and attempting to placate interest groups? The shift couldn’t have responded to just the letter, sent one day before San Francisco made its final argument. But it might have been triggered by prior behind-the-scenes negotiation.

This fanciful possibility requires that the open letter not be San Francisco’s first chance to hear its arguments. It further grants the letter’s authors extraordinary political power…yet too little to change San Francisco’s position. Occam’s Razor absolutely rejects this explanation. But if some involved interest group promptly tried to dissuade San Francisco, the letter might have been partially effective.

Final analysis

Are Justice Scalia’s and Sotomayor’s criticisms reasonable? I didn’t fully read the briefs, and I don’t know when it’s acceptable for a party to change its argument (except by settling the case). It appears to me that San Francisco changed its argument; my sense is doing so but claiming you didn’t is the wrong way to change one’s position. But I don’t know enough to be sure of either conclusion.

As I said yesterday, I didn’t fully prepare for this argument, so I hesitate to say too much. And frankly the messy facts make me glad I don’t have to choose a position. So I’ll leave my discussion at that.

Tomorrow I continue to the primary case I came to see, a First Amendment case.

A month ago, I visited Washington, D.C. to see (unfortunately only a subset of) friends in the area, to get another Supreme Court bobblehead (Chief Justice Rehnquist) — and, naturally, to watch interesting Supreme Court oral arguments. I attended two arguments on March 23: the first for a First Amendment case, the second for (roughly) a police use-of-force case.

I did relatively little preparation for the police use-of-force case, limiting myself to the facts, questions presented, and cursory summaries of the parties’ arguments. My discussion of that case will be brief.

But the other case (for which I amply prepared) will receive different treatment. First Amendment law is extraordinarily complicated. A proper treatment of the case, its background, legal analysis, and oral argument discussion well exceeds a single post.

So a post series it is. Tomorrow: the police use-of-force case.