Six cases today from the Supreme Court, leaving eleven still on the docket. I’m only going to digest one of them for you all today because of my own time pressures: Walker v. Texas Division, Sons of Confederate Veterans. I’ll attempt to digest the other free speech case, Reed v. Town of Gilbert, tonight or tomorrow morning, so stay tuned if that one excites you more than the license plate sporting the suspicious-looking logo illustrated at the top left of this post.
The issue in Walker involves the license plate design that appears to the left, or a close variant thereof. If you click on the image to enlarge it, you’ll see that the octagonal logo on the left side of the plate centers around a design made up of a square version of the Confederate States of America’s naval jack and late-war battle flag, with the words “Sons of Confederate Veterans 1896” surrounding the flag logo, encased in a bronze or golden octagon reminiscent of a military medal.
The State of Texas does not want to print or issue these license plates. Today, the Supreme Court said, in a 5-4 vote with a rather quirky alignment of the Justices, that Texas doesn’t have to. Whether you think this means the “good guys” won or not in this case, the implications of the holding are a bit unsettling.
The Litigants and the License Plate
The Sons of Confederate Veterans (SCV) is a fraternal organization, founded in 1896 in Richmond Virginia, to follow in the footsteps of a similar organization made of the veterans themselves. Its avowed purposes are “[t]o encourage the preservation of history, perpetuate the hallowed memories of brave men, to assist in the observance of Memorial Day, and to perpetuate the record of the services of every Southern Soldier,” but ?not to create or foster, in any manner, any feeling against the North, but to hand down to posterity the story of the glory of the men who wore the gray.?*
John Walker III is the Chairman of the Department of Motor Vehicles Board, which issues license plates to vehicles licensed to regularly operate within the State of Texas. Like many states, Texas offers registrants the opportunity to pay extra money for specialty license plates, and the extra money is diverted partially to charities designated by the state and partially to fund state agency operations.
In its brief, SCV points out that the State of Texas seems not to be hugely shy about its Confederate heritage. A state holiday honors “Confederate Heroes Day,” consolidating celebrations of Robert E. Lee’s and Jefferson Davis’ birthdays. The Texas Capital has three monuments to Confederate soldiers, replica Confederate money and other souvenirs commemorating Texas’ time in the Confederacy is available for purchase at state-run stores, state buildings are named for Confederate leaders, and there is a marker embedded in the floor of the Capital building’s rotunda commemorating Texas’ membership in the Confederacy.
In 2009, the Texas chapter of SCV designed the plate at issue here. Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia all have similar plates with the SCV octagon logo. Maryland, North Carolina, and Virginia only began allowing the plates after the SCV successfully sued those states to issue the plates. Arkansas and Florida, both former Confederate states, do not presently offer SCV plates. SCV won a similar lawsuit against the state of Florida, but that state’s Legislature has been able to drag its feet on issuing the plate. No similar barrier exists in Texas, where the Legislature is not tasked with approving each individual plate design. So you can imagine why the SCV was confident as it headed into battle with the government of Texas.
In Texas, some plates are directly authorized by the state legislature. The Texas DMV also has been delegated authority to design plates, either on its own initiative or in response to an application from a nonprofit organization. And a private vendor designs specialty plates to be sold for profit. But, all plates must be approved by the Board of the Texas DMV. Petitioners’ brief, 4-5.
So, the Board of the DMV held a public hearing on the issue. It got mostly opposition from the general public and many politicians. Its members voted, 4-4, with one member absent, on the plates. Then it took additional testimony; the Governor and the leader of the Republican Party in the legislature politically signaled their opposition to the plate, and at a second meeting to reconsider, voted unanimously against issuance of the SCV plate. SCV sued, and initially lost at the district court level, on the grounds that the Board’s decision was rational and not based on discrimination amongst viewpoints. On appeal, a divided panel of the Fifth Circuit Court of Appeals reversed, finding that the license plates constituted private speech, not speech by the government, and that excluding the SCV plate was, contrary to the District Court’s holding, based upon the state’s hostility to the views expressed in the plate.
When I first saw the case on SCOTUS’ docket, I immediately thought of a case from 2007 authored by Justice Samuel Alito named Pleasant Grove City v. Summum, 555 U.S. 460. In Pleasant Grove, practitioners of a new age religion sought to erect, at their own expense, a pyramid-shaped monument containing their religion’s teachings (the “Seven Aphorisms”) in a public park in the city of Pleasant Grove, Utah. They pointed out that the city had permitted Christian churches to do the same, including the erection of a statue depicting the Ten Commandments. They also pointed out that the park was very likely a “traditional public forum” in which the government could not discriminate between different points of view expressed as part of the free speech to be exchanged there. But Justice Alito found that permitting the erection of monuments in such a public space was speech by the government itself, and the government could freely pick and choose, at its own discretion, what speech it would or would not engage in.
Open and shut, right? If a permit for building a monument in a public park is governmental speech, over which the government has plenary discretion, then obviously a license plate — bearing the state’s name, printed at the state’s behest, required of the state by all vehicle owners within the state, and sold through a state’s governmental corpus — must surely be governmental speech, and Texas can print or not print whatever plates it damn well pleases, thank y’all very much!
But, that doesn’t consider the seemingly even more on point case of Wooley v. Maynard (1977) 430 U.S. 705. George Maynard, a Jehovah’s Witness who believed he was forbidden by his religion from announcing his willingness to give his life for the state, objected to the content of New Hampshire’s state motto, “Live Free or Die.” By state law, the phrase appeared on all license plates issued by New Hampshire. Maynard wanted to be able to use black electrician’s tape to block off the motto, and the state of New Hampshire objected to this overt shirking of its fiercely libertarian words and indicated that this would constitute an infraction and Maynard would be liable for a ticket if he did it. So Maynard sued… and won. The Supreme Court held that New Hampshire could not compel Mr. Maynard to use his own car “as a ‘mobile billboard’ for the State’s ideological message.”
It’s perhaps worth noting that a generally conservative Justice, Samuel Alito, wrote the majority opinion in Summum, and the Justice then thought the most conservative of his Brethren, William Rehnquist, wrote the dissent in Wooley. So this suggests that conservative jurists tend to view the “government speech” doctrine expansively, and more liberal jurists would tend to view the license plate on a private car as private speech and therefore beyond governmental regulation.
But here, the speech is likely to offend a more liberal jurist just a bit faster than it would a conservative one (although I do note that the political opposition to the SCV was thoroughly bipartisan), and the wheel of history gets this permutation of facts served up with a Court that is very closely divided ideologically. And of course, there does seem to be two prominent Supreme Court precedents at odds with one another.
This case, in other words, is a spicy meat-ball for Court watchers and Con Law geeks like me.
The SCV Goes For Broke
Even more interesting, SCV’s brief describes its vision of the dispute:
The specialty plates at issue here are either private speech or government speech. This is a matter of first impression in this Court. If they are private speech, the DMVB cannot discriminate based on viewpoint, and offensiveness is an impermissible standard. If they are government speech, the government is free to say what ever it wants, subject to the Establishment Clause, but is not constrained by the Free Speech Clause. Respondents’ Brief, page 12.
That, my friends, is an all-or-nothing stake: if the Court were to take up SCV on that framing of the case, then a decision that the state itself is engaged in speech through the license plate will mean curtains for the SCV having a plate of its own. It seems like a shoot-from-the-hip sort of litigation tactic to put, right there in your own brief, the single finding that a court needs to make in order for you to lose.
But after spending a whole lot of time and energy citing to the record on appeal about how much Texas seems to like celebrating its Confederate history to underline what an arbitrary aberration this license plate thing is, SCV gets to the core of its argument — a private individual has to choose to buy a specialty plate; they pay extra fees for the specialty plate. No one is going to do that unless they want to make the statement that the plate makes, whether that statement be “Choose Life,” “Keep Texas Beautiful,” or “Special Olympics Texas.” Consequently, display of a specialty plate, notwithstanding the fact that some kind of plate is mandated by the state, is individual speech and not state speech. When you go out of your way to display something like that, it’s something you’re saying, not something the state is saying.
If you buy that argument — and in my opinion, it’s a substantial argument — then the license plate really is private speech, and the all-or-nothing framing of the legal issue by SCV winds up looking like a pretty good gamble. They’re basically gambling that Wooley is still good law. About all that’s going against it is that Texas disapproved of this message for its own reasons, and if the plate is even partially state speech, then Texas has discretion and doesn’t have to tell anyone why it doesn’t want to say that thing, and if you want to advertise your sympathies for the SCV then you can buy a bumper sticker.
The Government Speech Doctrine Wins Out
But Justice Stephen Breyer, writing for the Court, ruled to reverse the Fifth Circuit. Texas gets to to choose, because Texas, not the SCV, is the entity that issues the license plate. SCV’s go-for-broke strategy, for all of its being a good gamble backed up by a string of relatively recent successes, failed. In essence, Breyer says that Summum is basically the rule here:
- While the government does not have an absolutely free hand when it engages in conduct that includes speech, it is free to promote its own policies and the viewpoints it favors. The principal check on what the government says is political, not legal. Slip op. at 5-6.
- Even when the government accepts private assistance towards making something that becomes public, it is the government that is speaking, not the private party assisting the government (for instance, by donating a monument, or submitting a license plate design proposal). Slip op. at 7-9.
- The “market” for specialty license plates is not a “traditional public forum” in which the government must tolerate many diverse viewpoints and content in speech, even that of which it disapproves. Slip op. at 13.
Therefore, just as Texas cannot require SCV to convey “the State’s ideological message,” SCV equally cannot force Texas to include a SCV’s pro-Confederate message on Texas’s license plates.” Syllabus, slip op. at 3 and 17-18. This conclusion has the rhetorical advantage of symmetry, the veneer of equality and balance as between citizen and state.
But is symmetry and balance, for its own sake, either justice or the best application of the Constitution given these facts?
A Substantial Dissent
The dissent, by Justice Alito, engages in some rather creative play with the use of the second person:
The Court holds that all the privately created messages on the many specialty plates issued by the State of Texas convey a government message rather than the message of the motorist displaying the plate. Can this possibly be correct?
Here is a test. Suppose you sat by the side of a Texas highway and studied the license plates on the vehicles passing by. You would see, in addition to the standard Texas plates, an impressive array of specialty plates. (There are now more than 350 varieties.) You would likely observe plates that honor numerous colleges and universities. You might see plates bearing the name of a high school, a fraternity or sorority, the Masons, the Knights of Columbus, the Daughters of the American Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver.
As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games—Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government? Dissent op. at 1-2.
One must concede that Justice Alito has a point, albeit one made with an informal, decidedly non-scholastic voice. (Nor would it have been difficult to make exactly the same point using more succinct, formal language: “A reasonable, ordinary person observing the diversity of messages on the various specialty plates would not conclude that the state of Texas was delivering a message but rather would attribute those messages to the drivers or owners of the vehicles bearing the diverse license plates.”)
Alito then, as intellectually he must, offers his manner of distinguishing the governmental speech in the Summum case (recall that he wrote the majority opinion in Summum) from the SCV license plate: monuments are traditionally created by the government as a public declaration of some sort; license plates have no such history nor any such hold on the common imagination. Monuments are by their nature permanent, stationary, and occupy governmental real estate — not so for license plates, which are subject to change substantially at the discretion of the vehicle registrant, inherently mobile, and placed on private property. And because monuments are on public land, and there is only so much public land to go around, the government must of necessity choose what goes there, but the amount of available space for anyone to make statements on license plates is determined by the number of private registrants, who under the prevailing state law are the ones who get to determine which of the available plates are used. Dissent op. at 9, 12-14.
Justice Alito concludes his dissent by acknowledging that the SCV logo will indeed be controversial, but noting that other Texas plates, particularly the “Choose Life” plate, might also be the subject of controversy and strong opinions — he indicates that the state of New York rejected a plate with a similar message precisely because of the controversy inherent in the message. Then he publishes six pages of images of the various and diverse specialty plates that the state will issue.
How I Would Have Ruled
I suppose it’s pretty obvious by now that I think Justice Alito’s reasoning is stronger than Justice Breyer’s in this case. I’d have voted in favor of SCV.
Seems to me that the license plates represent a hybrid of public and private speech. The only public speech that a license plate makes to me is “This is a vehicle registered in the state of Texas.” From there, the elective nature of the specialty plate is something that is pretty clearly the choice of the registrant, not the choice of the state. It’s difficult to conclude that the State of Texas did anything other than pick and choose amongst messages based on the viewpoint of those messages. And as much as I might disapprove of a pro-Confederate message, if there is a substantial element of private speech involved, and no one will be immediately harmed by it, the state ought to get out of the way and let individual citizens do what they want, however objectionable the rest of us find it.
So does that mean the state has to allow Ku Klux Klan or Nazi plates? Yeah, probably. Hopefully, it’s obvious that doesn’t mean I’d like it if someone demanded such a plate — but if the state is going to let anyone submit design applications and then prove that “X” number of people would buy a plate like that, then it needs to apply those criteria uniformly, objectively, and non-arbitrarily. Using the political process to judge the artistic merit of a plate design is inherently arbitrary. Opening up this process to public input means, inherently, the public should get to do what it wants with it even if the government isn’t happy about it.
So while I might have thrown in some dicta expressing reservations about the content of a pro-Confederacy plate, it’s simply not for a judge or an appointed official to opine about whether private speech is desirable or not. When a decision seems close, like this one based of the hybrid nature of the speech, the general rule should be to opt for the rule that increases individual freedom. SCV may not have been the most sympathetic of speakers in whose favor such a decision could be rendered, but popular, pleasant speech is not what the First Amendment is there to protect.
A Tailplate Thought about Clarence Thomas
And here’s an interesting tidbit for Court watchers: Justice Clarence Thomas sided with the majority in this case. It’s pretty unusual for Justice Thomas to side with the traditionally liberal faction of Justices Breyer, Ginsburg, Sotomayor, and Kagan unless Thomas’ closest ideological Brother, Antonin Scalia, also joins. But Thomas and Scalia split in this case. Thomas ruled in favor of the state and against the private actor claiming an individual right of free speech. Why?
Well, one explanation would have been that Justice Thomas does not believe that the First Amendment applies to states at all. By explicitly referencing “Congress” as the organ of government whose powers are restricted, Thomas interprets that to not mean “the President” or as applicable here, “a state.” So he might have thought that the question of whether the state has political discretion to discriminate on the basis of viewpoint was strictly a question of Texas law — and it is not for the Supreme Court of the United States, but rather the Supreme Court of Texas, to make the final determination of how to apply the Texas Constitution’s guarantees of free speech (Tex. Const. Art. 1 § 8) apply to the facts of this case.
But Justice Thomas did not take the time or effort to issue even a one-page opinion articulating this reasoning (which he could easily and consistently with his prior jurisprudence have done). Instead, without any explanation at all, he joined the majority’s decision resolving the matter by way of the government speech doctrine. Because of that, it’s a majority opinion that changes the law, not a plurality decision that simply renders a judgment. The Summum “government speech” doctrine is stronger today than it was yesterday: if the government is speaking at all, the government gets to decide what is said, for its own arbitrary reasons, subject only to the political and often very indirect control of democracy.
Sons of Confederate Veterans, know that I weep not for your censored license plate. I do, however, furrow my brow in concern about the broad sweep of the discretion of unelected bureaucrats trumping private speech that this case represents.
* I will leave for the Reader to form her own opinion about the normative worth of such an organization. The Reader may color me “skeptical” on that point, although whether I like or dislike the SCV, approve or disapprove of its message, is quite irrelevant to my evaluation of this case.
Image credits: originally from Texas Department of Motor Vehicles, by way of Los Angeles Times and Associated Press, official U.S. Supreme Court photographs. Note that the image also appears in the appendix of the Supreme Court’s majority opinion published today.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.