A Strange and Confusing Day For Free Speech

Today, the Supreme Court released six opinions in pending cases this term- four involving criminal justice and two involving free speech.  In a strange alignment where the liberal wing of the Court picked up the vote of the most conservative member of the Court- Clarence Thomas- the Supreme Court ruled that the State of Texas could bar the Sons of Confederate Veterans from displaying the Confederate flag on specialty license plates.  The main thrust of the Court’s reasoning is that a license plate conveys government speech since the word “TEXAS” appears on all such plates, along with the unique vehicle identification numbers and letters.  Because it is, in effect, a government mini-billboard, the State is not subject to the provisions of the First Amendment’s Free Speech Clause.  In short, because the license plate conveys government speech- the rationale the majority reached- they could control the content of that speech.

The majority is effectively saying that if the Sons Confederate Veterans had won and if Texas had to allow the Confederate flag on license plates, the State of Texas would be endorsing a symbol that some may find offensive.  It should be noted that other states allow the SCV to display heir logo, which includes a Confederate flag, on license plates and there have been no examples of hordes of people complaining of their offensiveness.  This rationale and view is strange and Justice Scalia in his dissent lists several incidences where these specialty license plates could in no conceivable way be considered government speech or endorsement.  For example, if someone displayed a plate with some reference to Notre Dame, is the state endorsing Notre Dame over any state university?  Are they endorsing a fraternity or sorority, or even a fast food restaurant by allowing someone to purchase a license plate with these messages or logos?  Scalia is arguing that the message is not one of government speech, but private speech.  And if it is private speech, then it cannot be restricted.  Because the message is placed on a government-issued piece of metal, however, the majority decides otherwise.

There are two ramifications emanating from this case.  The first is that it establishes precedent that license plates are government speech venues and that the government can therefore restrict the messages on license plates, or they can proscribe a message on a license plate.  Most states include a state motto or state nickname.  But suppose a state makes a conscious decision to make a statement of some controversy and place it on their license plates.  They would be, after all, conveying government speech.  And suppose that statement was “Choose Life” or some other more adamant pro-life statement (as was done in North Carolina).  This decision opens the doors for such messages and would preclude messages of a personal nature contrary to the state’s message on specialty license plates.

Secondly, there are numerous state colleges and universities.  Are campus billboards at such institutions now subject to speech restrictions at the whim of the campus administration?  Imagine a state college that disallows advertisements or announcements for a speaker with whom the state or the college disagrees.  After all, the state bought and maintains that billboard- just as it “built, maintained and regulated” the license plates in Texas.  One can imagine the potential for chilling free speech and expression becoming a reality.

I do not know Justice Thomas’ decision to join the liberal wing of the Court here since he agreed with the Breyer opinion in full and offered no concurring opinion.  We are left only with the belief that he agrees with the outcome and rationale 100%.  Certainly, Thomas is a prolific writer on this Court given his dissents (many times the lone dissenter) so it is not as if he did not have the opportunity to nuance the opinion.  Perhaps he was under the belief that he was striking a blow in favor of state rights in that they can convey messages on state-issued license plates thus clearing the way for North Carolina to issue pro-life license plates.  But if that is the motivation, given the many venues a state has to convey a message, then this sets a bad precedent for states to ban speech in those venues when they find that speech offensive using no objective criteria other than it “may offend some people.”   In effect, the state becomes arbiter of acceptable speech and that is not a good thing.  The State of Texas invited personal messages on license plates not because they supported free speech, but to make money.  Once that invitation was granted, the license plate became a venue by which to display a personal message, not a state message.  Commonsense dictates such.  If one sees a SCV bumper sticker on a car, one assumes the driver supports the SCV.  Likewise with the license plate: the driver of that car supports the SCV, not the state.