What if the government made you rent a signboard from them—forced you to have it with you at all times, and then charged you for the privilege to put whatever message you want on it? What if the government then said that signboard was really theirs, and they had the right to approve or deny what you wanted to place on the signboard?
This isn’t what-if. It’s the License Plate wars (or Car Tag wars if you’re from the South) going on in the Supreme Court. Walker v. Texas Division, Sons of Confederate Veterans et al will decide whether a state has the right to deny a particular “special plate” with a logo or message, or if the state’s interest is purely financial. Oral arguments took place today, and the fun never stopped.
Justice Alito: Suppose Texas erected 500 electronic billboards around the State, and on those billboards they posted some government messages, wear your seatbelt when you’re driving, for example. But then at the bottom people could put a message of their choice. Would that be government speech?
Mr. Keller (speaking for the State of Texas): Justice Alito, I think the portion that the government had final approval authority and sole control over, that would be government speech. If the government, though, doesn’t have sole control or final approval authority over another portion, I think that could be —
The conversation now descends into the finer points of case law and Constitutional tests of “government speech.” Then this:
Justice Kennedy: Well, do you want do you want us to hold that because it’s government speech, the government can engage in viewpoint discrimination? Is that what I’m supposed to write?
Mr. Keller: That’s right, Justice Kennedy. And the Court has recognized that in Summum and in Johanns.
Justice Kagan: And does that have any limits, Mr. Keller? I mean, suppose somebody submitted a license plate to Texas that said, “Vote Republican,” and and Texas said, yes, that’s fine. And then the next person submitted a license plate to Texas and it said, “Vote Democratic,” and Texas said, no, we’re not to approve that one. What about that?
Mr. Keller: Yeah, Justice Kagan, I don’t think our position would necessarily allow that, but I think that doesn’t have
Justice Kagan: But why wouldn’t it allow that?
Mr. Keller: Because the Establishment Clause, the Equal Protection Clause, Due Process Clause, other independent constitutional bars could apply…
So, basically, Texas is holding that it can approve or deny anything on a license plate that it rents to a motorist, and then make money by selling additional “advertising” space, like practically every other state does, being selective in what it allows. But what standard should apply when a state decides? What if an atheist objects to a Christian message, or an abortion doctor objects to “Choose Life”?
Chief Justice Roberts had the funniest line:
Well, okay. What’s its policy between permitting “Mighty fine burger” place plates and, you know, “Pretty good burgers” plates?
And here’s the key: Texas has (by its own lawyer’s admission) 438 specialty plates, 269 of which are available to the general public. They’ve denied about a dozen plates, including a pro-life specialty plate. And Mr. Keller couldn’t articulate to the Court why those plates were denied. In other words: no standard but the Texas DPS’ own personal opinions are relevant.
I’m pretty sure that’s not going to sit well with the Supreme Court.
When the Court rules in June, we may find ourselves more limited in the designs permitted on plates…either every design will require an act of the state legislature (some states may already require that), or states may do away with the specialty plates entirely. I wouldn’t bet on that, because it makes money. Another option would be “anything goes” and that would indeed be colorful, but I wouldn’t bet on that either.