THE BLOG

Texas License Plates, the Confederate Flag and the Supreme Court

06/20/2015 02:23 pm ET | Updated Jun 20, 2016

Back in March, on the day the Supreme Court heard arguments in Walker v. Sons of Confederate Veterans, I wrote a piece examining the "intriguing" First Amendment issue posed by the case. See here.

This week, the Court decided Walker in a sharply-divided five-to-four decision. Like many states, Texas permits drivers to design specialty license plates bearing messages they want to promote. The states that do this do it largely as a way of generating income because they charge for the privilege.

Texas has approved hundreds of different messages on its license plates, including "Choose Life" and "Fight Terrorism," but the Texas Board of Motor Vehicles balked when the Sons of Confederate Veterans sought to include an image of the Confederate flag on the plate that it had designed. The Board denied this proposed license plate under the authority of a provision that authorized it to exclude messages that were likely to offend others. Finding that this was true of the Confederate flag, it rejected the proposal.

The question was whether this was unconstitutional. As I explained in March, the central issue was whether the messages on the license plates should be characterized as "government speech" or as "private speech."

If the messages are deemed "private speech," then the exclusion of the proposed Confederate flag license plates was clearly unconstitutional. This is so because, as a general rule, the First Amendment prohibits the government from disadvantaging a speaker because his message might offend others. As the Supreme Court observed in 2011, "if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

But there is a competing argument. Although the government cannot constitutionally discriminate against a message because it is offensive to others, the government itself is permitted to speak in its own voice without having to provide equal voice to those who disagree with it. This is the "government speech" doctrine.

Under this doctrine, the government can constitutionally erect a statue in a public park celebrating the life of Martin Luther King without also having to erect a statue celebrating the Ku Klux Klan. The government can put its own message on the state's license plate stating "Texas is Great" without also having to put the message "Texas Sucks" on its license plate as well. The state can promote the message that people should not smoke without also having to promote the message that people should smoke. And so on.

Thus, the critical issue in Walker was which approach should apply. Are the messages on specialty license plates "private speech" or "government speech"? In March, I posed the question, but did not offer my own resolution.

Writing for the majority, Justice Stephen Breyer, joined by Justices Thomas, Ginsburg, Sotomayor and Kagan, concluded that the messages on the specialty license plates are government speech. This is so, he reasoned, because the government itself chooses which messages to permit, because license plates are clearly understood to be government property that is designed primarily to convey information for the government, and because people want their messages on these license plates in part because they want the government's endorsement of their message.

Writing for the dissenters, Justice Samuel Alito, joined by Chief Justice Roberts and Justices Scalia and Kennedy, insisted that the messages on the Texas license plates were private speech. This was so, he argued, because Texas approved roughly 95 percent of all messages submitted for approval, and because most of the approved messages clearly were not intended or understood to be endorsed by the state -- for example, messages celebrating sports teams of universities in other states that compete with Texas universities, messages advertising a wide range of commercial businesses (such as realty companies), and messages celebrating such activities as golf, tennis and bowling. As Alito convincingly argued, there is simply no reason to believe that such messages were in any meaningful or plausible sense messages of the state of Texas.

As Alito put the point, what is really happening here is that Texas, like other states with similar programs, is generating substantial income by selling access to these little, traveling billboards -- unless Texas finds the message offensive.

Why are people willing to pay for the right to put their message on a license plate, rather than just put it on a bumper sticker? Justice Breyer suggests that it is because they want the state's endorsement of their message, thus rendering their message government speech. Justice Alito is right to dismiss this argument. People do this because they think it's cool, not because they think the state is affirmatively endorsing their point of view.

The problem, though, as Justice Alito concludes, is that when all is said and done, this is about the state discriminating among private speakers based on whether it approves or disapproves of the message. This, the First Amendment does not permit.

It is important, by the way, to emphasize that this case is not about the Confederate flag. In light of the decision in Walker, the state of Texas is now permitted to allow "Choose Life" license plates, while refusing to permit "Choose Choice" license plates. It is now permitted to allow Confederate flag license plates, while refusing to permit NAACP license plates. It is now permitted to allow Pro-Gun license plates, while refusing to permit Anti-Gun license plates.

Justice Alito had it right. Such state-discrimination among private speakers based on the specific messages they wish to convey violates the First Amendment -- even on license plates.