Although he agrees with the result, Cornell Law Professor Michael Dorf exclaims that Justice Breyer's majority opinion in the recent Texas license plate case (Walker v. Texas Div. Sons of Confederate Veterans) is "so badly reasoned that it cannot be taken seriously." See here. In that case, Texas refused an application for a license plate with a Confederate Flag on the ground that it was offensive. The relevant part of the licensing scheme was one in which "sponsors" submitted proposals for new specialty license plates including a draft design and a nomination for the government agency that would receive funds derived from the plate. The relevant statute provides that the Department of Motor Vehicles Board shall design the license plate in consultation with the applicant. It may refuse the proposal if the contents of the plate would be offensive to any member of the public or if the nominated agency refuses the funds or the proposed use of the funds would be illegal. In this case, the Texas Board refused to issue the plate exclusively because many members of the public found the plate to be offensive.
Under current law, it makes a world of difference whether speech is considered governmental or private. If government runs a school, it can favor astronomy over astrology. In other words, when government speaks, it may favor some viewpoints over others. But suppose a school district intentionally opens up its classrooms in the afternoons to public groups. In First Amendment lingo, it has created a designated public forum. It cannot exclude groups on the basis of the point of view they take. So the astrology society has as much a right of access as does any other group. And because racist speech is protected under the First Amendment, the Nazis and the Klan can gain access as well. So too, even though government may not establish a religion, religious groups can gain access to the schools as well. Government is not endorsing their speech by permitting access to them on a non-discriminatory basis.
The dissent argued that the specialty license plates were a designated public forum. The Texas exclusion of the Confederate Flag license plate, they suggested, is the equivalent of a school district saying we will throw open our afternoon classrooms to all public groups except those we find offensive.
Justice Breyer, for the majority, argued that the license plates were government speech. But Texas had accepted license plates saying Notre Dame, the Florida Gators, and Get it sold with REMAX. No one in his or her right mind would think that the government of Texas was speaking on those plates. Yes, Texas may have co-participated in the design of those plates, but the resulting message is that of the sponsor. If the theory of the designated public forum makes any sense, Texas should not be able to let all messages in except those that are offensive. Texas maintained that it had a right not to be associated with the racist message of the Confederate flag, and Breyer agreed. But if that is correct, the school district ought to be able to say, we don't want to be associated with the Nazis. We don't want people to think we are willingly associating with them.
A number of commentators have said that the speech here is neither governmental nor private, but joint. See, e.g., here. Nonetheless, I would think the principle of the designated public forum would continue to apply. Government can't approve all speech except the speech it finds offensive. Perhaps though Justice Breyer's opinion will come to be read in a narrower way as an opinion about race.
American protection for racist speech is out of step with the rest of the world. In my view, it is nothing to be proud of, but I do not expect it change. On the other hand, there might be room to say that racist speech is not to be treated the same as all other speech in all contexts. It seems absolutely preposterous that the Klan and the Nazis would be able to use public school classrooms. And one can appreciate Justice Breyer twisting the law to keep a confederate flag off of Texas plates (though he says a bumper sticker with a flag would be permissible).
The Confederate flag is seen by some as a symbol of Southern pride without reference to race, and is seen by others as a symbol of racism. In fact, it is both. If we are serious about equality, however, no state should be permitted to display that flag.