The license plate as podium: Who speaks – you or the government?

Government speech versus free speech. Andrey_Popov/Shutterstock

Texas offers drivers a choice of specialty license plates but is the state, not the driver, doing the talking, when there’s a message on the plate? A recent Supreme Court case addressed the issues raised when state and private citizens team up to produce speech.

On June 18, in Walker v. Texas Division, the Supreme Court ruled that the state of Texas could refuse to produce a specialty license plate featuring a Confederate battle flag. The ruling overturns a previous decision from the 5th Circuit Court of Appeals.

Writing for a five-person majority, Justice Stephen Breyer concluded that specialty license plates are a form of government speech, and therefore Texas may decide what the plates can say and what they cannot.

“Indeed,” Breyer writes, “a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate,” Breyer writes.

Alito: Vanity plates are private speech on government property

In dissent, Justice Samuel Alito, joined by Chief Justice John Roberts, Justice Antonin Scalia and Justice Anthony Kennedy, argued that the plates are really instances of private speech on government property.

This understanding would have triggered a requirement that the state not reject plates on the basis of viewpoint. Thus, the decision by the Texas Division of Motor Vehicles to reject the Confederate plate as “offensive” would have been unconstitutional.

It is absurd, Justice Alito argued, to think that the state of Texas is speaking on license plates that say “Rather Be Golfing” or “NASCAR—24 Jeff Gordon.” These specialty plates are not government speech, Alito insisted. Instead, they are private speech on a government-issued piece of property.

The design of a proposed Texas Department of Motor Vehicles/Handout via Reuters

The Court’s decision has already had an impact.

The Governor of Virginia just announced that that state will discontinue its Sons of Confederate Veterans plate. The outcome also suggests an answer to another case pending before the Court, in which North Carolina approved a “Choose Life” plate but rejected a pro-choice one. If the plates are government speech, the power to choose what to say lies with the government.

What private-public partnerships constitute “government speech”?

In our society, many kinds of speech combine private and public participation. These range from donated monuments in public parks, to publicly subsidized nonprofits, to student clubs at state universities and even to to beef commercials.

In recent years, the Supreme Court has taken to calling more of these partnerships “government speech.”

The court did this with the “Beef: It’s What’s for Dinner” commercials, which were funded by American beef producers through a special mandatory tax. It did it again with a privately donated monument of the Ten Commandments in a public park. Justice Scalia wrote the majority opinion in the beef case, and Justice Alito did so in the Ten Commandments case.

Justice Breyer’s majority opinion invokes these earlier opinions as if to say, “If that was government speech, then this is too.”

“Government speech” is, however, an awkward way to characterize what is going on when citizens and the government are partners in creating a message. The real problem is the competing demands on the government.

On one hand, the First Amendment requires the government not to censor private individuals for their points of view. On the other hand, federal, state, and local governments have the power to take a stand on policy issues–we cast a vote for some candidates over others precisely because of the policies they will implement.

Sometimes, the government even has an obligation to take a certain position. The Establishment Clause and the Equal Protection Clause require the government to express certain values and reject others. For example, the state cannot endorse a particular religion, nor can it deny the equality of citizens under the law.

Cases like Walker put states in a dilemma. Does the First Amendment require them to partner with the Sons of Confederate Veterans? Or can they say no? Or are they required to say no, under the Equal Protection Clause? People disagree about when the government must be neutral, and when it either can, or must, implement its own values.

The Ku Klux Klan’s adopt-a-highway scenario

The same problem has arisen when the Ku Klux Klan has applied to participate in Adopt-A-Highway programs, as it did in Missouri in the late 1990s.

The Eighth Circuit concluded that, under the First Amendment, Missouri had to let the Klan participate. link text The majority’s decision in Walker suggests that now the state could say no to partnering with a viewpoint so counter to its own values.

To go further, an interesting aspect of the Court’s Walker ruling is that, if license plates are deemed government speech, then certain messages on them might violate the Establishment Clause or even the Equal Protection Clause. A plate deemed to be improperly religious or, say, racist or sexist, could become something that the state not only could reject but would have to reject.

I doubt the Supreme Court majority thinks the state of Texas is anything but indifferent toward golfing. But it probably thinks that the state should retain some power to refuse to partner with speech it rejects as a matter of policy. The Court uses the term “government speech” to state this conclusion.

But calling something “government speech” does not tell us when the state can take a position and when it must remain neutral.

Calling license plates “government speech” is just the Court’s way of affirming another form of government speech: the state’s power to say “No.”

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