Some “Teachable” First Amendment Moments in the Supreme Court’s Oral Argument About Confederate Flags on Texas License Plates

Posted in: Constitutional Law

In today’s column, I analyze the Supreme Court oral argument held a few weeks ago in Walker v. Texas Division, Sons of Confederate Veterans, a case involving the First Amendment and Texas’s regulation of license plates. Motor vehicles registered in the State of Texas must display a state-sanctioned license plate. Most vehicles use a standard-issue Texas plate that has a simple no-frills design and displays a random series of letters and numbers. Texas, like many other states, also permits individuals to submit personalized, or vanity, plates in which the numbers and letters on the plate form a message (such as “HOTSTUFF,” a hypothetical example Justice Scalia used at oral argument).

In addition, Texas permits what are called “specialty” license plates, in which the overall design of the plate (but not the sequence of numbers and letters), is custom-made and might contain symbols, colors and other visual matter that is more elaborate than the relatively plain design of the standard-issue plates. Specialty designs may be adopted by the Texas legislature or proposed by private individuals or organizations. Specialty plate designs that come from outside the legislature must be approved (as must personalized vanity plates) by the Texas Department of Motor Vehicles Board, and the Board by law “may refuse to create a new specialty license plate if the design might be offensive to any member of the public” (a term that Texas authorities construe as meaning offensive to a significant segment of the public.) At least some specialized designs, once approved, can be used by members of the general public. As of a month ago, there were about 450 specialty designs that had been approved in Texas, around 250 of which are usable by the public. Although the majority of license plates in Texas are the plain-vanilla non-specialty plates, it is not uncommon on the Texas roadways to see license plates that make use of one of the approved specialty designs.

Applicants who seek approval of specialized plate designs must pay thousands of dollars to have their designs considered, and people who use the already approved designs pay for the privilege, the proceeds going to various state agencies.

The Texas Sons of Confederate Veterans (SCV) is a nonprofit organization dedicated to preserving the memory and reputation of Confederate soldiers. SCV applied for a specialty license plate that featured the SCV logo, “which is a Confederate battle flag framed on all four sides by the words ‘Sons of Confederate Veterans 1896.’”

When this design was rejected by the Motor Vehicles Board (one of only a dozen or so designs that have been rejected), SCV sued, arguing (successfully in the lower court) that the State’s decision to reject the design on the ground that the content of the design—in particular, the depiction of the Confederate flag—might be offensive to some observers constituted impermissible content- or viewpoint-based regulation of expressive activity insofar as the specialty license plate, while State property, is akin to a forum for speech that the government has created and opened up to people to use to express themselves. Texas, for its part, argues that because the State owns all license plates, and because the State of Texas name appears on all plates, including specialty plates, any expression on license plates constitutes “government speech” or at the very least a hybrid of government speech and private speech. Because the government is a (if not the) speaker in this setting, Texas argues, it necessarily has the authority to accept and reject whichever messages it chooses.

The case raises many fascinating and complex constitutional issues—far too many to meaningfully address in a single column. But in the space below, I use three particular kinds of questions that Justices asked at oral argument to illuminate important and often misunderstood aspects of First Amendment doctrine.

Less Can Be More (Important) Under the First Amendment

Let us first consider Justice Kennedy’s questioning of the SCV lawyer. One of the things Justice Kennedy pointed out is that if Texas is not permitted to exclude Confederate flags (or Swastikas, or other potentially objectionable material) from license plates, it will almost certainly choose to abandon the specialty (and also the vanity) license plate design program altogether, and simply use old-fashioned, plain vanilla license plates. The result, said Justice Kennedy, is that we would end up with less, rather than more, speech, because individual expression that is currently taking place on specialty or vanity plates would no longer be permitted, and people would be forced to resort to things like bumper stickers, which they may not like or make use of as much as specialty plates. “If you prevail,” Justice Kennedy asked SCV’s lawyer, “you are going to prevent a lot of Texans from conveying a message. . . . So in a way, your argument curtails speech?”

Justice Kennedy’s question is actually a profound but rarely explored one, in that the First Amendment’s aversion to content- and viewpoint-based laws may indeed sometimes lead government to enact content-neutral counterpart laws that, quantitatively speaking, restrict far more speech. For example, a law that says “no pro-life rallies in the park after 6pm” is clearly unconstitutional, because it regulates speech on a matter of public concern in a traditional public forum in a viewpoint-based way. But if such a law is replaced with a law (that very well might be upheld) that simply prohibits all rallies in the park after 6pm—a so-called content-neutral regulation of time, place or manner—the result could be an even greater overall reduction in speech.

Of course, it is possible that by forcing government to regulate in a content-neutral way, we may actually make it harder for government to regulate speech at all, so that the end result could actually be an increase in the aggregate level of speech. In the example I gave above, perhaps it would politically difficult to pass a law prohibiting all rallies in the park after 6pm (because many kinds of groups may want to hold rallies, and overcoming the political opposition of all of these groups—as opposed to the merely the pro-life advocates—may not be feasible). If that is true, then striking down the law prohibiting pro-life rallies after 6pm will, in fact, increase rather than reduce the amount of speech.

But oftentimes (as in the SCV case) striking down a law on First Amendment grounds may in fact lead to less speech, but it still can be the right constitutional thing to do. The fact that sometimes we invalidate laws in ways that will create less speech overall tells us that maximizing the aggregate quantum of private speech is not the only thing the First Amendment is concerned with. Preventing the government from distorting the debate, by disabling some points of view, or by locking in majoritarian preferences (as is often the case when “offensive” speech is disfavored) is also an important objective. So too is making individuals feel that government respects them and does not act paternalistically and treat them the way parents treat children by telling them what topics they should be focusing on.

What’s Good for the Goose. . . .

A second line of questioning of SCV’s lawyer, this time by Justice Sotomayor, concerned whether the State should be given the same kind of free speech respect as individuals enjoy. Justice Sotomayor pointed out that that in the Court’s most famous license-plate case to date, Wooley v. Maynard, the majority struck down a requirement that New Hampshire drivers make use of a state-issued license plate bearing the State’s message “Live Free or Die.” Justice Sotomayor then asked: “In Wooley we said we can’t compel the individual[s] to put something on their plates that they disagree with . . . Why isn’t the reverse true for the government [if it doesn’t want to be associated with the Confederate flag]?”

Justice Sotomayor’s symmetry instinct (which assumed arguendo that the Texas specialty license plate regime represents at least a hybrid of government and private speech) is very interesting but ultimately unpersuasive, to me at least. There are lots of constitutional rules that protect individuals that do not protect government in a symmetrical way. For example, a criminal defendant is entitled to have access to all exculpatory evidence in the government’s possession, but the government is not entitled to all incriminating evidence in the defendant’s possession, even though both sides are trying equally hard to prove their case.

I think there is asymmetry here as well. Even though the government can operate as a speaker, it is not a specific beneficiary of the First Amendment, and certainly shouldn’t enjoy all the same First Amendment protections individuals (like the individuals who litigated in Wooley) do. Ultimately, the reasons the drivers in Wooley could not be forced to bear the State’s message were rooted in individual dignity and autonomy aspects of the First Amendment. Institutional and organizational actors, as opposed to individuals, can be forced to be a vehicle for government messages and are relegated to engaging in counter-speech as a way of distancing themselves from any government message they don’t like. This was true in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), a case last decade that upheld (9-0) a federal law that required law schools to allow military recruiters onto campus facilities to recruit students, notwithstanding the law schools’ opposition to the then-existing policy of the military to discriminate against gays and lesbians (“Don’t Ask, Don’t Tell”). Like law schools, the State of Texas does not have the same kind of dignity and autonomy attributes that individual motorists have, and so (even granting that Texas has the authority to act as a speaker) requiring Texas to live with the private message on specialty plates and disclaim any endorsement of the message or design on a specialty plate by adding something like “Views on this license plate do not reflect the views of the State” does not violate the Constitution the same way requiring individuals to promulgate such disclaimers would.

The Relevance (or Not?) of a Profit Motive

A third interesting exchange involved the overridingly important question of whether the specialty plates can properly be thought of as pure (or at least hybrid) government speech at all. The State’s lawyer argued that the fact that the government has retained the right to veto all specialty designs from the get-go makes this a government speech case, but that factor standing alone surely cannot be dispositive. If a public airport withheld for itself the power to ban any leaflets whose message it found unattractive, that would not justify its excluding leaflets in favor of affirmative action while permitting leaflets against it. Control is, as many Justices pointed out, a circular kind of argument about government power. Deciding what is and is not government speech is much more complicated than that.

One potential factor was mentioned by Chief Justice Roberts a few times, and that is the profit motive by the State. Why, he asked, should we view these specialty plates as government expression at all when government’s real goal here was not to raise awareness (about anything) but to raise money? This, too, is an interesting instinct. As with Justice Sotomayor’s question, if we analogize to private individual speech, the government fares better; the fact that a private individual or corporation is motivated by a desire to make a profit does not make his/its expression any less constitutionally valuable: the New York Times newspaper represents classic First Amendment speech even though it is published in order to make money.

But as was true for Justice Sotomayor’s symmetry argument, here too I am not sure we should treat the government the same as individuals. It does seem a bit untoward that the State would raise revenue by charging people thousands of dollars for the privilege of submitting license plate designs, and then reject those whose content it doesn’t like. The idea that the State was (mis)using the specialty-design applicants, and the moneys they paid, for its own monetary gain was one of the most sympathetic aspects of the SCV’s case, which was otherwise not very sympathetic given that the Confederate flag has historically been tightly associated with slavery and insurrection (not to mention the fact that SCV’s lawyer took the position that the State could not, consistent with the First Amendment, reject designs with swastikas on them.)

The opinions that emerge from this case in the coming months could be very interesting.

5 responses to “Some “Teachable” First Amendment Moments in the Supreme Court’s Oral Argument About Confederate Flags on Texas License Plates”

  1. sckntrd says:

    It is interesting how the ‘legal’ minds get caught up in their own case law (and forget about the “actual law”). Governments have no rights nor can they. The basic premise behind the Constitution is a government of the people, therefore it belongs to the people. Government cannot become a separate entity nor are any provisions in the Constitution written on behalf of the government (all protections are “from” government). The Constitution belongs solely to the people. Therefore the government can make no arguments on a benefit they can not have.

    To strike down the license plate on the basis; “…might be offensive to some
    observers….” is a perception without any merit. Christianity might be offensive to some Muslim or Judaism to some Buddhist.

    The comment or ruling that; “the state owns all license plates” omits the principal argument that people are the state, not government (the “state” cannot own anything, it all belongs to the people). All taxes (monies) to run a state (government) come from the people, not from the government and ultimately belong to the people. The government cannot exist without people, but people can exist without government. The tax issue (generated by specialized license plates) is irrelevant since free commerce employs people who make products and pay taxes and people then buy that product and also pay taxes (more on this below).

    The claim by Justice Kennedy is even more preposterous; “If you prevail,” Justice
    Kennedy asked SCV’s lawyer, “you are going to prevent a lot of Texans from
    conveying a message. . . . So in a way, your argument curtails speech?” Statements like this are what make ordinary Americans like me realize more and more how broken our legal system is. How irrelevant The Court is becoming.

    So preventing free speech prevents more free speech?? Understanding Kennedy’s argument is; that the state will eliminate all specialized licenses if SCV wins. Hardly the case, especially so in this case which the article briefly mentions commerce and bumper stickers. Bumper stickers enable the identical message or almost any message and are therefore the ultimate expression of free speech. As stated above, bumper stickers creates jobs AND tax revenues, all in the private sector devoid of perceived (real and imaginary) government restrictions.

    Referencing case law does so much injustice to the justice system and has set our system back, not moved it forward.

    Ultimately, all government messages should be disallowed and in this instance since government is the arbitrator of what is allowed, government has already violated the very tenant and premise of free speech. Every line in the sand only creates another line, then 2 more, then 4 more, etc. Equaling where we as a Country are right now,…fundamental loss of Constitutionally (legally) protected free speech.

    License plates should remain license plates (no message) or you have to allow all messages. Being “objectionable to some” is not enough of a standard or reason for limitation, as well as being indiscriminate and arbitrary.

  2. Jeremy Z says:

    If specialty designs on license plates are government speech, wouldn’t that mean that any designs promoting religion violate the Establishment Clause?

    The license plates here contain both functional and expressive elements. The legitimate governmental purpose in requiring the affixing of a license plate is to facilitate identification of a vehicle. To do that, the license plate needs a number which is tied to a vehicle in a database somewhere and something on the plate itself indicating which state’s database that is. In other words, functionally, the plate needs to say essentially “This is vehicle number 123456, more information on which is maintained in the State of Texas DMV records.” Anything beyond that is expressive.

    While the government can use the expressive space to express a governmental message, it cannot compel a person to carry it. Wooley holds that clearly. To the extent the government permits a person to choose anything to put in the expressive space themselves, it is exclusively private speech. As such, the government cannot disapprove a design because the majority disagrees with its message. The government cannot seriously contend that it is a joint speaker with every specialty design submitter it has approved. Any “Jesus Saves” design would undoubtedly run face-first into the Establishment Clause. The joint speaker argument when combined with Texas’ refusal to approve the SCV plate design would imply that the government is operating the license plate system with a policy of “It’s our plate, but we’ll print and attach our impramitur to anything we agree with you on,” which is discriminating based on content and viewpoint. However distasteful it is, the SCV lawyer is right that the state cannot reject a swastika design any more than it can reject the confederate flag.

    To whatever extent the government is concerned that people might incorrectly assume it endorses the message of a controversial plate, it can adequately handle that by a disclaimer.

    Edit: I accidentally a word.

  3. Mitzi Vaughn says:

    Prof Amar- as a former student, I think it’s great that I can continue to learn from you via these columns. Keep up the great work!

  4. Upaces says:

    Lord! The Confederate Flag had NOTHING to do with Slavery.
    It was about “State’s Rights”!!
    Many states wanted to seceded from the Union. Texas and South Carolina still holds that right. We haven’t used it….might be nice now—but a war would be declared again against the South.
    I have a Confederate flag on one side of my fireplace and the American Flag on the other side.

  5. Charlie says:

    I was disappointed in the decision because it was dependent on characterizing the specialty license content as government speech, which I think is bogus. On the other hand, I was able to agree with the justices with whom I don’t often see eye to eye. Texas should have been required to issue the requested specialty license plate and, as a result, closed down the program, because the government cannot sponsor content-neutral private speech spaces without their eventually becoming used for objectionable, profane, disgusting (but short of unprotected) speech.