The Supreme Court Could Hear a Third License Plate Case

Posted in: Constitutional Law

In a country in which many people regard driving a car as practically a God-given right, it is perhaps unsurprising that two important Supreme Court cases involve free speech on license plates. In the 1977 case of Wooley v. Maynard, the Court upheld the right of Jehovah’s Witnesses to tape over the motto “Live Free Or Die” on their New Hampshire license plates. Last year, in Walker v. Texas Div., Sons of Confederate Veterans, the High Court rejected the argument that Texas violated the free speech rights of drivers in that state who sought state-issued specialty plates bearing the image of a Confederate battle flag. The issuance of specialty plates, the Court said, was government speech, not simply private speech.

Now the Supreme Court has the opportunity to decide yet a third license plate case. In Cressman v. Thompson, the U.S. Court of Appeals for the Tenth Circuit rejected the claim of an Oklahoma man that he had a free speech right to tape over the image of a Native American shooting an arrow into the sky. Mr. Cressman objected to the compelled display of what he regards as the image’s pantheistic message. The “Sacred Rain Arrow,” based on a well-known sculpture by Allan Houser, depicts an Apache legend of a warrior who shot the arrow to the heavens to ask the gods for rain. However, the appeals court concluded that the image connotes only recognition of the Native American heritage of the state—and because Cressman does not object to that message, the court concluded that compelled display did not infringe his right to free speech.

Last November, Cressman filed a petition for a writ of certiorari from the Supreme Court. As the year ended, the libertarian Cato Institute filed an amicus brief urging the justices to accept Cressman’s case. Then, last week, the Court called for a response from the Oklahoma state defendants—often the first step before the Court grants review to hear a case on the merits.

The immediate issue in the Cressman case may seem quaint or peculiar, but it presents important questions with potentially far-reaching implications. As I shall explain, the appeals court appears to have erred in failing to protect Cressman’s right against compelled speech. Nonetheless, a Supreme Court decision to grant review and rule for Cressman could—depending on how the opinion is written—hold the potential to undermine anti-discrimination law.

Differences From the Prior License Plate Cases

The Tenth Circuit opinion is not entirely hostile to Mr. Cressman’s claim. For one thing, the court determined that he has standing to challenge the prohibition on covering over the Rain Arrow image, even though he could avoid the need to do so by paying a few extra dollars for a specialty plate that does not bear that image.

Moreover, the appeals court also rejected the argument that Cressman’s claim is precluded by last year’s Supreme Court ruling in the Texas Confederate flag plate case. The decision to issue plates with the Rain Arrow is government speech, the appeals court said, but, citing language from the Supreme Court, the appeals court correctly explained that requiring individuals to display the government’s message also implicates those individuals’ free speech rights.

That conclusion was clearly correct because the Walker case did not purport to overrule Wooley. After all, if Cressman’s claim could be dismissed on the ground that only Oklahoma “spoke” by placing the Rain Arrow image on its plates, then the Wooleys’ claim could also have been dismissed on the ground that only New Hampshire spoke by placing “Live Free Or Die” on its plates. Yet the Wooleys won, and the ruling in their favor remains binding precedent.

Why, then, did the appeals court reject Cressman’s free speech claim? It ruled that he was not, in fact, compelled to display a message with which he disagrees because “the only conceivable message a reasonable observer would glean from the license plate is one to which Mr. Cressman emphatically does not object—namely, a message that communicates Oklahoma’s Native American culture and heritage.”

What’s Wrong With the Appeals Court Ruling?

According to the appeals court, Cressman was not entitled to the full protection of the First Amendment because he was compelled to display a symbol, rather than words. In that context, the court ruled, the more forgiving test for the regulation of “expressive conduct” applies. Yet, as the Cato brief emphasizes, the Supreme Court’s expressive conduct cases involve regulation of conduct that may or may not have an expressive element—conduct like destroying a draft card or sleeping in a park. By contrast, visual art has long been understood to receive full free speech protection.

Judge McHugh, who wrote a concurrence in the appeals court, correctly determined that there should be no constitutional difference between compelled speech through words and compelled speech through images. Nonetheless, like the majority, he thought that Cressman’s right against compelled speech was not infringed because he agreed with the majority that, given the overall context, the message expressed by the Rain Arrow image and the phrase “Native America” on an Oklahoma license plate was recognition of the contributions of Native Americans to the state’s history and culture, not the pantheistic beliefs of the Apache.

Yet whether the approach is limited to images or applied to all speech, including speech through text, the appeals court’s position is highly problematic. Both words and, especially, images are often polysemous—that is, they have multiple meanings.

That point is clear even if we confine our attention to the Supreme Court’s most recent license plate case. The plaintiffs in Walker wanted to display the Confederate battle flag as part of the design of their specialty plate because to them the flag connoted respect for the bravery of their ancestors. The state refused to grant them their wish because Texas officials understood that many people would construe the flag image as endorsing slavery and white supremacy. Both perspectives were right because the Confederate flag means different things to different people.

The same appears to be true of the Rain Arrow image. Although the Oklahoma officials who chose the image for the standard state plate undoubtedly thereby aimed to recognize the Native American heritage of the state, the image does call to mind the Apache legend. And there does not appear to be any doubt that Mr. Cressman sincerely objects to endorsing pantheism.

Does it matter that reasonable observers would not construe driving a car with a standard-issue Oklahoma plate as endorsing pantheism? It shouldn’t. After all, in Wooley, then-Justice Rehnquist suggested in his dissent that no one would attribute to the Wooleys the message that the state put on their license plates. Yet the majority ruled in favor of their free speech claim nonetheless.

And rightly so. As Professors Vincent Blasi and Seana Shiffrin explained in a chapter of a book I edited, a person’s interest in avoiding compelled speech is not simply an interest in preventing third parties from mistakenly attributing a position to that speaker. Interests in authenticity and sincerity justify a right to avoid compelled speech because of its internal effects on the speaker. Admittedly, the interest is strongest in the context of compelled recitation, as in the Pledge-of-Allegiance case that was the chief focus of attention for Blasi and Shiffrin. But the Wooley doctrine quite appropriately builds on the Pledge precedent.

Accordingly, the appeals court seems to have erred. It would be appropriate for the Supreme Court to grant review and reverse the judgment.

The Risk to Anti-Discrimination Law

Although the appeals court erred by failing to grant relief to Mr. Cressman, it rightly worried about granting free speech protection to just about anyone who claims that compelled government expression is inconsistent with his views. In particular, a too-broad conception of the right against compelled expression could threaten anti-discrimination law.

Federal, state, and local laws forbid private discrimination on various grounds, and from time to time people object that complying with such laws expresses a viewpoint with which they disagree. For example, in a New Mexico case, a wedding photographer objected to the application of a public accommodations law on the ground that providing her services to a same-sex couple would require her to express—through her photographs—a message with which she disagreed. The state supreme court rejected her claim on the ground that by requiring the provision of services on a non-discriminatory basis, the government was not compelling any private speech. The U.S. Supreme Court then denied review, but similar claims can and likely will be brought by photographers, bakers, florists, and others.

A Supreme Court ruling for Cressman that is written too broadly could undermine anti-discrimination law if it provides that any time anyone claims that compliance with a general legal obligation would, in her view, express a view with which she disagrees, she has a free speech right to an exception from the legal obligation.

To be sure, even if the courts were to hold that private parties have a prima facie free speech right to opt out of legal obligations that they feel result in compelled expression with which they disagree, such parties could still lose on the ground that the government has a compelling interest in anti-discrimination law, thus overriding the free speech right. But it would be risky to count on that result.

In the 2014 Hobby Lobby case, the dissenters worried that broadly granting religious exceptions could undermine anti-discrimination laws. Justice Alito’s majority opinion responded that the government has a compelling interest in forbidding race discrimination, but ominously, he said nothing about discrimination based on other grounds, such as sex and sexual orientation. It is thus possible that the Supreme Court would find that much anti-discrimination law would have to yield to free speech objections, just as it may have to yield to religious objections under statutes that provide for religious opt-outs.

Thus, if the Court grants review and rules for Cressman, as I believe it should, the justices must be careful not to write an opinion that sweeps too broadly. Cressman has a valid free speech objection because the government’s placement of the Rain Arrow image on his license plate is an inherently expressive act. However, where government merely forbids certain kinds of conduct—such as discrimination in the provision of goods and services—people should not be heard to object that compliance with their legal duty amounts to compelled speech.

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