Supreme Court Gets Free Speech Case Totally Wrong

The Supreme Court handed down a rather absurd decision in a Texas case involving specialty license plates, ruling that those plates are government speech rather than private speech and therefore the First Amendment does not apply. The lineup was very odd, the four liberals on the court and Clarence Thomas.

Texas has approved specialty license plates from about 350 different private groups. Those who want those plates pay an extra fee for them and the proceeds are split between the state and the private organization. By choosing which plate to buy, the motorist is expressing his support for the group that proposed the plate. But the Supreme Court ruled this week in Walker v Texas Division, Sons of Confederate Veterans that the state had the authority to say no to a proposed specialty plate on the grounds that some might find it offensive because those plates are government speech rather than private speech.

Forget for now that the specific plate in question is from the Sons of the Confederate Veterans and contained a confederate flag. That is not what is either at issue or at stake. Imagine that the plate in question is one that you would support, for the ACLU or American Atheists or another group you supported. Now do you think the ruling got it right? Because the argument is not about this specific plate, it’s about whether the state can pick and choose which messages they will allow on license plates and which they won’t. And there’s a very high probability that many states would refuse to allow plates that supports the Freedom From Religion Foundation or the American Humanist Association.

The notion that this is government speech is easily disproven by the fact that with all those different license plates, they would have to be endorsing opposing and competing ideas — support for two rival universities, or support for both anti-choice and pro-choice groups. No, this is private speech being facilitated by the government, just like every rally held on public property for as long as anyone can remember, literally thousands of such events in a given month.

And just like those cases, the proper standard here is limited public forum analysis. If the government is going to open its property — license plates, in this case — to outside groups to express a message, it cannot pick and choose which ones they will allow to have access to it on the basis of the viewpoint being expressed. The liberals on the court got it wrong and so did Clarence Thomas. You can read the full ruling here.

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  • D. C. Sessions

    A lot of those plates are for religious organizations. I suspect that suits to stop them are already being drafted.

    And the lower courts aren’t going to have a lot of room to uphold a State speech declaring that “jesus saves.” So this will be back before the SCOTUS pretty soon (as such things go.)

  • http://www.facebook.com/drew.vogel2 drewvogel

    I’m with the Court on this one. States can choose whether or not to allow specialty license plates at all, and if so, which ones.

  • Steve Caldwell

    If the flag on the license plate is a symbol of treason and armed rebellion against the government, is the government obligated to put it on government-issued license plates?

  • Big Boppa

    What if the flag in question were a Swastika? How about if some “Family” organization wanted a plate to promote biblically inspired punishments for homosexuals? How about one that denies the Holocaust?

  • tomh

    All 50 states have specialty license plate programs, and all 50 have various methods for deciding what plates they allow. Nine states allow Confederate flags, and the lawyer for the Sons of Confederate Veterans argued that the state should allow swastikas, “jihad,” and anything else someone wanted on their license. Twenty nine states allow “Choose Life” plates for anti-abortion groups, some states reject them, and/or reject opposing views. Maybe Roberts was right when he said. “”They’re only doing this to get the money,” Chief Justice John Roberts said of Texas’ specialty-plate program. The solution might be, he said, that “they don’t have to get in the business of selling space on their license plates to begin with.”

  • Michael Heath

    I’m with the majority as well. I think most reasonable people perceive messages on license plates as government sanctioned speech. I do.

    Here in the state of Michigan we often see tourists from Indiana with plates promoting God. I have no doubt that message is state sanctioned speech symbolizing Christians pissing on their territory as notice to secularists our rights will not be protected equally. That Christianists are a privileged class and we secularists should not have our rights protected equally.

    Ed argues:

    Forget for now that the specific plate in question is from the Sons of the Confederate Veterans and contained a confederate flag. That is not what is either at issue or at stake. Imagine that the plate in question is one that you would support, for the ACLU or American Atheists or another group you supported. Now do you think the ruling got it right?

    I think this is a defectively narrow framing. I don’t think the state of Texas should be promoting secession and discrimination against black people, both are unconstitutional. If the American Atheist message was an argument to prohibit religious exercise, I’d argue that is also undeserving since it’s not public policy to prohibit religious exercise and if that passed at the state level, would be immediately struck down by the federal courts.

    Instead I would argue that messages on plates are constitutional only if they’re promoting passed public policy.

    Here in the state of Michigan we have laws that meet constitutional muster that protect loons and other waterfowl. You can buy a license plate with a loon and I always have since they became available. Our state also has public universities where people can have the logo of a public university on their plate, I think that’s fine given the fact the state of Michigan does support public universities.

    So Ed presents us with a strawman; speech for me but not for thee. Instead I would frame this as speech that’s consistent with state policy is acceptable and speech that is not is not acceptable.

  • Michael Heath

    One other item. I don’t see this as a controversy regarding somebody’s speech rights. As the majority found, people can promote their arguments all over the back of their vehicles.

    Instead I see this as a controversy regarding government power. Have we delegated authority to the state to promote secession and racism? Not even close. In the case of Indiana, I also find that license plate blatantly unconstitutional, as I do when the federal government promotes Christianism on our money, with the pledge, and our motto.

  • Michael Heath

    I regret using “sanctioned” to describe the speech at issue here. I meant to say government speech, not government sanctioned speech.

  • Holms

    Siding with the court too, from the simple fact that the plates are a requirement required by the government in the first place; the whole point of their existence is that they are perforing a government-mandated function. In my view, the idea of specialty plates endorsing some organisation is a bit weird regardless of what the organisation might be, and is a clear cash-grab which I’m not convinced should exist.

  • colnago80

    Quite obviously, the notion that the state can’t approve what’s on a license plate is piffle. If that were true, the state could not prevent someone from having a license plate with the word fuck u.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    colnago80 “If that were true, the state could not prevent someone from having a license plate with the word fuck u.”

    Worse, if other schools can have plates, why not Fuck U?

  • grendelsfather

    What if the flag in question were a Swastika? How about if some “Family” organization wanted a plate to promote biblically inspired punishments for homosexuals? How about one that denies the Holocaust?

    Yes, if any personal statements are allowed on license plates, then those sentiments should be allowed, too. These odious ideas are exactly the kind of thing the 1st amendment was designed for. Popular ideas do not need constitutional protection.

    If you don’t want to see such messages on license plates, then the solution is not to let governments decide what ideas should be expressed. The solution is to get government out of the business of facilitating any personal messages on license plates.

  • skinnercitycyclist

    How’s this for a novel idea? How about we make metal plates with dates of registration on them and a number and a modestly designed background that modestly pimps the state so that the number can be read and if people want to express themselves they can buy and affix a fucking bumpersticker.

  • D. C. Sessions

    Worse, if other schools can have plates, why not Fuck U?

    Which one?

  • John Pieret

    I am deeply ambivalent about this decision.

    While I agree with Ed that no rational person can view this a ‘government speech.’ I am with Michael Heath (right up to his last post) that it is government sanctioned speech. It’s a bit like the discussion now in South Carolina, after the Charleston massacre, about the state flying the Confederate battle flag on state grounds (and it being the only flag not lowered to half-mast after the tragedy) … when does approval become more than that?

    Yes, it is allowed with opposing views … but if the state allows a manger at Christmas, does it have to build a giant red “A” to counter it, just because atheists request it?

    Oh well, if constitutional law was easy, there’d be no need for lawyers like me.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    D. C. Sessions, FU Lubbock, obviously.

  • tbp1

    I know this will never happen, since it’s a source of income, but I wish they would just stop allowing speciality and vanity license plates altogether. I have traveled in a couple of of dozen foreign countries, and if any of them allows this I haven’t noticed it, which leads me to believe that—at the very least—it’s not common and maybe even nonexistent.

    That said, I’m kind of with Michael Heath in 7. People are free to put whatever the hell they want on bumper stickers, but license plates are government issued (I don’t know if they are considered state property or that of the car owner) and it is not unreasonable to associate the message with the state. That’s actually a big part of why I am against specialty/vanity plates in the first place.

  • whheydt

    I’m with those who have mixed feelings about the decision.

    However, having been decided, all plates with religious messages should be subject to challenge under the establishment clause. When those cases hit SCOTUS, I think there are some justices that are going to be mighty unhappy with this decision.

  • http://www.facebook.com/drew.vogel2 drewvogel

    Allow me to reframe the question: should Texas put the Confederate battle flag on some of the license plates it issues? Forget about law and precedent and everything. Just consider that simple question. Is that a good idea or a bad idea? Technically speaking, of course, this is the wrong question to ask, which is why neither majority nor dissent addresses it. Instead, judges are supposed to ignore that question entirely and instead decide the matter on the basis of law and precedent. The common metaphor, memorably invoked by Chief Justice John Roberts during his confirmation hearings, is that judges are just supposed to call balls and strikes.

    The dirty little secret that no one likes to talk about is that law, like scripture, is almost infinitely malleable in interpretation. If you haven’t already, please take a few moments to skim through the majority and dissenting opinions. It seems to me that both make reasonable and reasonably persuasive arguments for their respective positions. Both sides recognize that license plates are not entirely like and not entirely unlike a public forum, so the issue is whether and to what extent the rules created for a public forum should be applied to license plates.

    According to the “balls and strikes” theory, one side of this fight is objectively correct and the other is objectively incorrect, as determined by law and precedent. In other words, there is already a right answer and a wrong answer before any of the Justices get involved, and we just have to hope that a majority of Justices can correctly tell one from the other. But this is all a fiction.

    In truth, there is no right or wrong answer. What it really comes down to (at least in practice, but I would argue in principle as well) is the preferences of the individual Justices. Because law and precedent are malleable, any reasonably intelligent individual can construct a reasonably compelling legal argument to support either position, and that is precisely what the Court has done. The majority has explained how license plates differ from a public forum and ruled accordingly, while the dissent identified how they resemble a public forum. There is no legal basis to decide between these two positions.

    Since we are mere denizens of the internet, with no authority and therefore no responsibility with respect to resolving this controversy, we have the luxury to ignore all of the legal arguments and simply ask the question directly: should Texas put the Confederate battle flag on some of its state-issued license plates? When framed in this way, we have the opportunity to confront a range of issues which are legally irrelevant but in fact much more important. The dissent argues that, legally speaking, the Court should not concern itself with how these license plates might impact other drivers, and legally speaking, that’s correct. But that question is of infinitely greater importance to the people of Texas than whether or not license plates sufficiently resemble a public forum for 1st Amendment purposes. We mere denizens of the internet are not bound by the professional and political obligations of federal judges. Since we are not required to privilege technical, legalistic arguments over broader considerations, we should not do so.

    Texas should not put the Confederate battle flag on any of its state-issued license plates because that would be a shitty thing to do. Simple as that.

  • tomh

    @ #17 tbp1 says

    “it is not unreasonable to associate the message with the state.”

    I thought Alito countered this argument pretty well in his dissent, when he said, “If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” “

  • D. C. Sessions

    Thomas in particular. Of course Thomas is not exactly the biggest Establishment Clause purist on the Court anyway, and in his own way very consistent. He’s probably fine with it being State speech to have a crucifix on the plate with a motto of “In nomine Patri …” Not so sure of the other members of Team Republican, though.

  • Pierce R. Butler

    For this case to be decided by the Supreme Court now, it must have started under the Rick Perry administration.

    Can anyone please explain to me how the Texas state gummint took a stand against the Stars ‘n’ Bars??!?

  • tomh

    @ #22

    You do Perry a disservice. In 2011, not long before the motor vehicles department unanimously rejected the plates, Gov. Rick Perry indicated he supported such a move. “We don’t need to be scraping old wounds,” he said.

  • doublereed

    I lean toward the ACLU, who argued as Ed did.

    Keep in mind there was a similar court case in North Carolina that is extremely similar to this and presents the alternate viewpoint. In North Carolina, there was a license plate scheme like this that allowed Pro-Life license plates but did not allow Pro-Choice license plates. The government does not get to pick and choose.

    With this Supreme Court case, it almost certainly would be constitutional even if it is ridiculous.

  • doublereed

    @19 drewvogel

    By ignoring precedent and law, you open yourself to basically having the government rule “this speech is okay because it doesn’t offend me” and “that speech is not okay and we should throw you in jail.”

    The courts in this instance are built to protect people’s rights. Direct policy decisions are handled by the legislature. Whether something is a good idea or not is up to democracy and policy.

  • http://www.facebook.com/drew.vogel2 drewvogel

    #25 doublereed

    On this issue, law and precedent are simply not dispositive. The majority and dissenting opinions in this case do not differ significantly in terms of the quality of their reasoning or their legal analysis. Some issues simply can’t be decided that way, and this is one.

  • tomh

    @ #24

    The North Carolina case seems different, in that there were two obviously opposing viewpoints. Texas offers some 400 specialty license plates, but none are anti-confederate flags. And of course the government gets to pick and choose which specialty plates they offer. Otherwise, they wouldn’t need to vote on whether to accept or reject an application.

  • Michael Heath

    . . . it is not unreasonable to associate the message with the state.

    tomh responds:

    I thought Alito countered this argument pretty well in his dissent, when he said, “If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?”

    The policy of the state of Texas is to promote sports: http://www.dmv.org/tx-texas/special-license-plates.php. No reasonable person would think the state of Texas’ speech in this case actually promotes golf instead of work.

    J. Alito’s strawman is merely an avoidance tactic regarding the state of Texas promotion of the confederate flag. A flag that promotes secession and owning black people.

    A person seeing a Texas license plate with a confederate flag on it can reasonably conclude that the state of Texas remains committed to at least,

    a) its long resistance to the federal government protecting American rights equally (secession, nullification, so-called “states rights”) and,

    b) treating black people as less than human with less protection of their individual rights.

  • Michael Heath

    doublereed writes:

    Keep in mind there was a similar court case in North Carolina that is extremely similar to this and presents the alternate viewpoint. In North Carolina, there was a license plate scheme like this that allowed Pro-Life license plates but did not allow Pro-Choice license plates. The government does not get to pick and choose.

    This argument misrepresents the majority’s opinion. The majority held the license plates are government speech. From that perspective the authority of the government is limited to the powers delegated to it. The majority held that government does have the authority to promote passed public policy (and more!). That rather the framing of individual speech in a government-sponsored public forum.

    Here’s the very start of the ruling:

    Held: Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring SCV’s proposed design. Pp. 5–18. (a) When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Pleasant Grove City v. Summum, 555 U. S. 460, 467–468. A government is generally entitled to promote a program, espouse a policy, or take a position. Were the Free Speech Clause interpreted otherwise, “it is not easy to imagine how government would function.” Id., at 468.

    Now I disagree with the portion that argues government is allowed to take a position in this type of forum beyond passed public policy. But the framework for this issue is drawn correctly, this is about the power of the government to speak through its license plates.

    From my perspective this is a no-brainer case if we conclude we operate under a government with limited powers. However I’d write a concurring opinion rather then join the majority. I don’t think the government has the power to decide what speech it can and not make here. Instead I take the position that we didn’t delegate authority to the state of Texas to promote the unconstitutional practices symbolized by the confederate flag.

  • Michael Heath

    doublereed writes:

    In North Carolina, there was a license plate scheme like this that allowed Pro-Life license plates but did not allow Pro-Choice license plates.

    I think this issue is a far more interesting controversy then the confederate flag controversy when we consider this through the lens of Walker v. Texas. It appears the SCOTUS has just ruled the state of NC does have the authority to take a position on abortion and promote just that conclusion, regardless of whether that conclusion is consistent with passed public policy or not.

    The opinion is very short where J. Breyer does concede there is some limitations on government speech but doesn’t describe those limitations.

    If we consider my paradigm, that this forum limits the authority of states to promote only passed public policy, then neither position could be taken as clearly as expressed by pro- and anti-abortion rights advocates when it comes to government speech on license plates.

  • Michael Heath

    Re those that claim license plates are a public forum rather than government speech: Here’s a finding of fact reported in the majority’s ruling:

    The parties agree that Texas’s specialty license plates are not a traditional public forum. Further, Texas’s policies and the nature of its license plates indicate that the State did not intend its specialty plates to serve as either a designated public forum—where “government property . . . not traditionally . . . a public forum is intentionally opened

    Cite as: 576 U. S. ____ (2015) 3 Syllabus up for that purpose,” Summum, supra, at 469—or a limited public forum—where a government “reserv[es a forum] for certain groups or for the discussion of certain topics,” Rosenberger v. Rector and Visi- tors of Univ. of Va., 515 U. S. 819, 829. The State exercises final authority over the messages that may be conveyed by its specialty plates, it takes ownership of each specialty plate design, and it has traditionally used its plates for government speech. These features of Texas specialty plates militate against a determination that Texas has created a public forum. Finally, the plates are not a nonpublic forum, where the “government is . . . a proprietor, managing its in- ternal operations.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 678–679.

  • Michael Heath

    @ 30 I quote the ruling of the court rather than the opinion of the majority. Please excuse my error @ 30.

  • whheydt

    Re: Pierce R. Butler @ #22….

    /nitpick_mode on

    The flag in question is *not* the “stars and bars”. Neither is it the Confederate national flag (though it was the canton of the second and third Confederate national flags). It was the Confederate battle flag.

    /nitpick_mode off

    I would have dredge up a lot of nearly forgotten heraldry to do proper blazons, but (without doing tinctures) the “stars and bars” is a fess, in canton a circle of 13 estoiles of five points. The battle flag would involve a saltire with estoiles.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    whheydt “I would have dredge up a lot of nearly forgotten heraldry to do proper blazons, but (without doing tinctures) the ‘stars and bars’ is a fess, in canton a circle of 13 estoiles of five points. The battle flag would involve a saltire with estoiles.”

    That’s also a recipe for hot and sour soup. True story.

  • whheydt

    Re: Modusoperandi @ #34…

    SF writer Poul Anderson was active in the Society for creative Anachronism for many years as “Sir Bela of Eastmarch”. His arms had two suns, palewise (that is, as if mounted one above the other on a pole) and a saltire (also known as a St. Andrew’s cross). It was, in true heraldic tradition, canting arms on his real name.

    If people have too much trouble figuring it out…I’ll post how it works.

  • azpaul3

    There are hundreds of these specialty plates available in Texas. Take your pick.

    In addition to people, groups and organizations also have a right to free speech. That includes the State of Texas. They can determine, without the Federal government telling they cannot, what symbol, words and ideas they want and don’t want on their property, their license plates. If the people of Texas do not like a specific design approved by the citizens committee that makes these determinations then they have the right to protest, influence to have it changed. It is not a matter for the Federal government.

    We tend to think that because it is a State and a form of government that Texas has no such free speech right. It has, not only the right, but the obligation to present itself and its citizens to the world in whatever ways it and its citizens so desire. These plates represent not just the specialty organization presented but the State and all of its people.

    If Josephine wants to support Ducks Unlimited she has a choice of two plates. She can support the Girl Scouts, the Marine Corps, even Florida State University (yes, on a Texas Plate). If she wants to support Nazis for Zyklon-B, well, that’s not available so Josephine will have to make a different choice or go with the generic no message model.

    Remember what major name is on the plate. It reads “TEXAS” not “JOSEPHINE”.

  • tomh

    @ #28 Michael Heath writes:

    “The policy of the state of Texas is to promote sports”

    And is the policy of Texas to promote out of state universities, such as Kansas State, Florida State, LSU, among about 20 other out of state universities who have specialty plates? Or commercial enterprises, like Mighty Fine Burgers with their own specialty plate? That’s a mighty weak argument, to claim they’re using specialty license plates to promote state policies.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    tomh, to be fair, Mighty Fine Burgers are pretty good.

  • EnlightenmentLiberal

    @Michael Heath

    I’m with the majority as well. I think most reasonable people perceive messages on license plates as government sanctioned speech. I do.

    And @John Pieret

    The right to drive is a right. It’s a constitutionally protected right. (See SCOTUS Bell v Burson.) It serves no proper government purpose to require a driver to perform certain speech in order to enjoy my right to drive. Allowing the government to compel me to certain speech is contrary to proper first amendment and ninth amendment jurisprudence. It is completely inappropriate for the government to require me the private citizen to be its spokesperson, and it should be stricken on that grounds alone.

    The proper first amendment and ninth amendment jurisprudence is to recognize that it’s private speech, and thus you must allow everything with no content discrimination, or you recognize it’s government speech, which means that a strict scrutiny standard must be adopted for compelling me to perform speech for the government. If it’s government speech, vanity license plates and custom license plates should not be allowed at all, and there should be a single uniform, minimalist license plate design. Just a string of letters and numbers for identification, and perhaps a single constant design to allow for easy identification of authenticity, identification of the state of issue, and identification of the period of issue (ex: California has tags of different colors that go on the license plate to allow a cop to easily identify out-of-date registration). There should be absolutely no advocacy of any political issue – that would be a gross violation of my first and ninth amendment rights.

    IMHO.

  • sigurd jorsalfar

    This sounds like one of those decisions that in years to come will be referred to as ‘very distinguished’,

  • http://www.facebook.com/robin.pilger Robin Pilger

    Can we get a specialty plate that promotes the prohibition of specialty plates?

  • EnlightenmentLiberal

    To put it another way:

    The decision authorizes the government to perform viewpoint discrimination with absolutely zero compelling government purpose. The net result is that the government becomes a gatekeeper with viewpoint discrimination powers for how the citizen may express itself in a particular way. That is IMHO blatantly against the spirit and purpose of the first amendment. This decision makes no sense at all. It’s horrible, and inexcusable.

    The government can promote whatever viewpoints it wants on its own time (subject to the usual restrictions). However, my car is my thing, and there is no compelling government purpose that can overcome a proper strict scrutiny standard for forcing me to be complicit in promoting any political viewpoint.

    The idea that the license plate is the government’s thing is a bullshit irrelevant red-herring. It’s on my car, and the government requires that I display it publicly on my car in order to exercise my constitutionally protected rights (my right to drive a car on public roads). It serves no compelling state interest that can overcome a strict scrutiny standard to compel me to display a license plate with a particular viewpoint advocacy in order to enjoy my rights as a citizen.

  • Michael Heath

    azpaul3 writes:

    In addition to people, groups and organizations also have a right to free speech. That includes the State of Texas. They can determine, without the Federal government telling they cannot, what symbol, words and ideas they want and don’t want on their property, their license plates.

    This is wildly wrong on at least three counts. First, states have powers not rights. Rights are held by individual people. In this case the court describes what the state can do as an entitlement.

    Secondly, the federal government is the supreme power of the land. It has jurisdiction to hear this controversy and could have found that Texas didn’t have the authority to express some content on its license plates. Texas would have to abide by that ruling given the supremacy clause of the U.S. Constitution.

    Lastly, this very case notes that states have limited authority regarding speech. I quote the ruling:

    That is not to say that a government’s ability to express itself is without restriction. Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech . . .

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Michael Heath “Secondly, the federal government is the supreme power of the land.”

    And Michael’s too modest to mention it, but he’s the supreme power of the seas. I’m wind, obviously. Together, with another character who is the supreme power of light and a fifth who is supreme power of the West Jubilee Neighborhood Association Community Gym and Pool, we form Multron and battle giant monsters, giant aliens and the like.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    I’m sorry, that should read “the West Jubilee Neighborhood Association Community Gym and Pool Entertainment Committee“. Obviously.

  • grendelsfather

    The State exercises final authority over the messages that may be conveyed by its specialty plates, it takes ownership of each specialty plate design, and it has traditionally used its plates for government speech

    I doesn’t matter what the decision says. It very clearly is not government speech. The State of Texas practically begs individuals and groups to send in ideas to be placed on license plates. They are soliciting private ideas for public display, exactly as if they were providing a government owned area to display nativity mangers or satanic abominations thereof. If they do not want to facilitate what some wanker bureaucrat feels is an odious idea on a license plate, then they should not facilitate any ideas from the public at all.

    Pro tip – If you ever find yourself agreeing with Justice Thomas, your first response should be to take a cold shower and try again.

  • Michael Heath

    grendelsfather writes:

    I doesn’t matter what the decision says. It very clearly is not government speech.

    [. . .]

    Pro tip – If you ever find yourself agreeing with Justice Thomas, your first response should be to take a cold shower and try again.

    While J. Thomas joined the majority, the opinion was written by J. Breyer and also joined by Justices Ginsburg, Sotomayor, and Kagan. Using your same logic, “pros” will typically side with Ginsburg, Sotomayor, Kagan when they’re opposed by Scalia, Alito, Kennedy, and Roberts.

    The court also addresses the fact that while the state of Texas does solicit messages from the public, that state ultimately decides which speech the state of Texas will publish on its license plates. In this very case the state of Texas chose not to endorse the confederate flag on its license plates. This is “very clearly” government speech, as the court’s majority held contra the opinion of Roberts, Scalia, and Alito.

  • EnlightenmentLiberal

    This is “very clearly” government speech, as the court’s majority held contra the opinion of Roberts, Scalia, and Alito.

    Yes, it’s so-called “government speech”, and the government also happens to mandate that it must go on my car, compelling me to be their spokesperson. Any sane first amendment plus ninth amendment jurisprudence should say no to that. Either it should be my speech on my car, or it should have to be narrowly tailored to serve a compelling government interest ala a strict scrutiny standard. Anything else is flagrant government viewpoint censorship, which has a long history of being unlawful.

  • Anri

    Correct me if I am wrong, but this decision would seem to suggest that it would be completely constitutional for a state to eliminate all plates except one with a specific, narrow, doctrinal message, and have that as the single available design, yes? Say for example a crucifix?

    Would that be a decision consistent with the separation of church and state?

    Would that be a decision at odds with this ruling?

    (I get that this is highly unlikely to actually occur, but then again, Utah…)

  • http://motherwell.livejournal.com/ Raging Bee

    If the government is going to open its property — license plates, in this case — to outside groups to express a message, it cannot pick and choose which ones they will allow to have access to it on the basis of the viewpoint being expressed.

    This is bullshit, and one reason it’s bullshit is that you’re ignoring the “captive audience” problem: whatever messages the government allows you to put on your license plates are, literally, in the faces of whoever ends up behind you on the roads. So the government is obligated to prevent its legally-required license plates from conveying messages that threaten to create a hostile environment on public roads. Just because they allow university logos and the like, does not automatically obligate them to allow plates that say “FUCK YOU” or have swastikas or other overtly hostile or threatening messages.

    I think it would be better if states got out of the business of allowing a public necessity — the need to register and identify motor vehicles — to be used for other purposes, such as message or vanity plates for extra revenue. But just because they are allowing this, does not automatically mean they can’t enforce a reasonable standard of appropriateness.

  • dingojack

    What’s the policy on these plates?

    If I bought a used car with custom plates that had the cheery message “Fuck off Nigger, you’re not welcome here”* on them, would the DMV let me change them to something else without charge? If I traded them in for plates that simply had the car’s government mandated licence number** on them could I get a refund on the cost of the custom plates I didn’t want, on the car I legally purchased?

    (remember: I can buy and sell the car – but not the registration plates as a separate item since the registration is ‘owned’ by the government).

    What’s the deal?

    Dingo

    ———

    * otherwise known as the Confederate flag (note: when flown over publically owned building — well that’s a completely different matter – it’s traditional)

    ** let’s not forget that cars are legally obliged to display number plates. Opting out is not an option.

  • dingojack

    For instance if I wanted to sell (or buy) a copy of Mein Kampf, that’s fine because it’s totally my choice, I can sell it to (or buy it from) anyone. The ‘speech’ involved in owning a copy of Mein Kampf is entirely personal.

    If I want to buy or sell the aforementioned numberplate (as an item in of itself) well there’s only one possible buyer or seller, the government. So who owns the ‘speech’ in this case?

    Dingo

  • eric

    @51: most states’ policies require you get a certain number of petitioners or applicants for a specialty plate before they will create one. That’s a content-neutral time/place/manner restriction. I think they also restrict profanity.

    In Texas they do it slightly differently: you don’t have to get a certain number of people to back/request a plate, but you do have to put up $8,000 if they approve your design, and you only get that money back if the state sells 800 plates or more. Again, that’s (IMO) a perfectly reasonable content-neutral restriction.

    Other than that, yeah I agree with Ed the courts got this one completely wrong; this group shouldn’t be treated any differently than Texas parrotheads or Longhorn alumn or dog-lovers or any other group that requests a specialty plate; they shouldn’t be forbidden their plate merely because of the flag and group name.

  • dingojack

    eric – think you kinda missed the whole point there. You might want to re-read my post.

    Dingo

  • eric

    If I bought a used car with custom plates that had the cheery message “Fuck off Nigger, you’re not welcome here”* on them, would the DMV let me change them to something else without charge?

    Well, two things:

    (1) in the US, plates are issued for specific owner/vehicle combinations. So no that would never happen because if I bought your car, you would be required to remove your plates and I would be required to get new ones for that car when I register it (i.e., when I register my ownership of it).

    (2) Such a plate would likely never be approved because of its profanity.

  • eric

    Re: @52: you can’t “sell” your license plates for others to use, so they are not like a book. See above. You can keep’em after you’ve sold your car, throw them away, or sell them as novelty items, but the new car-owner can’t use your old plates for his/her car.

  • eric

    @50: how is a license plate different in that ‘captive audience’ aspect than a roadside billboard? The billboard is private property…but so is the car in front of me. And I can’t really avoid billboards any more than I can avoid other cars.

  • tomh

    @ #48

    the government also happens to mandate that it must go on my car, compelling me to be their spokesperson.

    How does the government mandate this? You have to pay extra for specialty plates, no one has to display them.

  • http://motherwell.livejournal.com/ Raging Bee

    Actually, eric, you CAN avoid looking at billboards, more easily than you can avoid looking at other cars. Also, while license plates are on privately-owned cars, those cars are on public roads; so an offensive message on license plates does more to create a hostile atmosphere on public roads than a stationary billboard you can ignore and drive past.

    Also, license plates exist because of a legal requirement, and they’re public property even if they’re attached to privately-owned vehicles; which means states have a greater obligation to regulate license plates than to regulate billboards.

  • dingojack

    So eric, it’d be perfectly fine, if I could get 8000 signatories to a petition and get them to donate a dollar each — I could have printed by the government:

    Stars & Stripes with a ‘second-coming headline’ that reads “Fuck you nigger, you’re not welcome here!” or NOAA publish a report emblazoned with the title “Climate change is total crap”

    and, as long as the run is long enough, no one would, or could, reasonably construe that as government endorsed speech, right? It’s an just open forum.

    @@

    Dingo

  • dingojack

    Yes eric – that’s the whole point it’s not like a book (or a tee-shirt). You can’t freely buy and sell number plates that can be attached to actual vehicles — because the number plate is the registration for that vehicle, and the registration is ‘owned’ by the government.

    Dingo

  • dingojack

    If you want to wave a home-made, or even a privately printed, sign that says: “Down with abortion” (let’s say) that’s one thing, waving one printed by the government (with the clearly official imprimatur of the State of Texas or the USA, let’s say), well that’s something else entirely.

    Dingo

  • Die Anyway

    Dingo @52

    Maybe auto sales are different where you are, but here (Florida, USA) the tag stays with the original owner and is not transferred to the buyer of the vehicle. If you purchase another vehicle you can transfer the tag, otherwise you are supposed to destroy it. In reality, many people save their old plates and maybe decorate their garage wall with them. I haven’t heard of anyone being arrested for improper handling of old license plates though.

    Florida has 2 versions of its standard plate. Both have a picture of an orange in the center. Version 1 has the motto “In God We Trust” embossed across the bottom and version 2 has the county of origin embossed across the bottom. We also have the usual range of specialty plates as well as vanity lettering. And we have the same sorts of controversies over what will be accepted as a specialty plate and what will be allowed as a vanity expression. I requested the FL tag “HAMR IT” and wasn’t sure they would allow it since it implied operating the vehicle in an unlawful manner. I did get it though… on (of course) version 2 of the standard plate design.

  • whheydt

    Re; eric (several posts)…

    Whether or not the plates go with the car depends on the state. In California, if I buy a car that has plates, they stay with the car, unless the seller goes to the state to have them swapped for different plates. Or I can do the same after purchase. I’m not sure what the fees are for swapping plates for an already registered vehicle, but I do know that if plates have to be replaced because one was stolen, the fee is $5 (IIRC). In that case, they issue a whole new set of plates and mark the old number as invalid in state databases.

    @ #57…

    Isn’t one of the major points about competent driving to avoid other cars?

  • eric

    @60: no, because your message contains profanity, and the US legal system has allowed free speech restrictions based on whether they contain swear words or not. You might want to stop attempting reductio ad absurdum arguments; you aren’t very good at it as you keep picking examples that would never get through for an entirely different set of reasons.

    Specific states may also have other time, place, and manner restrictions. But yes, if your state allows the Parrotheads to advertise their organization on their license plate, then as long as the Sons of the Confederacy or the KKK can meet the same time/place/manner restrictions, they should be allowed to advertise their organizations on license plates too. Even if the image they use (such as a confederate flag) implies an anti-black message. If the state doesn’t like that, there is an easy solution: stop allowing specialty license plates. They won’t do that, however, because there is money to be made in the selling of them.

  • eric

    @60: I should add that some non-profane reference to AGW being a hoax likely would get through. Specialty license plates already include things like “Choose Life.” So they have no problem (in principle) with groups requesting political issue positions.

    And frankly, why should I care? You know what lesson I take away from that? The lesson that the government endorses suckers giving them money (in some states, on an annual basis!) for an over-engineered, over-priced bumper sticker. Someone wants to pay my state $20/year for a message they could slap on their car for $2.50, I say let them go for it. Its an idiot tax, and a far less invidious one than a lottery.

  • EnlightenmentLiberal

    @Raging Bee

    captive audience

    That makes no sense. That seems like an argument for government censorship of bumper stickers too. I reject that position. I fail to see how you can consistently call for government censorship of vanity license plates but not call for government censorship of bumper stickers.

    @tomh

    How does the government mandate this? You have to pay extra for specialty plates, no one has to display them.

    On that legal theory: The government requires me to display some license plate. The government then allows certain messages to be displayed on this license plate. Thus, the government is allowing certain people to express certain viewpoints on their car in a certain way, and the government is preventing other certain people from expressing certain other viewpoints on their car in the same way. That is classic viewpoint discrimination, and government censorship based on viewpoint discrimination has always been strictly unlawful.

    @dingo

    and, as long as the run is long enough, no one would, or could, reasonably construe that as government endorsed speech, right? It’s an just open forum.

    Doesn’t matter to me. Doesn’t excuse the government viewpoint censorship. If your issue is that big of a problem the government has a way out that doesn’t involve unlawful viewpoint discrimination: stop granting vanity license plates.

    @eric

    the US legal system has allowed free speech restrictions based on whether they contain swear words or not.

    Only for public radio, in an abomination of a decision.

  • eric

    @67: AFAIK there have been a bunch of cases where people requested vanity (rather than specialty) plates, and not gotten them on the grounds that the State does not have to allow swear words even as it allows other vanity messaging. In states where such cases have been adjudicated, I doubt very much the specialty plate question would turn out any different from the vanity plate question.

  • EnlightenmentLiberal

    @eric

    By the arguments of the majority opinion and many people in this thread, this isn’t a free speech issue, because it’s government speech. A completely bullshit position IMHO, but if that’s your position, you cannot also cite it as an example of government restrictions on private speech.

  • EnlightenmentLiberal

    Continued:

    To be fair I suppose, it’s a fair critique of my position. On my position, it is another unfortunate decision limiting free speech. So, swearing on radios, and general viewpoint discrimination on custom license plates.

  • Michael Heath

    Anri writes:

    Correct me if I am wrong, but this decision would seem to suggest that it would be completely constitutional for a state to eliminate all plates except one with a specific, narrow, doctrinal message, and have that as the single available design, yes? Say for example a crucifix?

    License plates, including speciality plates, are government speech. So a state can have only one message if that’s what the state chooses to do (within certain restrictions and prohibitions). That was the status quo until a few decades ago. E.g., Michigan’s plates promoting the Mackinac Bridge.

    The states have not been delegated authority to promote only a crucifix, which the referenced ruling also generally declares. I quoted the court verbatim on that point in a prior comment post above @ 43.

  • EnlightenmentLiberal

    So a state can have only one message if that’s what the state chooses to do (within certain restrictions and prohibitions). That was the status quo until a few decades ago. E.g., Michigan’s plates promoting the Mackinac Bridge.

    I would argue that even most situations of this kind are unconstitutional, esp. if it communicates a particular political message (as opposed to a mere picture of a bridge). Again, where in the constitution does it say that the government gets to require me to be their spokesperson in order to exercise my constitutional right to drive a car on public roads? I sure don’t see it.

  • sabrekgb

    @ 72 EL

    my constitutional right to drive a car on public roads

    I hear all the time that this is a privilege.

  • EnlightenmentLiberal

    @sabrekgb

    And such people are full of shit. Such sentiment is exactly contrary to the spirit of the US Constitution, and definitely contrary to the understanding of law and common law of the founders.

    Thankfully, modern SCOTUS decisions have actually stated (more or less) that driving is a constitutionally protected right. The state can still require a license, but the granting of the license must meet a compelling government purpose, due process must be applied, the granting of licenses must not be arbitrary, etc.

    For a start, check out the SCOTUS decision Bell v Burson.

  • tomh

    @ #67

    “The government requires me to display some license plate. The government then allows certain messages to be displayed on this license plate. Thus, the government is allowing certain people to express certain viewpoints on their car in a certain way, and the government is preventing other certain people from expressing certain other viewpoints on their car in the same way.”

    And you consider this to be the government “mandating” you to carry their message? In spite of the fact that you can display a generic plate with no message at all? That seems a rather tortured interpretation.

  • EnlightenmentLiberal

    @tomh

    Agreed. But then the problem becomes one of viewpoint discrimination. That the government allows the citizen a choice of license plate betrays the lie that it’s purely government speech. It’s in some part citizen speech, and that means that the government is engaging in viewpoint discrimination of private person’s speech, which should be flagrantly unconstitutional.

  • EnlightenmentLiberal

    @tomh

    Put it like this: The government is allowing some citizens to express themselves in a certain venue, but denying that same right to others, via viewpoint discrimination. It should have been an easy-and-shut 9-0 case. It’s horrifying that the court got it so wrong.

  • http://motherwell.livejournal.com/ Raging Bee

    That seems like an argument for government censorship of bumper stickers too.

    Two points in response to that asinine analogy. First: Why not? They’re visible to everyone, not just adults, so it’s perfectly appropriate to restrict their content, just as we restrict the content of billboards and daytime TV and radio. We’re adults here, I’m pretty sure we can come up with reasonable standards that allow legitimate opinions without allowing blatantly racist, obscene or hateful messages.

    And second: Bumper stickers are private property, with no legal mandate; and license plates are state property, placed on privately-owned vehicles to serve a valid public interest whether or not their owners like it. If you really can’t see the crucial difference here, then you’re just too dumb — or too dishonest — to participate in this conversation.

    That is classic viewpoint discrimination, and government censorship based on viewpoint discrimination has always been strictly unlawful.

    Your interpretation of the law is ridiculously simplistic, and quite possibly made-up. We’ve been through this before, and you know it: yes, the government can indeed keep obscene, hostile, or insulting “viewpoints” out of certain public forums, while allowing less obscene, less hostile and less insulting “viewpoints” in said forums. So yes, a state can allow plates that say “Support breast cancer awareness” without automatically having to allow “NGGR DIE” or “Death to the Jews.” You can’t keep on calling that “strictly unlawful” unless you can cite a law or Supreme Court ruling that says so.

    By the arguments of the majority opinion and many people in this thread, this isn’t a free speech issue, because it’s government speech. A completely bullshit position IMHO…

    Once again, EL, you show your total disengagement from reality. License plates are required by law, and they are owned by the government, and issued, displayed, or revoked, according to government rules. The government decides what goes on them, and whatever message goes on them is clearly there by government permission. These are known facts that are not contested by either side in this case. Therefore, by any reasonable standard, they are government speech. The only “completely bullshit” position I see on this thread is yours.

    Put it like this: The government is allowing some citizens to express themselves in a certain venue, but denying that same right to others, via viewpoint discrimination.

    Put that way, the government is not denying certain PERSONS a right, as your wording so clumsily implies; it’s enforcing the same restrictions on all persons.

  • colnago80

    Re Enlightened Liberal @ #74

    As usual, it appears that Enlightened Liberal is playing lawyer without a license. The SOCTUS decision he sites does not say, contrary to his claim, that a driver’s license is not a privilege. This was a very narrow decision involving an uninsured motorist having an accident and being required after the fact to post a bond to cover potential costs to the victim in the event that he is found liable, without being able to produce evidence as to his lack of liability. Let me quote from the decision:

    If the statute barred the issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment. Ex parte Poresky, 290 U. S. 30 (1933); Continental Baking Co. v. Woodring, 286 U. S. 352 (1932); Hess v. Pawloski, 274 U. S. 352 (1927).

    Note that the decision specifically stated that a state has the right to required the holder of a driver’s license to either have a certain level of liability insurance or to post a bond prior to a license being issued or renewed. As an example, this is the law in the State of Virginia.

    In other words, your interpretation of the decision is not on all fours as the lawyers say.

  • colnago80
  • EnlightenmentLiberal

    @Raging Bee

    First: Why not? They’re visible to everyone, not just adults, so it’s perfectly appropriate to restrict their content, just as we restrict the content of billboards and daytime TV and radio. We’re adults here, I’m pretty sure we can come up with reasonable standards that allow legitimate opinions without allowing blatantly racist, obscene or hateful messages.

    yes, the government can indeed keep obscene, hostile, or insulting “viewpoints” out of certain public forums, while allowing less obscene, less hostile and less insulting “viewpoints” in said forums.

    Put that way, the government is not denying certain PERSONS a right, as your wording so clumsily implies; it’s enforcing the same restrictions on all persons.

    Parodying Raging Bee: “The government is not restricting anyone’s right to speech because everyone is allowed to support breast cancer awareness. Everyone is equally restricted in what they can express, and so it’s ok.” Just fuck.

    Raging Bee: Supporting government viewpoint censorship, tyranny, and oppression, since 19XX.

    Seriously, if you like government censorship and tyranny that much, why don’t you get the hell out of this country and move to Russia, where they keep the children safe from all of the things that might harm them, like that nasty gay propaganda. Your kind of moralizing and paternalism would fit right in.

    Also:

    just as we restrict the content of billboards and daytime TV and radio

    I am pretty sure that there is no such law for billboards nor TV (give or take nudity and sex due to public nudity laws). Billboards can contain all the profane language one wants. The unfortunate court decision regarding swearing on radio broadcasts might also cover TV broadcasts, but it sure as hell doesn’t cover cable TV. You can swear all you want on cable.

    @colnago

    First thing’s first. I never said nor implied that “right” means “cannot be licensed”. I even said otherwise above.

    Quoting EL from above:

    Thankfully, modern SCOTUS decisions have actually stated (more or less) that driving is a constitutionally protected right. The state can still require a license, but the granting of the license must meet a compelling government purpose, due process must be applied, the granting of licenses must not be arbitrary, etc.

    As to what the decision actually said. Here’s the relevant part:

    Quoting Bell v Burson:

    bolding added:

    If the statute barred the issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment. Ex parte Poresky, 290 U. S. 30 (1933); Continental Baking Co. v. Woodring, 286 U. S. 352 (1932); Hess v. Pawloski, 274 U. S. 352 (1927). It does not follow, however, that the amendment also permits the Georgia statutory scheme where not all motorists, but rather only motorists involved in accidents, are required to post security under penalty of loss of the licenses. See Shapiro v. Thompson, 394 U. S. 618 (1969); Frost & Frost Trucking Co. v. Railroad Comm’n, 271 U. S. 583 (1926). Once licenses are issued, as in petitioner’s case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases, the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Goldberg v. Kelly, 397 U. S. 254 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a “right” or a “privilege.” Sherbert v. Verner, 374 U. S. 398 (1963) (disqualification for unemployment compensation); Slochower v. Board of Education, 350 U. S. 551 (1956) (discharge from public employment); Speiser v. Randall, 357 U. S. 513 (1958) (denial of a tax exemption); Goldberg v. Kelly, supra (withdrawal of welfare benefits). See also Londoner v. Denver, 210 U. S. 373, 210 U. S. 385-386 (1908); Goldsmith v. Board of Tax Appeals, 270 U. S. 117 (1926); Opp Cotton Mills v. Administrator, 312 U. S. 126 (1941).

    The case in short is that the allowance or “entitlement” granted by the government to drive a car must not be done arbitrarily or capriciously, and due process must be granted if this “entitlement” is removed. The decision says verbatim that this is true whether you want to call it a “right” or a “privilege”.

    Thus, in technical terms, the court did not say that driving is a “right” per se. The court did say that no matter what you call it, right, privilege, whatever, it cannot be denied without good cause, and due process must be followed.

    In the language of the common person, “privilege” carries the connotation that the allowance can be revoked at any time, for any cause, with no particular resource. Using the word “privilege” denotes a kind of servility and indebtedness. Ex: “How wonderful it is that the government has chosen in its good graces to allow me to drive”. That has it exactly wrong. The court made that clear in no uncertain terms in that decision. If your driver’s license is denied to you without good cause, without a compelling governmental purpose, then you can sue, and you can win. In actuality, and according to the court’s decision, I have the inalienable right to drive a car, and a license to drive a car must be granted absent a compelling government purpose otherwise.

    I suggest you read the whole decision, again if necessary.

  • EnlightenmentLiberal

    Ok, technically I overstepped the conclusions of this particular court decision. This court decision merely addressed how due process applies for state action to terminate the license. I can find other court decisions that also state or imply that the government must issue a driver’s license absent a compelling government purpose otherwise. Thus completing my arguments.

  • http://motherwell.livejournal.com/ Raging Bee

    Seriously, if you like government censorship and tyranny that much, why don’t you get the hell out of this country and move to Russia, where they keep the children safe from all of the things that might harm them, like that nasty gay propaganda. Your kind of moralizing and paternalism would fit right in.

    Once again, Entitled Liar pretends to be a ConLaw scholar, and then falls back on childish name-calling the minute he finds himself debunked. And the fact that he directs such childishness to me, then follows it with a far more grownup dissertation in response to another commenter, proves he’s capable of grownup discourse, and gives up on it when he loses an argument.

  • colnago80

    Re Enlightened Liberal

    In many states, one must pass a multiple choice test and an in-vehicle driver’s test in order to obtain a driver’s license. In some states, passing the multiple choice test is required to have a license renewed (e.g. California). This is in addition to the requirement in many states that either one must have liability insurance or post a bond to obtain same (in New York State, the requirement is restricted to acquiring liability insurance). Thus it would seem that, to anyone who is not besotted with libertarianism, that a driver’s license is a somewhat restricted right, more akin to a privilege. In contrast, there is no such requirement to someone owning a vehicle, anyone can own a vehicle without restriction (in many cities, e.g. New York City, many wealthy people do not have driver’s licenses but own a vehicle and depend on chauffeur’s to drive them.

  • colnago80

    Re Enlightened Liberal

    By the way, here’s another restriction on your “right” to drive. There are 3 items involving the privilege of driving. The state in which the driver’s license is issued, the state where the vehicle is licensed, and the state in which one is driving. In many states, two of the three items must be met (e.g. New York State). If, for instance, one has a driver’s license issued in California, is driving a vehicle licensed in Oregon, and is in New York State, one is driving illegally in the latter. E.G. the State of New York does not consider the driver’s license to be valid in such a scenario.

  • EnlightenmentLiberal

    @colnago80

    That’s nice. I still fail to see how that contradicts anything of substance which I’ve said. You think that “right” means “requires no license”. SCOTUS doesn’t care if you want to call it “right” or “privilege” – the same due process protections apply. Driving is not something granted to the citizen at the whim of the government. It is an entitlement which the state shall issue absent a compelling government purpose otherwise.

    I’m surprised you of all people would prefer the language of subservience to the government rather than that of freedom.

    If you think this is a libertarian position, then SCOTUS and the founders were libertarians, a rather laughable idea.

  • EnlightenmentLiberal

    @Raging Bee

    I see very little name calling. I see accurate descriptions of your position, e.g. “moralizing” and “paternalism”, and I see sound advice if you want to live in a censorial dictatorship which will protect you from all of that nasty stuff you don’t want to see, e.g. “move to Russia”.

    Also tone trolling.

    Also ignoring the rest of my substantive arguments, and ignoring my corrections to many of your erroneous points of law, such as the fictitious law that prohibit swearing on billboards and tv (minus broadcast tv). Using tone trolling as a means of refuting the point while also not addressing any actual points, which means you’re the one actually doing ad hom. Congrats!

  • EnlightenmentLiberal

    I was talking with several friends about this decision. Part of the discussion was hampered because of confusion and disagreement about what the case actually is.

    One of my friends brought up a great example of stamps. There are a lot of US postage stamps, and they are perhaps designed by committee, and the perhaps committee perhaps sometimes uses proposals from the public. That’s not what’s going on here.

    What is going on here is that Texas has a general “shall issue” policy when someone asks for a custom plate, unless and except the bureaucrats strongly dislike the particular message.

    From the dissenting opinion:

    https://supreme.justia.com/cases/federal/us/576/14-144/dissent4.html

    Once the idea of specialty plates took hold, the number of varieties quickly multiplied, and today, we are told, Texas motorists can choose from more than 350 messages, including many designs proposed by nonprofit groups or by individuals and for-profit businesses through the State’s third-party vendor. Brief for Respondents at 2; see also Texas Department of Motor Vehicles, online at http:// www . txdmv . gov / motorists / license-plates / specialty – license-plates (all Internet materials as visited June 12, 2015,and available in Clerk of Court’s case file); http:// www . myplates . com .

    Drivers can select plates advertising organizations and causes like 4–H, the Boy Scouts, the American Legion, Be a Blood Donor, the Girl Scouts, Insure Texas Kids, Mothers Against Drunk Driving, Marine Mammal Recovery, Save Texas Ocelots, Share the Road, Texas Reads, Texas Realtors (“I am a Texas Realtor”), the Texas State Rifle Association (“WWW.TSRA.COM”), the Texas Trophy Hunters Association, the World Wildlife Fund, the YMCA, and Young Lawyers.[2]

    There are plates for fraternities and sororities and for in-state schools, both public (like Texas A & M and Texas Tech) and private (like Trinity University and Baylor). An even larger number of schools from out-of-state are honored: Arizona State, Brigham Young, Florida State, Michigan State, Alabama, and South Carolina, to name only a few.

    There are political slogans, like “Come and Take It” and “Don’t Tread on Me,” and plates promoting the citrus industry and the “Cotton Boll.” Commercial businesses can have specialty plates, too. There are plates advertising Remax (“Get It Sold with Remax”), Dr. Pepper (“Always One of a Kind”), and Mighty Fine Burgers.

    The words and symbols on plates of this sort were and are government speech, but plates that are essentially commissioned by private entities (at a cost that exceeds $8,000) and that express a message chosen by those entities are very different—and quite new. Unlike in Summum, history here does not suggest that the messages at issue are government speech.

    Texas has space available on millions of little mobile billboards. And Texas, in effect, sells that space to those who wish to use it to express a personal message—provided only that the message does not express a viewpoint that the State finds unacceptable. That is not government speech; it is the regulation of private speech.

    Perhaps that is the source of some of the disagreement here. If it was just like stamps where there was a central committee who created a small pre-approved list, and there was no “shall issue” culture surrounding suggestions for new things, then that’s totally constitutional IMHO. US postage stamp practice is constitutional.