Supreme Court Gets Free Speech Case Totally Wrong

Supreme Court Gets Free Speech Case Totally Wrong June 21, 2015

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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