The Supreme Court has steered through a tricky First Amendment curve, ruling that Texas can deny a special license plate honoring the Sons of Confederate Veterans.
“When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says,” Justice Stephen Breyer wrote.
Joined by conservative Justice Clarence Thomas, Breyer and the court’s other three liberal justices concluded that “government actions and programs that take the form of speech do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.”
Texas Attorney General Ken Paxton said in a statement that the decision “confirms that citizens cannot compel the government to speak, just as the government cannot compel citizens to speak” and added that “there remains many other ways for motorists to express their views on their vehicles.”
The decision’s consequences reach beyond license plates to include Adopt-a-Highway signs and other programs associating the government with potentially controversial sponsors. These questions have previously arisen, for instance, when the Ku Klux Klan sought to sponsor a highway cleanup in Missouri.
As a rule, courts frown on the government discriminating against certain viewpoints.
When it’s the government itself that’s speaking, though, different considerations apply. The government can “say what it wishes and...select the views that it wants to express,” the court has previously ruled. When speech combines public and private, as with a specialty message license plate, the crucial question becomes how to determine which rules apply.
“In our view, specialty license plates issued pursuant to Texas’s statutory scheme convey government speech,” Breyer wrote, adding that “when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”
Noting that Texas controls what appears on a license plate, Breyer reasoned further that “a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message.”
But Justice Samuel Alito, Jr., writing for Chief Justice John Roberts, Jr. and justices Anthony Kennedy and Antonin Scalia in dissent, warned the ruling “establishes a precedent that threatens private speech that government finds displeasing” and disputed the majority’s notion that license plates appear to voice a government position.
“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?’” Alito asked rhetorically.
Former Georgia congressman Ben Lewis Jones, now chairman of Heritage Operations for the Sons of Confederate Veterans, said in an interview Thursday that the ruling exemplified political correctness run amok.
“It’s not about race, it’s about ancestry,” Jones said of the license plate messaging. “But it’s become a hot-button issue.”
The Texas specialty license plate program now includes more than 350 permitted messages. Some messages are authorized by the state Legislature and others are applied for through the Texas Department of Transportation.
Last year, Texas DMV records show, the specialty plate sales brought in a total of $17.6 million, with particularly popular messages including “State of the Arts,” “God Bless America” and “Native Texan.”
In 2009, the Sons of Confederate Veterans requested a commemorative license plate. The proposed plate depicted a Confederate battle flag framed by the words “Sons of Confederate Veterans 1896.” A faint Confederate flag also appeared in the background.
The Texas Department of Motor Vehicles Board in 2011 unanimously rejected the proposed license plate on the grounds that it was offensive because of the Confederacy’s association with slavery.
“Why should we as Texans want to be reminded of a legalized system of involuntary servitude, dehumanization, rape, mass murder?" Texas state Sen. Royce West, asked during a hearing.
Washington and Missouri joined nine other states in a brief urging the court to side with Texas’s effort to regulate specialty license plate messages. A separate challenge to North Carolina’s “Choose Life” license plates has been on hold at the Supreme Court pending resolution of the Texas case.