On March 23, the Supreme Court heard arguments in Walker v. Sons of Confederate Veterans, a case presenting the question of whether the State of Texas must produce license plates bearing the Confederate flag (alongside more than 400 other specialty plates Texas offers, including one promoting a hamburger chain). As my colleague Garrett Epps writes in TheAtlantic.com, the case poses the question whether there are First Amendment limits to "government speech" -- to what the government itself may say using its bully pulpit (including license plates), and to how the government may decide what it says and what it does not.
The State of Texas allows drivers to choose from hundreds of specialty plates, many bearing the logos of colleges or service organizations, some promoting commercial products (like the aforementioned hamburgers), and some communicating clearly political messages, like "Choose Life." The Sons of Confederate Veterans want Texas to produce a license plate bearing the name of their organization and a depiction of the Confederate flag. (I was surprised to learn that nine other states, including my current state of Maryland, already allow this.) Texas doesn't want to print the plates, on the understandable ground that the Confederate flag is a divisive and, for many, an offensive symbol. But this would amount to the state's picking and choosing which messages to print on its license plates, based on controversial criteria. Clearly the First Amendment does not allow the state to pick and choose which private speech it will punish or reward based on the viewpoint presented by that speech. Can the state engage in this sort of censorship when the entity being censored is, in essence, the state itself?
As Garrett writes in his piece, current SCOTUS doctrine suggests that states are free to engage in this sort of self-censorship -- that "government speech" is a sort of First-Amendment-free zone (so long as government does not impermissibly endorse religious views), in which government is free to pick and choose what it says based on viewpoint or other content. For many, though -- including, I suspect, several Supreme Court Justices -- the result of applying this "anything goes" principle to the Walker case would be disturbing. The power of government speech is awesome, because the government has so much money to spend on communicating its message and controls so many forums for communication (not just license plates, but also airports, public buildings, buses, subway trains, etc., etc.). If the government can always decide which messages it likes and communicate only those messages, the result could be a serious distortion in the information available to the public and thus in the terms of public debate about important issues.
On the other hand, the implications of not allowing Texas to censor the Confederate flag are themselves distasteful. If Texas must issue a Confederate-flag license plate, what's next -- a swastika plate? A plate endorsing al Qaeda? As Garrett writes, it can't be the case that government must air all opposing viewpoints every time it communicates a message. When the National Park Service reminds us that "Only You Can Prevent Forest Fires," it doesn't have to follow up by saying "Forest Fires Are Fun for the Whole Family" (this of course is Garrett's clever imagery, not mine).
So the case looks like a tough one. The first thing the court has to decide is whether communications on license plates really are government speech, rather than a "public forum" like a public sidewalk or public park. It's clear that the government cannot engage in viewpoint-based censorship of private speech occurring in a public forum; Texas could not allow (say) the NAACP but not the Sons of Confederate Veterans to hand out literature in the public park. Is the material on "specialty" license plates really just private speech in a public forum?
This is, in my view, the most difficult aspect of the Walker case. On the one hand, it's pretty clear that license plates are not traditional forums for public expression, like streets and parks. They are, first and foremost, administrative documents -- tools for serving a particular ministerial function of government, namely identifying registered motor vehicles. Unlike the open spaces that serve as traditional public forums, license plates are a creation of the government, which the government could choose to eliminate at any time (if, say, RFID technology makes license plates obsolete) without creating a free-speech problem.
On the other hand, the state governments have complicated matters by creating these "specialty" plates and allowing them to be used to communicate nontrivial private messages (e.g., "Choose Life" rather than simply the University of Texas logo). By doing so, the states arguably have transformed license plates into so-called "limited" public forums, meaning locations in which private speech is allowed at certain times and for certain purposes. If license plates are limited public forums, then the state need not allow them to be used for private speech -- but once it does allow this, it cannot pick and choose which speech to allow based on viewpoint.
The Walker case might well turn on whether SCOTUS thinks specialty plates are limited public forums or rather simply examples of government speech. In order to decide the latter, the Court would have to conclude, I think, that the State of Texas typically (not just in really controversial cases, like this one) exercises discretion regarding what messages to allow on its license plates and what messages not to allow. That might demonstrate that specialty plates are not really private speech in a limited public forum (and thus immune to viewpoint censorship), but rather are government speech that happens to be prompted and supported by private actors. There is a parallel here to religious "endorsement" cases decided under the First Amendment's Establishment Clause, in which the Court has held that religious displays on public property can qualify as government speech endorsing religion, even if they were donated by a private organization. The Court's approach in the Establishment Clause context has been very fact-specific, focusing on the history of the display in question and how it would be perceived by a reasonable observer. The Court might apply a similar approach in Walker; but if it does so, the very fact-specific nature of the decision would invite further litigation over specialty license plates in other states, where the underlying facts might turn out to be crucially different.
If the Court holds that specialty plates in Texas are government speech, not private speech in a limited public forum, then I think the case becomes relatively easy. I agree with Garrett Epps that the current "anything goes" approach to government speech probably is not sustainable, and so I hope the Court doesn't simply apply that approach to rule in favor of Texas. But I think there is a narrower principle upon which the Court could draw to decide for Texas in the Walker case: the Court could rule that Texas's censorship of the Confederate flag is justified by the state's compelling interest in avoiding communicating a message of racial hierarchy or divisiveness.
In a deeply entrenched series of cases going back to Brown v. Board of Education in 1954, the Court has held that laws or other government policies that are intended to send a racist message -- a message that black schoolchildren are inferior to whites in Brown, or that blacks are not fit to marry whites, as in the antimiscegenation law struck down in 1967's Loving v. Virginia -- are unconstitutional even if they provide "equal" treatment in a material sense. In Brown, for example, the separate schools for black children maintained by the Topeka school district were physically as good as the white schools, but the Court invalidated segregation anyway -- because of the message of racial hierarchy that it communicated. When the government itself communicates a message of racial hierarchy, the Brown Court held, it is that message itself that is the unconstitutional harm.
If the government causes constitutional harm when it communicates a message of racial hierarchy, then the government has a compelling interest in not communicating such a message. And there is a strong argument that by posting a Confederate flag on its license plates, Texas would be communicating a message of racial hierarchy, which is a message that many people quite reasonably associate with that symbol. In refusing to issue Confederate flag plates, then, Texas would simply be avoiding the greater constitutional harm that (Brown and its progeny tell us) it would be committing by distributing those plates.
This reasoning is relatively narrow (a quality that might attract the more centrist Justices on the Court), in that it offers a way to avoid the slippery slope. Confederate flag plates send a message of racial hierarchy, but most other messages states regularly print on their specialty plates -- even politically controversial ones, like "Choose Life" -- do not. The Court thus would not be declaring that states may decline to print "Choose Life" plates, or that they must also print "Celebrate a Woman's Right to Choose" plates if they do. The logic of the decision would be limited to the principle embodied in Brown, Loving, and similar cases: that government endorsement of racial hierarchy is a constitutional harm that must be avoided.
Of course, the logic I'm suggesting might have implications for the nine other states that currently allow Confederate flags on their license plates (not to mention for Mississippi, which is the sole remaining state to incorporate the Stars and Bars into its state flag). If government displays of the Confederate flag communicate a message of racial hierarchy, then these states probably are (and Mississippi certainly is) violating the Equal Protection Clause by displaying that flag. I say "probably" because courts in these hypothetical future cases might find that those states' specialty plates are not in fact government speech, by the fact-specific inquiry I suggested above. And it might be possible to find in some circumstances that the meaning of the Confederate flag has become so diluted by context that it no longer embodies a message of racial hierarchy (although I am deeply skeptical of this reasoning -- particularly as applied to the flag of a state with the history of racial injustice that Mississippi has).
And of course the Court might not buy my logic. (I haven't studied the Walker case enough to know whether any of the litigants actually suggested such an approach.) If it doesn't, the Court might simply reaffirm the current notion that anything goes when it comes to government speech -- though in doing so, I think the Court would simply be putting off the inevitable need to rein in that principle eventually. Or the Court might hold that Texas's specialty plates aren't government speech at all, but rather private speech using a limited public forum. The implication of this latter holding inevitably would be to require Texas to produce the Confederate plates. Distasteful as that may be, it's far from the worst outcome one could imagine. The principle of freedom of speech includes the principle of tolerance even of speech we find deeply offensive, and so the Court should always err on the side of speech rather than censorship.
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