Tuesday, March 31, 2015

Clearing Up the Court’s Confusion About License Plates

Corey Brettschneider

Corey Brettschneider & Nelson Tebbe

Last week, the Court heard arguments in Walker v. Sons of Confederate Veterans, the Texas license plate case. Neither side’s lawyer could offer a coherent theory of the case, and the Justices seemed equally confused. We have offered an approach that clears up the confusion in a straightforward way. Here, we show how that approach generates answers to the Justices’ questions at oral argument. Those answers suggest that Texas did not violate the Constitution by rejecting the plate.

In brief, here are the facts. Specialty license plates are produced by the state, often at the request of a nonprofit, but they only appear on cars if they are selected by drivers for a fee. Typically, a portion of the fee goes to the group and a portion goes to the state. Texas currently offers hundreds of specialty plates, and it generates significant revenue from them.

In this case, Texas denied an application by the Sons of Confederate Veterans to sponsor a specialty license plate that would have exhibited the group’s name and logo alongside an image of the confederate battle flag. After the group submitted its application, Texas solicited comments from the public and learned that many Texans consider the confederate flag to be offensive. Consequently, Texas denied the application. The group sued, arguing that its freedom of speech had been violated.

At the core of the case is a dispute over whether specialty plates are government speech or private speech. If the government is speaking, then the government speech doctrine applies and the state can select the messages it wishes to convey without violating the free speech rule against viewpoint discrimination.

If specialty plates constitute private expression, by contrast, then Texas may well have to abide by the rules governing public forums. According to those rules, it could not discriminate on the basis of viewpoint and any content discrimination must be reasonable in light of the purposes of the forum. Almost certainly, those rules would not allow it to exclude the confederate group’s plate.

So are specialty plates government speech or private speech? Our answer is that they are both—they are a form of mixed speech. Texas offers the plates, but they are not displayed unless private drivers choose them. That means that in order to figure out the right result in a particular case, the Court should compare the government’s interests and the private interests, and it should rule in favor of the side whose interests are more significant, taking into account not just public policy but also constitutional values.

In Walker, Texas has an interest of constitutional magnitude in avoiding the reasonable perception that it is endorsing what many citizens would take to be racist speech. That imperative is stronger than the group’s speech interest, which can be partially satisfied with a bumper sticker.

This simple approach is powerful enough to answer all of the Justices’ questions—something neither lawyer was able to do at last week’s oral argument. For instance, the lawyer for the confederate group argued simply that the plate would involve only private speech, and therefore that Texas could not discriminate against the group’s message—or anyone else’s. But he ran into trouble when the Justices started asking about limits. Justice Ginsburg led by asking whether the state could deny a plate that displayed a swastika. The lawyer answered that it could not, a response that left the Justices dumbfounded.

Although some scholars have responded to us by arguing that a state cannot select among specialty plates at all, the hypothetical swastika plate shows why that argument is wrong. Moreover, the argument is mistaken even if anti-Semitic speech that is purely private remains fully protected. The risk that a racialized message will be associated with the state is too great. Justice Kennedy repeated Justice Ginsburg’s swastika question several times and in several forms, and he always got the same answer—even a “racial slur” would be protected. Justice Scalia then pointed out the obvious consequence of the group’s theory, namely that Texas would have to abandon its specialty license plate program altogether. And Justice Kennedy asked whether that would actually curtail private speech—an ironic result given the group’s emphasis on protecting private speech.

A better approach would be to recognize that of course Texas has a legitimate interest in excluding racialized messages on specialty plates, because of the reasonable concern that those words would be associated with the state. Moreover, Texas’s concern would have constitutional status because the Equal Protection Clause prohibits the state from endorsing such messages. So the state’s interest in denying applications for plates that harm equal citizenship for nonwhites is rooted in the Constitution. Even if flying the confederate flag is not itself unconstitutional, Texas has a unique interest in avoiding speech that it thinks implicates equal protection values. This interest is distinct from merely avoiding offense. It is about rejecting complicity in a message that triggers constitutional concerns.

Justice Breyer repeatedly asked about the state’s reasons for rejecting the plate. Texas’s lawyer here consistently appealed to his client’s concern about offensiveness. But the interests at stake here are more distinct and important than offense, which often has little weight in the context of the First Amendment. This was an invitation to discuss the equal protection interests that Texas has in rejecting a symbol that many people take to be associated with slavery and therefore at odds with equality principles. It is because the message is not just offensive but potentially unconstitutional that Texas has an overriding interest in rejecting the plate. Although the confederate group’s interest in speaking also is supported by the Constitution, it can be satisfied by a bumper sticker, as Justice Breyer pointed out.

Furthermore, the Establishment Clause would place at least some limits on specialty plates—again suggesting that they cannot constitute purely private speech. Although some existing plates contain religious references, it presumably would be unconstitutional for Texas to offer a specialty plate that read “Texas is a Christian State,” even if the plate were proposed by a private group and displayed only by private choice. Just as Texas could invoke an equal protection interest in rejecting the confederate plate, so too it could invoke a nonestablishment interest in rejecting plates that seem to involve official endorsement of a particular religion. All these examples work together to suggest that the plates are partly attributable to Texas, which for that reason has an interest in rejecting ones that abridge strong public policies, including constitutional commitments.

On the other side, Texas’s lawyer argued that the plates are government speech, and therefore that the state could reject the confederate flag plate without violating the Constitution. But he too had difficulty answering the Justices’ questions about limits. For example, Justice Kagan asked whether the state could sponsor a plate that said “Vote Republican” without offering a “Vote Democrat” plate. Texas’s lawyer had no clear answer to this hypothetical, which recurred throughout the argument.

Our view is that Texas would be constitutionally obligated to avoid discriminating against the Democrat plate—and that shows that there are important private speech interests at stake, too.  Justice Kennedy came close to suggesting that limit when he asked “[i]s there a First Amendment standard that you can use to deny [the ‘Vote Republican’] plate?” Because specialty plates involve private speech as well as government speech, they must avoid blatant viewpoint discrimination.

Moreover, Texas would have good reason to reject the “Vote Republican” plate in the first place—because of the government speech component. As we have each argued, the Constitution in fact places numerous constraints on government speech. One of those constraints is a prohibition government electioneering that is probably best rooted in the Speech Clause itself. Texas could have a legitimate concern that it would be associated with those messages and that there would be a real risk of impermissible government electioneering. No government entity should be allowed to engage in an official endorsement of a particular political party.

In a thoughtful response to our argument, John McGinnis has questioned whether anyone would attribute the confederate flag to the state, given the plethora of messages on specialty plates, some of which conflict with each other. But Texas’s name on the plate may give the reasonable impression that this speech carries the government’s imprimatur. Moreover, the comments section of our recent piece provides a rough sample of opinion on whether the plates are state or private speech. Commenters split relatively evenly on the question. Perhaps for this reason, Justice Sotomayor took the position at oral argument that specialty plates involve “hybrid speech,” both public and private. 

Of course, approaches that require the Justices to weigh competing interests have well-known downsides. But in this particular area of law, recognizing that license plates constitute both government speech and private speech, and considering the interests that support each side, offers an approach for settling the cases that is clear and compelling.

Corey Brettschneider is Professor of Political Science at Brown University.

Nelson Tebbe is Professor of Law at Brooklyn Law School and Visiting Professor of Law at Cornell Law School.

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