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.