an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Neither Side Got it Right In The Texas License Plate Case
Both sides were mistaken in Walker v. Texas Div., Sons of Confederate Veterans. In that decision, handed down yesterday, the Court upheld Texas’s decision to deny a private group’s application for a speciality license plate featuring the confederate battle flag. That outcome was correct, but the Court’s reasoning could spell trouble in the near future.
The Court, in an opinion by Justice Breyer, ruled that specialty license plates constitute government speech, and therefore that the government can select the messages on them without interference from the First Amendment’s ban on viewpoint discrimination. Justice Alito, writing for three other dissenters, argued the converse: that the plates incorporate private speech, and therefore that the government cannot discriminate among them based on their messages.
But neither of these positions is satisfactory. As Corey Brettschneider and I argued in the New York Times and also in a post here after oral argument, and as Caroline Corbin wrote in a leading article and Mike Dorf has also contended including in a persuasive column yesterday, specialty license plates are best seen as mixed speech – they are approved and owned by the state, but they can only be displayed if drivers select and pay for them. The Court’s government speech approach cannot work because, as Justice Alito points out, Texas allows a wide variety of conflicting messages, all of which the government cannot possibly be endorsing. But the dissent’s own private speech alternative also fails, because (as Dorf says) it would mean that the government not only could allow racist speech on government plates, but would be obligated to do so. Much the same goes for speech that endorses a particular religion, despite the Establishment Clause. Moreover, the dissent’s private speech theory ignores Texas’s legitimate interest in avoiding the impression that it is endorsing a message of racial bias, which the confederate flag represents for many (if not all) citizens, and that endorsing that message would impair the equal citizenship of nonwhite Texans.
Only a mixed speech approach works, conceptually. Dorf is probably right that the Court is avoiding that theory because it would involve the Justices in balancing the government’s interest in equal citizenship against private interests in expression. But the alternatives offered in yesterday’s opinions are even more unworkable.
To see why, consider another case pending before the Justices. In Berger v. American Civil Liberties Union of North Carolina, the Court is faced with the question of whether North Carolina can offer drivers the option of purchasing a “Choose Life” license plate while refusing to offer a pro-choice plate. The Court’s opinion in the Texas case puts the more liberal Justices in a tight spot. If speciality license plates are government speech, then how can the Justices vindicate the speech interests of drivers in North Carolina who wish to counter the pro-life plate, with its official imprimatur? A pro-choice bumper sticker will not carry the same authority. By contrast, a mixed speech approach would have given the more liberal Justices a clear, principled way to rule for Texas and against North Carolina, as Brettschneider and I have argued. But after Walker, it is not clear how the Court’s more liberal Justices can protect the equal exercise of free speech among drivers in North Carolina.