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Free Speech is not a Vanity

In March the Supreme Court will hear a case in which a Texas group is appealing the state’s refusal to style vanity license plates that include an image of the Confederate flag.  The plaintiff’s argument rests on First Amendment rights:  because Texas allows other citizens to choose images for license plates, the state is violating the right to free speech by suppressing this group’s preference.   Another license plate case is being hammered out in the lower courts in North Carolina. There the ACLU is suing on behalf of a plaintiff who wants a pro-abortion vanity license plate, given that the state permits pro-life licenses.

One might think that these cases should be decided the same way, but Corey Brettschneider and Nelson Tebbe suggest otherwise in a characteristically thoughtful oped in The New York Times.  The authors argue that messages on license plates are a mixture of private and public speech.  Thus the Court should balance the private interest in free expression with the public interest in permitting the government to control its own messages.  They conclude that Texas can suppress the vanity plate bearing an image of  the Confederate flag but that North Carolina must permit the pro-choice sentiment because the Confederate flag is a symbol contrary to the constitutional values of equal protection of the law, while pro-abortion sentiments endorse a legally guaranteed constitutional right.

I respectfully disagree.  Although the government has no obligation to provide the opportunity for messages on vanity plates (and if I were a legislator, I would not vote to have them), it should not discriminate among messages based on their content once it opens up this space.   First, the question of whether this is public or private speech is best understood to depend on what a reasonable observer would think. Brettschneider and Tebbe believe that someone unfamiliar with vanity license plates might think the state was putting its “imprimatur” on the Confederate message and thus the message has aspects of speech by the government. But should our constitutional rights be limited by the ignorance of a certain number  of our fellow citizens?   And the fact of  vanity license plates is pretty common knowledge.   A reasonable person seeing their variety would hardly think that all their sometimes conflicting  sentiments reflect the government’s own message or even endorsement.

Second, the authors’ balancing test imposes significant costs, by requiring the judiciary to weigh the government interest’s in avoiding associations with some messages and not others. This test puts the judiciary perilously close to judging the value of a message– the very thing the First Amendment is designed to prevent. What if someone wants a vanity license plate celebrating smoking?   Like abortion, that is also a legal (albeit not constitutional) right, but something the government spends millions of dollars trying to discourage. Why would that interest not be sufficient for suppression under this test? Moreover, the First Amendment has long protected messages that advocate changing existing law.

My greatest concern is not with the authors’ proposed resolution of these particular cases but the kind of jurisprudence it endorses, one in which the Constitution’s enumeration of rights seems merely an invitation to judges to make decisions such as they think wise.  Such open-ended tests provide a mechanism to put a thumb on the scale in opposition to liberty. The Constitution protects relatively few rights against the states, but it should be a formidable shield for the rights it protects as absolutely as those under the incorporation of  the First Amendment, even when that expression, like the rebel flag, may be understood to express sentiments that most of us despise.   Government can abridge rights to speech only for the most compelling reasons   Confusion of the ignorant is a flimsy one.

Reader Discussion

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on January 12, 2015 at 16:56:16 pm

Ok, McGinnis, fine. Be reasonable and persuasive. See if I care.

How 'bout this: Following some act of Mideast terrorism, a Jewish lobby rents sign space in the public subway to say, in effect, Muslims are terrorists. The subway balks, knowing that the signs (and everything in the vicinity) will be defaced within 20 minutes of being displayed -- but the courts listen to McGinnis and declare that the public subway cannot refuse to post the ads.

So the subway begins posting signs at the bottom of ads saying, "This is a paid advertisement of [sponsoring entity] and does not necessarily reflect the viewpoint of [the public subway administration]. But they put up these notices only on some ads, but not others -- in effect, engaging in viewpoint discrimination.

Whadaya say now, smartypants?

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nobody.really
on January 12, 2015 at 20:15:11 pm

I don't see the issue here.

I have the freedom to give out bumper stickers with messages of my choice on them, even if the messages are offensive to some people. People are free to put those stickers on their personal property. The federal government is not granted a right to interfere with this freedom.

The state has been given the legal right to give out license plates with messages on them, per the will of the democracy that supports and establishes the state and the states laws. If the democracy chooses to allow some messages and not others, the democracy may do so. That is how democratic rule works. I'm almost surprised that the ACLU does not understand this.

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Scott Amorian
on January 13, 2015 at 09:23:25 am

Ha. That's ... pretty compelling.

In other words, the license plants are not examples of government interfering with private speech. Rather, they are examples of government speech. Some citizens choose to disseminate that speech, while others do not, but no citizen has the right to compel government to promote her own favored message, or to refrain from some disfavored message. There's no problem that citizens might be led to conclude that a given license plate reflected government putting its “imprimatur” on a given message -- because government is doing precisely that.

The counter-argument is rooted in extreme libertarianism: Government should be empowered to pursue bona fide state purposes and nothing else. Sending messages unrelated to a state purpose is simple proselytizing, in violation of the Establishment Clause.

(Admittedly, my counter-argument is fairly theoretical because, with a little creativity, I can tie pretty much any message to a "bona fide state purpose." But it's the principle that counts!)

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nobody.really
on January 13, 2015 at 11:02:10 am

"Sending messages unrelated to a state purpose is simple proselytizing, in violation of the Establishment Clause. "

My god (Oops, is that also a violation of the Establishment Clause) - you have truly outdone yourself here. This is what it has come to - any message deemed offensive by some silly crank, some self righteous moralist, is now to be prohibited upon the basis of the Establishment Clause. Gee, I did not know that it read: And the State shall allow no puny little weenie to be offended by any of the meanies that may be amongst you.

Grow the Foxtrot up!!!!! - all of you poor little darlings. What, were you denied orange slices as a child after you lost your baseball game???

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gabe
on January 13, 2015 at 11:55:32 am

This is what it has come to – any message deemed offensive by some silly crank, some self righteous moralist, is now to be prohibited upon the basis of the Establishment Clause. Gee, I did not know that it read: And the State shall allow no puny little weenie to be offended by any of the meanies that may be amongst you.

Well, no -- the policy would apply only to government messages. Private messages would receive First Amendment protection.

And this theory is part of my effort to rein in government -- except where it is inappropriate to rein in government. Think about it: Why should your tax dollars to go funding bogus speech? Thus,

- Should government be in the education business (except, perhaps, as a provider of last resort in insular areas -- remote Alaskan villages, or the US Embassy in Saudia Arabia)? Or should it simply finance private education?

- During WWII, was it appropriate for government to finance propaganda films spreading stereotypes about people of German and Japanese descent? Should government run anti-smoking campaigns including baseless depictions of sinister tobacco executives?

- Should government fund arts organizations, or public broadcasting? By what standard does government select which messages it will underwrite? If there's no real standard, isn't this just viewpoint discrimination, pure and simple?

- Should government run campaigns encouraging people to buy lottery tickets? Or providing dramatic, yet wholly fictional, depictions of life in military service?

- Should government put up religious Christmas decorations in disregard of the perspectives of non-Christians -- and moreover, in disregard of the perspectives of sincere Christians who regard the carival-that-is-Christmas as the basest caricature of their sincere faith?

Again, I could make arguments tying most of these forms of speech to some bona fide governmental purpose, so even if courts would embrace my Establishment Clause theory, it might not do much good. But it would be a foothold!

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nobody.really
on January 13, 2015 at 12:06:32 pm

Oh, and the borrow a page from the Republicans, should government be in the business of generating documents for the benefit of illegal aliens?

It's one thing for the executive to exercise proprietorial discretion in deciding which cases to pursue -- but to expend resources aiding and abetting people who violate the law? This looks like REALLY bogus speech to me (even if it may have some salutary consequences as a matter of public policy.)

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nobody.really
on January 13, 2015 at 12:18:13 pm

Hey fair enough!

My point had to do with the *establishment* basis of your argument not with the notion that government ought to stay out of so many of the areas it currently sees fit to enter. Using establishment clause as a predicate for denying government action in these areas takes us beyond both the original and even the current perverse understanding of the clause and may give rise to an increased sense of *right* on the part of all the little *orange slice-deprived* amongst us.

My own take is that license plates should be license plates and nothing else even if it means I can not get a "Seahawks Super Bowl Champion" plate for my broken down old truck!!!

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gabe
on January 13, 2015 at 19:02:36 pm

Now, really!

The question of the extreme libertarian is: What is the proper role of government in a democracy. Let me redirect the question slightly.

The Constitution requires that every state be "a republican form of government." What is that exactly? Does a republican form of government allow the democracy to use its government for self expression through the government? Or is a republican form of government limited in what the citizens can do by its definition?

Those are topics I would enjoy reading more about from the many luminous authors in this forum.

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Scott Amorian

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.