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.