Free speech on li­cense plates

Los Angeles Times - - OPINION - Any Amer­i­cans

Mwho find the Con­fed­er­ate bat­tle flag of­fen­sive will have no prob­lem with the Supreme Court’s rul­ing Thurs­day that Texas was free to re­ject a spe­cialty li­cense plate that in­cor­po­rated that flag in its de­sign. But the 5-4 de­ci­sion was a mis­take that un­der­mines an im­por­tant prin­ci­ple: that once the gov­ern­ment cre­ates a fo­rum for pri­vate ex­pres­sion, it can’t pick and choose among the mes­sages that are con­veyed.

That’s what the Texas Depart­ment of Mo­tor Ve­hi­cles Board did when it re­jected a pro­posed spe­cialty li­cense plate de­signed by the Sons of Con­fed­er­ate Vet­er­ans while ap­prov­ing myr­iad spe­cialty plates spon­sored by other groups. While the vet­er­ans group re­gards the Con­fed­er­ate flag as a sym­bol of the brav­ery of their an­ces­tors, oth­ers un­der­stand­ably see it as an em­blem of white supremacy.

But the ques­tion for the court wasn’t which of those in­ter­pre­ta­tions of the flag is cor­rect. It was rather whether the pro­posed spe­cialty plate should be con­sid­ered pri­vate speech or gov­ern­ment speech. If the mes­sage on the li­cense plate is viewed as the speech of the in­di­vid­ual driv­ing the car, the gov­ern­ment would have no right to re­strict what could be said. But Jus­tice Stephen Breyer, writ­ing for the court, opted for the al­ter­na­tive in­ter­pre­ta­tion, adding that when gov­ern­ment speaks, “it is not barred by the Free Speech Clause from de­ter­min­ing the con­tent of what it says.”

Breyer’s gen­eral point is cor­rect. But the Texas spe­cialty li­cense plate pro­gram was de­signed not to com­mu­ni­cate the state gov­ern­ment’s opin­ion but to en­cour­age in­di­vid­u­als — for a fee — to use the plates as me­tal­lic bul­letin boards to prop­a­gate the mes­sage they en­dorse. That is com­pa­ra­ble to open­ing up a public park for all com­ers to make po­lit­i­cal speeches.

In a dev­as­tat­ing dis­sent, Jus­tice Sa­muel A. Al­ito Jr. noted that Texas now of­fers 340 spe­cialty plates pro­mot­ing col­leges, univer­si­ties, Ma­sonic groups, NASCAR driv­ers and even a burger res­tau­rant. (Other mes­sages are po­lit­i­cal, such as “Choose Life” and “Don’t Tread on Me.”) “As you sat there watch­ing these plates speed by,” Al­ito asked, “would you re­ally think that the sen­ti­ments re­flected in these spe­cialty plates are the views of the state of Texas and not those of the own­ers of the cars?”

Taken to its log­i­cal con­clu­sion, the ma­jor­ity’s the­ory would al­low a state gov­ern­ment to au­tho­rize spe­cialty li­cense plates with an anti-abor­tion mes­sage but re­ject those that es­poused a pro-choice view — or to ap­prove plates that said “Vote Repub­li­can” but not “Vote Demo­cratic.”

States are un­der no obli­ga­tion to sub­let por­tions of their li­cense plates for the procla­ma­tion of a mes­sage fa­vored by the car’s owner, whether it’s a com­mem­o­ra­tion of Con­fed­er­ate vet­er­ans, a pitch for re­cy­cling or an homage to the owner’s alma mater. But once they de­cide to get into the bill­board busi­ness, they may not play fa­vorites. That is what the court should have said.

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