There are two ways for a court to decide a case. It can hear the facts, research the law and arrive at a conclusion based on that process. Using this method, the court has no idea how the case will turn out until the process plays itself out. In my naïve world, I like to think this is how it is supposed to work.
The other method is for the court to determine in advance what it wants the result to be and then find a way to get there. I call this “outcome based” jurisprudence. And I hate it. It is a type of “ends justifies the means” cynical approach to the law.
Unfortunately, a five member majority of the United States Supreme Court adopted the outcome based approach in the recently decided case of Walker v. Texas Division, Sons of Confederate Veterans. I have blogged about this case previously.
The case involved the State of Texas and its program that allowed motorists to submit designs for vanity license plates. For a fee, any motorist could get the design printed on state issued license plates. Well, almost any motorist. When The Sons of Confederate Veterans submitted a design featuring the Confederate battle flag – the infamous stars and bars. The Texas Department of Motor Vehicles Board rejected the design. The SCV challenged the denial, contending the decision violated their First Amendment right of free expression.
Now I get that for many people, the Confederate battle flag is offensive. But there is not a First Amendment exception for offensive speech. It’s pretty offensive to burn the American flag. But the Supreme Court in 1989 found such conduct is protected speech. We don’t have “hate speech” laws in the United States, as do many European countries precisely because the First Amendment prohibits such laws. The fact that others can utter speech that offends me is a price I willingly pay to live here.
But apparently, for the five member majority, the reference to the Confederate flag was just a little too offensive. And it apparently decided to uphold the Texas action. But how? Texas restricted the speech of its citizens based on the content of that speech. That is viewpoint discrimination in its purest form. What is a court majority who’s already made up its mind to do?
In this case, the majority took an unrelated legal principle and jammed the facts of the case into it. There is a legal principle that holds that the government is not subject to the First Amendment when it speaks. And this makes a certain amount of sense. A federal, state or local government is free to erect a monument to a historical figure and cannot be required, on First Amendment grounds, to erect a monument to the dissenting view. So, if the city of Selma, Alabama wishes to commemorate Martin Luther King’s march there, it need not erect a KKK statute across the street.
So in order to get to its preordained decision, the Supreme Court concluded that the private messages displayed on the license plates were in fact the state of Texas speaking. And given that fairly enormous logical leap, it concluded that Texas could reject the SCV design.
There are of course, some flaws with this reasoning. First, the messages are not supplied by the state of Texas. They are supplied by private parties, who pay a fee for their ability to display the message. It is not like any government entity selects or designs the message. They are designed and supplied by private parties.
And the notion that every privately supplied message is “government speech” the minute it gets printed on the license plate is ludicrous. As the dissenting opinion points out, under this theory , a plate bearing the slogan “I’d rather be golfing” would apparently convey official Texas policy. Worse yet, a plate displaying a Notre Dame logo would indicate the State of Texas had
finally come to its senses decided to support the Fighting Irish as a matter of policy.
The specialty plates are not government speech. They are small billboards upon which the state allows drivers to place messages for a fee. And viewed in this fashion, the majority opinion makes even less sense. As the dissent points out, imagine Texas erected full size digital billboards up and down the Texas highway system. And imagine Texas used the billboards to display government messages, but also allowed private entities to pay to display its messages. Would anyone think it okay for the government to reject messages because it didn’t agree with the message? Or because it deemed the message “offensive?” And isn’t that exactly what’s happening with the license plate program?
I’m not calling for a total free for all here. Texas may certainly reject unprotected speech – e.g. obscene speech or speech that incites readers to imminent lawlessness. But merely offensive speech should be off limits. And that is the result the majority should have come to. No matter how much that offended them.