The personalized license plate is as American as … well, ever seen one in any other country? On Monday, not for the first time, the Supreme Court took up the equally quirky American question of free speech in the license plate context. At issue is a decision by Texas to block an organization from using the Confederate battle flag as a license plate logo.
Many free-speech advocates think the state shouldn’t be able to pick and choose what symbols should appear. Texas wants to exclude a flag that has come to symbolize the violent repression of black Americans.
Who’s right? There’s a legal answer to this question, but it turns out to be surprisingly complicated.
The free-speech clause of the First Amendment looks simple on the surface: “Congress shall make no law abridging the freedom of speech.” But because “no law” has never really meant no law at all, and because “Congress” was extended by the 14th Amendment to include the states, a large body of judicial doctrine has developed to interpret and apply this brief phrase. And by “large” I mean large enough that just the most important opinions, carefully edited, fill a fat casebook.
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Two of the strangest and most fascinating doctrines arguably conflict when it comes to license plates. One is the doctrine of the “limited public forum.” This judge-made rule says that, when the government opens a certain physical or notional space to forms of public speech, it can’t favor or disfavor any particular viewpoint. If, for example, schools are made publicly available after class for civic and educational purposes, the government can’t say that only liberals and not conservatives can use those spaces. The government can in principle limit this kind of public forum to certain subject matter — but not to favored viewpoints.
Because Texas allows more than 300 civic organizations to buy space on its license plates, free-speech advocates say that the state has created a limited public forum in branded logo plates. If that’s right, the sons of Confederate veterans who want to put the Confederate battle flag on a license plate should win their case. The government can’t favor nonracist speech over racist speech, because racism is a viewpoint, albeit a nasty one.
But that’s only half the legal story. On the other side is a separate doctrine, known as the doctrine of government speech. According to this principle, if the government is speaking, and not a private person, then the free-speech clause doesn’t apply at all. The government is under no obligation to speak neutrally. It can advance any viewpoint it wishes, provided that viewpoint isn’t itself unconstitutional.
Courts love the government speech doctrine because it enables them to make difficult free-speech cases disappear. In the Texas license plate case, it means the state could express any view it wants on its license plates without worrying about embracing any one viewpoint. If the logos on the plate are government speech, Texas wins.
At this point you may be getting frustrated with me, or rather with the Supreme Court. “Come on,” you say, “this isn’t simply a limited public forum or simply government speech — it’s obviously both!”
Well, yes. But the Supreme Court’s judicial doctrine hasn’t really clarified what would happen if the case presented a true hybrid between a limited public forum and government speech. The law insists on slotting every example into one of the two boxes. And which doctrinal box the court chooses dictates the outcome of the case.
On reflection, you can see why. The free-speech clause is to protect the public from government. That demands government neutrality. But the government would be paralyzed if it had to remain neutral in its own speaking.
One solution to the license plate problem would be to say that the tie goes to the runner— and the runner is the public. When the case is close, and it’s colorable to say that the government has opened a limited public forum, the court could choose that approach in order to maximize speech. That’s likely to be the approach of Justice Anthony Kennedy, the court’s free- speech maximalist. Here, the government can’t be picking and choosing very carefully if it has allowed so many organizations to sponsor license plates.
An alternative solution, cutting it away, would be to see the government as acting like a business in this case. Valuable real estate on the license plate isn’t ordinarily given away free. It’s like a product sponsorship carefully regulated by professional sports league. If that’s the case, then the government certainly is speaking — and it should be free to limit its brand however it wishes, including to wholesome viewpoints.
Both of these are plausible approaches, but there’s something worrisome about government speech doctrine expanding to include ideological product endorsements. The Supreme Court should probably take a more speech-protective approach, and treat the license plates as a limited public forum. Then the public would have to realize that there really isn’t any official government endorsement of license plate speech. At least not in the United States.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard and the author of six books, most recently “Cool War: The Future of Global Competition.”
© 2015, Bloomberg News