Gentle Readers, I somehow convinced myself that I had written on this case. It turns out that I have not, as I learned via Twitter. Other bloggers have weighed in on the subject. I don’t feel that I have a great deal to add, but the issue is worth thinking about all the same.
The relevant facts, as I see them, run as follows: Texas raises money, sometimes a great deal of it, by selling vanity license plates. You can get the numbers and letters you like, provided someone else hasn’t filed first. Private groups can further submit to the state designs in of their choosing and receive a cut of the revenue generated by them. The Texas Sons of Confederate Veterans put forward their plate design and Texas refused it. The design bore, as one would expect, a Confederate flag. The SCV sued and the case reached the Supreme Court (PDF) this past week.
My previous opinions on the use of Confederate flags still stand, but I think Texas’ case is very weak. The state, whatever formal apparatus it has set up to vet submissions for plates, has adopted a nigh-absolute lack of discretion in practice. As Andy Hall notes, you can get Texas plates in more than two hundred different brands, including those of universities from outside of Texas. That alone makes its refusals conspicuous and worthy of closer looks, even aside other issues. One might have a very unusual sort of submission with content problematic for other reasons. A plate including an explicit endorsement of violence against minorities would probably not pass muster. The SCV plate doesn’t do that.
That said, having read Texas’ argument before the Court I think they do have a point that by putting a group’s advertisement on their license plate they have given it a form of state endorsement. The ad adorns an official state document. The state receives money from its issuance. It literally goes into business with the SCV, should it sell the plates. The state has an obvious and legitimate interest in controlling what messages go out, again literally, under its name. However, by what nineteenth century Americans might call its promiscuous issuing of plates, Texas has essentially yielded its ability to do so in the given forum.
Otherwise, as the justices note in oral arguments, one creates a precedent where Texas could sell plates reading “Vote Republican” and refuse to issue “Vote Democratic”. It could put the same message on all its election materials, presumably down to the paper ballots themselves. Anybody would recognize that as obvious partisanship and, I hope, an improper use of state power for electoral advantage. The license plates, then, come down to one of those all or nothing positions where we either must affirm the rights of individuals to buy the plates and so participate in a relatively unregulated public forum which the state has created, or close up the forum. Texas, and other states, can close the door they opened. But if they do so, they must close it for everyone.
One does not have a principle if one yields it to inconvenience. This inevitably means at times we find ourselves on the side of people or messages we find personally loathsome. Either one supports equal rights, or one doesn’t really support rights at all but rather particular privileges that accrue to oneself at the expense of others. That kind of hypocrisy never goes out of fashion and we will probably never purge ourselves of it entirely, but we have more options than perfection or perfect stagnation. We can manage better, even if we can’t reach best.
This will give little consolation to people who have to look at the plates and know the history of the symbol, of course. I don’t mean to trivialize their objections, which I share. An official state plate does transgress good taste more than a private bumper sticker would, but I think both fall under the exercise of free speech.