The Supreme Court today issued rulings in six cases. The opinions total some 220 pages, and I haven’t had time to review them with care. But in this post and one or two others I will nonetheless hazard some tentative comments:
The result—and reasoning, and coalition—that most surprised me came in Walker v. Texas Division, Sons of Confederate Veterans. The issue in that case was whether the Texas DMV violated the First Amendment when it rejected a proposed specialty license plate that featured a Confederate battle flag. Justice Breyer, joined by the other three liberals and—surprise!—by Justice Thomas, ruled that specialty license-plate designs constitute government speech, so the Texas DMV has free rein to accept some designs and reject others. Justice Alito’s dissent strikes me as devastating. An excerpt:
Here is a test. Suppose you sat by the side of a Texas highway and studied the license plates on the vehicles passing by. You would see, in addition to the standard Texas plates, an impressive array of specialty plates. (There are now more than 350 varieties.) You would likely observe plates that honor numerous colleges and universities. You might see plates bearing the name of a high school, a fraternity or sorority, the Masons, the Knights of Columbus, the Daughters of the American Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver.
As you sat there watching these plates speed by, 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? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?
Will the majority’s expansive view of what constitutes government speech have ominous implications in other areas? I’ll be interested in reading what First Amendment experts have to say on the matter.