It’s just a license plate
This may be surprising to those who know me, but I don’t think I have a problem with a state government producing “choose life” license plates but not allowing an opposing view such as “respect choice.” I could almost sum up my reasoning for this with the simple statement, “It’s just a license plate.” But that would make it sound like it was a flippant decision based on a gut instinct rather than an opinion based on constitutional law.
In the case Walker v. Texas Ranger … rather Texas Div., Sons of Confederate Veterans, Inc. the state of Texas was trying to keep the Confederate battle flag off of its license plates. I initially had trouble with the reasoning of the four liberal justices plus Clarence Thomas who formed the majority in the case. They deemed the license plate messages “government speech” and for a minute I thought I might agree with the dissenters that the idea of “Rather Be Golfing” as government speech sounded too ridiculous to be true. But after thinking about it a little more I realized that what the conservative justices were getting wrong is that the state of Texas wasn’t speaking of its own opinions or official policies; it was repeating slogans or printing the names of institutions that it doesn’t necessarily find unacceptable. And, while that might seem like content discrimination, it actually isn’t because it really is government speech.
Imagine a license plate design that never gets purchased during it’s entire lifetime of availability. Would the conservative justices still say that the plate contains the speech of a citizen? It most certainly makes a statement, i.e. speech, and the only originator possible is the government. Just because the driver of a vehicle buys a license plate and thereby repeats the speech of the government doesn’t change the fact that it’s also government speech. Obviously, two or more individuals can broadcast the same opinion.
You might ask how the government can support some opinions and choose not to support others without it being content discrimination. Well, it happens all of the time. Governments frequently pass resolutions that state an opinion or make laws that enforce their opinion. A license plate that reads “Choose Life” is no more or less legal than a resolution condemning or supporting abortion or a law preventing government funds from being used for abortion. Many resolutions and laws like that have been passed.
However, I disagree with the opinions of both the majority and the dissenting justices that government speech is not regulated by the 1st Amendment. If that were the case, Congress could pass a resolution that respects an establishment of religion or decries members of a certain race. If government speech was immune from regulation by the First Amendment, our currency could have “In God We Trust” printed on it, and believe me it most certainly cannot under the first part of the 1st Amendment, the Establishment Clause. You see, the Supreme Court Justices were thinking of the wrong part of the First Amendment.
A government couldn’t produce a license plate that condones slavery because that would be the endorsement of a government policy to allow slavery, which is forbidden by the 13th Amendment. By extension, Texas not only doesn’t have to, buy may not produce a license plate with the Confederate battle flag on it because said flag endorses slavery. A town could establish a designated hill on which people were permitted to plant signs espousing their political beliefs. This would be highly inadvisable, since citizens would be allowed to promote slavery or espouse any other reprehensible belief in that forum. Similarly, if people are allowed to erect Christian symbols on that hill then others could erect signs containing atheistic messages or satanic symbols. These are the problems that governments have run into so often during winter holidays.
The difference is thusly established between government speech and a government-provided forum for citizens’ speech. The former isn’t subject to the Free Speech Clause of the 1st Amendment, but it is subject to other parts of the Constitution. For the latter, the government is forbidden from discriminating based on the content of speech.
So lets look the other way when we see a silly little license plate bearing an offensive message. But let’s not look the other way when the government violates the Constitution by regulating speech based on content. Let’s get that Establishment Clause violating slogan off of our currency.