The issue on appeal relates to the Texas state law that says the DMV can reject any application for a specialty license plate if that plate's design "might be offensive to any member of the public." Plenty of Texans testified to the DMV board that they were in fact offended by the proposed SCV plate's design, because they recognize the Confederate battle flag to be both a historical symbol of hate and a contemporary tool of racial intimidation, and the board voted the SCV's application down for that reason.
But there is nothing in the Constitution granting the right to go through life unoffended. To the contrary, the First Amendment requires us to pretty much suck it up and get over it if someone chooses to use his or her individual right of free speech to offend us. The question the Court has agreed to decide is whether a specialty license plate is part of an individual's private speech, in which case the Texas law against offensiveness is clearly unconstitutional, or if it is part of the state's speech, in which case the First Amendment does not apply and the Texas DMV is free to choose not to offend people.
There seems to be no firm legal category to contain the possibility that a specialty license plate is in fact a hybrid of private and state speech: the individual requests the specialty plate because he or she supports the specialty content, and the state endorses the specialty content by manufacturing and distributing the plates. Both the individual and the state seem to have spoken.
The one dissenting Fifth Circuit judge argued for just such a category:
A fundamental error in the majority opinion is describing the government-speech doctrine as presenting a binary choice: government or private speech. . . . Texas does not prevent SCV from engaging in speech on its or its members' cars in the same way that speech has traditionally been made: by license plate frames, bumper stickers, window stickers, window flags, or even painting cars with the Confederate flag. If SCV and its members can do all of those things, why is it seeking an order from a court compelling Texas to sell Confederate plates? The answer is the same answer in Summum [a precedent case involving a monument a religious group had attempted to donate to a municipal park]: SCV seeks the kind of "adoption" and "embrace" that comes with being on Texas license plates, with appearing next to the state's flag, name, and likeness, and being given the kind of validation that follows from appearing on a state-issued license plate. It is precisely the reason that SCV wants to force Texas to produce these plates that it should be denied a court order doing so. Texas, like Pleasant Grove [the municipality in Summum], cannot be forced to associate with messages it does not prefer.
The analogy applies in another important respect. Unlike pamphleteering, speeches, marches, picketing, and bumper stickers--all of which unquestionably involve private speech, even if they occur on government-owned property--erecting monuments and manufacturing specialty license plates both require the government's assistance and complicity. That distinction, yet again, makes specialty plates more like park monuments and less like leafleting and bumper stickers.Because of Texas's dumb law, it may be too late for the DMV to reject the plates for the right reason: because they would honor men who took up arms against the United States. Part of the SCV's argument for the plates is that Texas already issues specialty plates honoring Korean War veterans, Vietnam veterans, buffalo soldiers, women veterans, and other such groups; therefore that its refusal to issue plates for Confederate veterans amounts to viewpoint discrimination. Texas failed to make
|Over 3500 Union soldiers are buried at Gettysburg National Cemetery. |
It should be needless to point out they were killed by Confederate soldiers.
Confederate soldiers insisted they weren't Americans and considered themselves the army of a foreign nation, and denying them tribute on specialty license plates is viewpoint discrimination only if Texas issues such plates honoring veterans of the Viet Cong or the Luftwaffe. If the fact that the Confederates were nonetheless of domestic vintage is considered relevant, then Confederate soldiers deserve specialty plate recognition the same day other failed violent domestic groups such as the Weather Underground, FALN, and the Symbionese Liberation Army do so. As long as Texas would be within its rights to deny applications for specialty plates to any of those veterans, it should be able to deny the SCV application.