George F. Will: A Texas-sized license plate dispute
WASHINGTON — The Battle of Palmito Ranch near Brownsville, Texas, on May 13, 1865, is called the last battle of the Civil War, but the Texas Division of the Sons of Confederate Veterans (SCV) might consider that judgment premature, given its conflict with the state’s Department of Transportation and Department of Motor Vehicles. This skirmish is of national interest because it implicates a burgeoning new entitlement — the right to pass through life without encountering any disagreeable thought.
Under Texas’ specialty license plate system, plates can be created by the Legislature by specific enactments, or can, for a fee, be designed by individuals, nonprofits or businesses. In the private instances, Texas is selling space for advertising. The specialty plates exhort (“Be a Blood Donor”), emote (“I’d Rather Be Golfing”), celebrate (NASCAR, many universities) and commemorate (“Buffalo Soldiers,” “Korea Veteran”).
The Texas SCV’s design caused a commotion because the organization’s logo includes the Confederate battle flag. The Texas DOT committee that approves specialty plates approved the SCV plate before it disapproved it because an official considered the plate “controversial.” The Texas Transportation Code says the state may refuse to create a plate “if the design might be offensive to any member of the public.” Yes, any.
A district court rejected the SCV’s contention that this decision was unconstitutional but the 5th U.S. Circuit Court of Appeals held that specialty plates are private speech, so the state had violated the First Amendment by engaging in viewpoint discrimination against the SCV.
Texas is appealing to the U.S. Supreme Court, probably in vain. The SCV’s brief notes that “every circuit to address a specialty plate program enabling private parties to submit their own specialty plate designs has held that the plates constitute private speech, the First Amendment applies, and regulation has to be viewpoint neutral.”
By now there is, believe it or not, a body of license plate law. In 1977, the Supreme Court upheld the right of a Jehovah’s Witness in New Hampshire to edit out, with tape or metal shears or otherwise, that state’s license plate slogan “Live Free or Die.” The plaintiff held that “life is more precious than freedom” and the state could not compel him to “foster” religious or political “concepts” with which he disagreed.
Some language that is put on plates by legislative action — e.g., Idaho’s “Famous Potatoes” — is government speaking its mind and need not be neutral. In Illinois, where specialty plates require a specific legislative enactment, when a pro-life group sought a “Choose Life” plate, the state decided to exclude the subject of abortion, pro and con, so the denial was viewpoint neutral.
Texas, however, denied the SCV plate explicitly because it, with its flag, was “offensive,” which is an impermissible reason for denying speech. The hearing that forbade the SCV plate approved a Buffalo Soldiers plate in spite of some Native Americans saying they were offended by this reference to the 19th-century African-American military units that participated in battles against Native Americans. In 2011, however, the Supreme Court held:
“The Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather … the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.”
The new entitlement aims to spare the people this burden. At many American colleges and universities, where thinking goes to hibernate, freedom of expression is restricted for the purpose of sparing the delicate sensibilities of the most exquisitely sensitive persons on the campuses. The First Amendment is construed to stipulate that there shall be no abridgement of free speech — unless the speech annoys, saddens, angers, dismays or otherwise discombobulates the emotional equilibrium or intellectual serenity of any listener.
Inevitably, this entitlement is expanded to include the right to assume a fetal position and be absolved of burdens if news of some event in the wider world distresses some students. So, Columbia University Law School recently allowed students to postpone final exams if these frail flowers felt that their performance would be “impaired” because they had been traumatized by the fact that grand juries in Ferguson, Missouri, and Staten Island, New York, did not indict police officers in cases involving Michael Brown and Eric Garner.
Columbia evidently is training lawyers for an America so tranquil it will not need any lawyers. Tranquil because silent.