Walker, Texas Lawsuit

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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57 Responses

  1. Avatar Tod Kelly
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    says:

    Two comments:

    1. As always with these posts, Burt, this was fantastic. Thanks for writing it.

    2. From a more meta view than the court was able to comment, this is why I hate it when states do things like this. In Oregon, for example, we have similar license plate issues. We also have a line on our state tax form that allows us to get a tax credit of X dollars if we want the state to pass long those dollars to one of a few pre-approved charities. (Or at least we used to. For the past decade or more we’ve been hiring an accountant to do our taxes and to be honest I haven’t seen any part of an Oregon income tax form other than the place I sign my name siren the 90s. So maybe it’s gone.)

    The flawed reasoning for this is always that somehow because a corporation is non-profit that you can avoid getting into messy political battles of who the state should and shouldn’t give special benefit to based on their non-profit status. It always starts out well for a year or two, but inevitably some group that supports something controversial reasonably thinks, “We should be able to do this too,” and then everything gets ugly.

    Texas’s best bet would be to just issue license plates and get out to the business of using their department of transportation to do PR for private organizations.Report

  2. Avatar gingergene
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    says:

    Couple questions:

    Do you think that a ruling for SCV would have resulted in a free-for-all that would eventually “break” the specialty license plate business? That rather than issue plates for beyond-the-pale causes, they would simply scrap the whole concept of specialty plates?

    Do you think the states that had previously approved SCV plates will move to revoke them (and / or perhaps other specialty plates)? It would obviously be difficult for some states, like South Carolina, to make the case that the confederate battle flag is offensive, but other states might have a case.

    My view as a layperson is *similar* to yours in that the plates are a public-private hybrid. However, while I would not assume that the State of Texas endorses each viewpoint, I would assume that the State of Texas does not object to the message being conveyed. Which means that seemingly contradictory plates like U-T and Notre Dame are not really contradictory- Texas doesn’t really care about university affiliation, and has no *objections* to supporting Notre Dame, which is not the same thing as endorsing it.

    I can therefore understand a decision by Texas not to endorse (or rather to affirmatively “object” to) treason-in-defense-of-slavery via a confederate battle flag. However, as the SCV pointed out, Texas undercut that argument by its other endorsements of the confederacy. Would it have been possible that both SCV and Texas could have “won” this case if the ruling was that Texas was forbidden from selective discrimination (if Texas is in favor of CSA imagery in some cases, it must be in favor in all cases) but allowed to discriminate against certain viewpoints (no swastikas on anything)?Report

    • Avatar Kazzy in reply to gingergene
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      says:

      “However, while I would not assume that the State of Texas endorses each viewpoint, I would assume that the State of Texas does not object to the message being conveyed. ”

      @gingergene

      IANAL, but I sincerely disagree. I simply see it as the state saying, “You have a right to put this statement on your car via a mechanism that we allow other people to utilize to put their own messages on their cars.”

      Either let anyone put whatever they want or everyone gets the standard plate.Report

      • Avatar Will Truman in reply to Kazzy
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        says:

        It’s not quite that binary. You could allow by category. Any government entity (cities, school districts, etc), accredited University, etc, without a free-for-all. Where states get in trouble is when they allow outside groups without tight parameters on which kind.Report

        • Avatar Kazzy in reply to Will Truman
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          says:

          Yes, but you’d still need to justify why one category is privileged over another. And how you determine membership in a category. I mean, I guess allowing smaller entities of government could be done (e.g., you can have your home town or county acknowledged), but allow universities means allowing religious institutions which means allowing potentially very offensive schools…Report

  3. Avatar LeeEsq
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    says:

    This is a case where both sides have good points. I agree that Justice Alito’s argument is the stronger one and things could get harry for other political issues. However, considering America’s history with race and the Civil War, I can really see why states would be really reluctant to issue Confederate license plates.Report

  4. Avatar Doctor Jay
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    says:

    On reading this (and I agree with @tod-kelly it’s fantastic) what I start to wonder is what happens if A) SCV prevails, and a license plate is seen as solely private speech, and B) some people decide they want a license plate with that image that is meant to evoke Calvin (of Calvin and Hobbes) taking a piss. I’ve seen this as a bumper sticker, (or really as a window sticker). Could the State of Texas decline this? I would certainly hope that they could and would. And it might result in a very different split among the justices.

    Ok, well, obviously with the peeing Calvin, there’s a trademark infringement. But somebody could find a way around that, I’m sure. I just give it as an example of the sorts of things that people put on their cars.

    Or consider, what if someone wanted to make a Truck Nutz license plate. Should the law require that the State of Texas (or California) allow that? And would Justice Alito want to sign his name to an opinion saying that the law should do that?

    (Ref: https://triviahappy.com/articles/the-tasteless-history-of-the-peeing-calvin-decal)Report

  5. Avatar Burt Likko
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    says:

    Several questions about “what happens if SCV had won?” which seem to be asking, “what if states really did have to print all sorts of obnoxious license plates?” I’d predict that a state would make the political decision to a) stop the specialty plate thing altogether as more trouble than it’s worth, or b) maintain artistic control over the content of the plates entirely to itself and not offer the opportunity to the general public to offer its ideas.

    With that said, even without making those choices, categories of expression that are already not protected would probably remain so — Miller v. California would still be in effect, and so a state could likely censor a particular plate as “obscene” as with @doctor-jay ‘s “truck nutz” plate hypo.Report

  6. Avatar aaron david
    Ignored
    says:

    Let me also add that this is a great post @burt-likko and thank you for these writeups.

    What this readily confirms for me is that the states should not be making any custom plates. Period. Either is open to all, or closed to all. Otherwise you are going to end up with confederate plates and piss christ plates. States should never pick and choose like that.Report

  7. Avatar DavidTC
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    says:

    Am I the only person here to thinks the government shouldn’t be issuing specialty license plates at all, or at least only for their own stuff? (Like supporting parks and something.)

    Seriously, I just read an anti-LGBT letter in my local paper that, in addition to the stupid normal arguments about Biblical marriage, made the same off-handed suggestion that the government should get out of the marriage business that we all know and love.

    While people might know how I feel about that suggestion (It’s a giant cop-out because the government isn’t going to do that.), there probably are things the government *should* just stay away from as general principles unless there’s a damn good reason otherwise.

    And printing *official government things* with specific, government-defined and user-selected messages on them is probably one of them. I can’t even imagine why anyone thought that was a good idea.

    If people want to put a message on their car, that’s what bumper stickers are for.Report

    • Avatar Kolohe in reply to DavidTC
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      says:

      ” I can’t even imagine why anyone thought that was a good idea.”

      Because it’s a tax increase without being a tax increase.Report

    • Avatar Richard Hershberger in reply to DavidTC
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      says:

      “(It’s a giant cop-out because the government isn’t going to do that.)”

      It’s a perfectly reasonable position to take in an “If I were God” bull session over beer. It’s a cop-out for the reason you give when someone claims to be libertarian and pretends that taking this position, but not actually supporting gay marriage in the real world, maintains his libertarian cred. I have seen this pretty often. It supports the suspicion that a “libertarian” is a Republican with intellectual pretensions.Report

  8. Avatar dragonfrog
    Ignored
    says:

    That Pleasant Grove City v. Summum finding is interesting to me – if permitting the erection of statues is speech by the state, then how does the existing ten commandments statue make it past the establishment clause (slash how does the state get away with engaging in some but not other religious speech, as with the satanist statue in Oklahoma)?Report

  9. Avatar Mo
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    says:

    Would this same logic mean that the state can’t limit what your vanity plate says?Report

    • Avatar Burt Likko in reply to Mo
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      says:

      Except within pre-existing bounds (e.g., no obscenity).Report

      • Avatar Mo in reply to Burt Likko
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        says:

        Couldn’t similar preexisting bounds ban the CSA flag (no racist symbols)?Report

        • Avatar Richard Hershberger in reply to Mo
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          says:

          Let’s go all in: no treasonous symbols.Report

        • Avatar dragonfrog in reply to Mo
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          says:

          Depending how you define obscenity, might the act of displaying the CSA flag be considered obscene?Report

        • Avatar aaron david in reply to Mo
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          says:

          So… No Union Jack on the Hawaiian flag?Report

          • Avatar Will Truman in reply to aaron david
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            says:

            After the Confederate emblem on the Mississippi Flag, the UK emblem on the Hawaii flag is the worst, just ahead of state seals.Report

          • Avatar DavidTC in reply to aaron david
            Ignored
            says:

            Hawaii did not ever exit from the US to support United Kingdom in any war, so flying that flag seems somewhat less treasonous than flying a flag under which that state’s soldiers *actually did* attack US soldiers under.

            Likewise, the CSA, in the short span of its existence, existed only really as an enemy of the US, whereas the US shares something like 400 years of history with England, both before and after it existed, marred only by about a decade of wars.

            It’s worth pointing out that the current Union Jack is actually the United Kingdom flag, created upon Ireland and Great Britain’s union in 1808, not England or Great Britain flag. And thus, being created in 1808, it’s not the flag that opposing forces fought under in the Revolutionary war. *That* country was technically ‘Great Britain’, not the UK. (Although considering it was almost completely controlled by England, saying we were at war with England is not very wrong.)

            However, the US *has* actually been at war with the UK, in the War of 1812. And I guess they used that flag?

            But Hawaii, obviously, was not involved in that war either.

            That said…I have no idea what the hell Hawaii is doing with a Union Jack anyway, and I actually think ‘No flags of other countries on our licenses plates’ would be a reasonable rule, be they ‘treasonous’ or not. Because it’s stupidly confusing.Report

    • Avatar Chris in reply to Mo
      Ignored
      says:

      Coincidentally, the state of Texas recently made someone change their vanity plate because upside down it sorta looked like an obscenity:

      http://bgr.com/2015/04/18/license-plate-funny-texas-vanity-dmv/Report

    • Avatar DensityDuck in reply to Mo
      Ignored
      says:

      I remember seeing a plate in Virginia that read “GODZALI”, which I thought was kind of odd, but did admirably demonstrate the state’s committment to free speech.

      On the other hand they also allowed “GODANUS”, so maybe they’re just not paying attention. (And yes, I know it’s “GOD AN(d) US”, but at the same time, guys, I’d think that when I saw that plate I’d have gone back to the DMV and asked for another one)

      And, of course, there’s the infamous case of Florida plate “A55RGY”…Report

  10. Avatar DensityDuck
    Ignored
    says:

    I’m reminded of the Whiteville water tower affair.

    edit: holy cats, THAT comments section gets ka-RAZYReport

  11. Avatar Michael Cain
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    says:

    Usual outstanding job, counselor. Let me propose a hypothetical…

    We have here a (I believe) federally-mandated display area that every vehicle must have. States are required to use a considerable portion of that area to display the state in which the vehicle is registered and a unique-to-that-state identifying number. The font and minimum font size for that number is also (I believe) specified. Some portion of the border area is “available”. Some states preempt a portion of that border area — mine requires display of current month/year registration stickers in the lower two corners. Some states allow vanity numbers, but TTBOMK all states impose limits on what can be used (eg profanity is not allowed). Some states allow certain freedom of style, but again TTBOMK, all such styles must be pre-approved as the plates are produced by the state.

    Carried to its conclusion, doesn’t Alito’s argument suggest that I should be able to get a design pre-approved with a simple color scheme of text on background, with nothing in the border areas, and I can put my own personal statements in those borders? If not, how can it be considered truly private speech? If the argument is that because Texas has ~350 different pre-approved styles they have a bigger job to show that they’re not just being arbitrary compared to what a state with a very limited number of styles must do, what’s the magic number?Report

    • Avatar zic in reply to Michael Cain
      Ignored
      says:

      I think there’s also a very long history of states using that area to brand their state. My license plate says “Vacationland.” The next state over, “Live free or die,” and the state after, “The Green Mountain State.” A common road-trip game is identifying license plates from different states and collecting those slogans.

      Every state has, so far as I know, a Dept. of Tourism, a place for visitors to go and find out information about that state; every state promotes and brands itself, trying to distinguish it from other states. There are state flowers, state birds, state trees, state rocks, state foods.

      So the notion of official state speech has a deep, rich history. My MIL collected silver tea spoons from each state. I’ve known people who collected old license plates, with a goal of having one from each state. Quarters and stamps get issued with state-specific logos.

      There’s a deep history of state speech in effort to promote and brand that state as different from others. First in Flight. The Empire state. The Evergreen State. Wild, Wonderful. The exception seems to be Virginia, which has the most boring license plate in the nation.Report

  12. Avatar Richard Hershberger
    Ignored
    says:

    “Seems to me that the license plates represent a hybrid of public and private speech. The only public speech that a license plate makes to me is “This is a vehicle registered in the state of Texas.””

    What about that “Live Free or Die” or DC’s “Taxation Without Representation.” License plates have been used by the state to convey more than the mere fact of the vehicle’s being registered.Report

    • Avatar DensityDuck in reply to Richard Hershberger
      Ignored
      says:

      Burt discusses this in the post (Wooley v. Maynard) and the conclusion was that vehicle owners are permitted to tape over those slogans if they dislike them.Report

      • Avatar Richard Hershberger in reply to DensityDuck
        Ignored
        says:

        Sure, but my point is that this is messaging from the state, not the individual. I suppose we could interpret the individual not taping it over as an implicit endorsement of the message, but it is still coming from the state.Report

  13. Avatar Road Scholar
    Ignored
    says:

    Very interesting and informative as always, Burt. You write, So does that mean the state has to allow Ku Klux Klan or Nazi plates? Yeah, probably.

    I was thinking and wondering more along the lines of “NAMBLA”, “Support Your Local Head Shop”, or “Marriage Equality NOW!” (well, also KKK, before you mentioned it yourself.)

    I think @gingergene has the right of it above with this,

    However, while I would not assume that the State of Texas endorses each viewpoint, I would assume that the State of Texas does not object to the message being conveyed.

    So rather than being a binary question of private vs state speech, the speech in question is a hybrid, akin perhaps to a newspaper printing letters to the editor or even this very comment section, where one party is providing a forum for the speech of another. And in such a situation, the provider of the forum can speak on its own behalf, allow speech that it doesn’t actively endorse but doesn’t actively object to, and restrict speech it actively finds objectionable without contradiction. The question then is does the fact that the provider of the forum in this case being a governmental entity change this calculus in any way?

    I think the distinction between the two cases you cite as precedent may boil down to considerations of who can be construed as providing the forum. In Wooley v Maynard the owner of the vehicle onto which the state was requiring a license plate to be affixed was arguably being forced to provide the forum for the speech of the state. In the other case it would be the state providing the forum in the form of space in the park. To my mind the SCV case is more akin to the latter seeing as the forum is the optional background area of the plate itself. The state isn’t compelling speech since the messages are totally voluntary and optional.

    So bottom line is that I believe I agree with the decision. I also agree that allowing these sort of message plates, beyond perhaps those endorsing State universities and such (Go Wildcats!), is inherently problematic vis-a-vis First Amendment considerations.Report

  14. Avatar Kazzy
    Ignored
    says:

    1.) Fantastic post.
    2.) I agree with you on what the decision I would have liked to see.
    3.) Alito’s piece is fantastic.
    4.) Can you give a write up on the case about the park? It is boggling my mind that the government can say, “We will build the 10 Commandments but not your pyramid because we are building the former of government speech and therefore can decide what we say.” WTF?Report

  15. Avatar Damon
    Ignored
    says:

    If a state allows “bonehard”, which I have personally seen, and “gotmilf”, I’m really not seeing the difference. And that’s from a state a lot more liberal and anti SCV.

    Pff. You have to have a lisc. plate. But you should be able to put whatever the hell you want to on it.Report

  16. Avatar Barry
    Ignored
    says:

    Burt: “One must concede that Justice Alito has a point, albeit one made with an informal, decidedly non-scholastic voice. (Nor would it have been difficult to make exactly the same point using more succinct, formal language: “A reasonable, ordinary person observing the diversity of messages on the various specialty plates would not conclude that the state of Texas was delivering a message but rather would attribute those messages to the drivers or owners of the vehicles bearing the diverse license plates.”)”

    I thought that he had not point, because his analogy stinks. There’s a big difference between golfing and the Confederacy; the latter has deep political meaning.

    How many US states would allow an Al Qaida or ISIS license plate?Report

    • Avatar Burt Likko in reply to Barry
      Ignored
      says:

      Obviously a pro-ISIS plate would be hugely politically unpopular and we could expect that the political systems of the state would move to block it. Which is pretty much the same scenario as this case.

      If the First Amendment stands for anything, it is that people can express their political points of view.

      Given that the Confederacy (or ISIS) have deep political meaning, doesn’t that enhance the First Amendment rights of the person seeking to express a point of view by displaying the plate?Report

  17. Avatar Mike Schilling
    Ignored
    says:

    “My free speech rights are being violated because instead of saying XXX on my license plate I have to buy a bumper sticker and put it next to my license plate” is not compelling to me. The New Hampshire case doesn’t seem analogous: there the plaintiff was arguing that he was compelled into speech he disagreed with, not that he was denied the ability to speak in the specific half-square-foot of his choice.Report

    • Avatar DensityDuck in reply to Mike Schilling
      Ignored
      says:

      “My free speech rights are being violated because instead of saying XXX on my license plate I have to buy a bumper sticker and put it next to my license plate”

      So if I want my license plate to say “GOD IS NOT REAL”, the DMV denies it but it’s not a government regulation of speech because I could totally go buy a bumper sticker and put it next to my license plate. Even though “GOD IS REAL” gets approved without even a blink.Report

      • Avatar Mike Schilling in reply to DensityDuck
        Ignored
        says:

        So if I want my license plate to say “GOD IS NOT REAL”, the DMV denies it but it’s not a government regulation of speech because I could totally go buy a bumper sticker and put it next to my license plate.

        Yes. You could also get a “Kill all the (ethnic group of your choice)” bumpersticker, which no one in his right mind would expect the state to put on a license plate.

        Even though “GOD IS REAL” gets approved without even a blink.

        Even though “Irish and Proud” would get approved without even a blink.Report

  18. Avatar Burt Likko
    Ignored
    says:

    A note: I wanted to tackle the Arizona case about the church signs today. That’s not going to happen for a while because of professional obligations. Regrets.Report

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