Next month the Supreme Court of the United States will hear a case coming out of Texas that deals with specialty license plates. The case arose when a group of descendants of those who served in the Confederate Army attempted to submit a design for a specialty license plate to the Texas Department of Motor Vehicles that featured a Confederate Flag surrounded by the words “Sons of Confederate Veterans 1896.”
Like the war that the license plate seeks to pay homage to, this case is far more complicated than it would appear at first glance. This case poses an interesting question regarding Free Speech; namely what should happen when one person’s right to speak might offend other people.
The Sons of Confederate Veterans (“SCV”) argue that members should be allowed to display the Confederate Flag on their license plates because Texas played an important role in the War Between the States, including its role as the site of the final battle of the conflict. The group believes that the Texan soldiers that served in the War fought valiantly for their homeland and they deserve to be commemorated. Furthermore, the Texas Department of Motor Vehicles has approved license plates that depict the other American wars. It would be inconsistent to deny authorization for a plate memorializing one of the nation’s most significant conflicts.
The specialty plate approval process can be perceived as the government speaking by approving a design and issuing the plates.
This is not the first license plate case that the Supreme Court has considered. In Wooley v. Maynard, a group of Jehovah’s Witnesses objected to the state of New Hampshire requiring that they display the state’s motto of “Live Free or Die.” The Court in that case viewed the display of the state motto on the license plate as speech, and held that citizens should be free to speak or not speak as they see fit. The Court said further that the government could not force drivers to be its messengers against their will.
Opponents of the SCV’s proposed plates argue that this situation is the inverse of Wooley in which citizens are requiring the government to speak, arguing that the government should likewise not be required to speak in a certain way if it does not choose to do so. The specialty plate approval process can be perceived as the government speaking by approving a design and issuing the plates. When the government speaks, it is allowed to speak in a way that it chooses, deciding for itself what message it will convey.
This argument that the approval of specialty license plates is government speech faces difficulty in light of some of the other specialty plates that have already been approved. Among the list of plates that have been approved is one that depicts the Three Crosses at Calvary and states “One State Under God.” There is no equivalent plate for Judaism or Islam. If the Texan government were acting as speaker in giving approval to this plate; then arguably the Texas government was promoting the establishment of a state religion. If that were the case, it would raise significant constitutional issues.
Additionally, the Texas government issues various license plates that display university logos. The list of specialty plates that the Texas DMV issues include plates for numerous universities, many of which are located outside of the state. If the Texas government were acting as speaker in issuing the license plates, it would in effect be endorsing universities with specialty plates available for purchase, such as the University of Kentucky and the University of South Carolina, and against the institutions excluded from sale, such as University of North Carolina. The Texas government offers specialty license plates by virtue of popular demand from its citizens, and it discontinues the circulation of certain plates if the demand wanes. No observer on the roads of Texas who saw a specialty plate of this type would think that the Texas government was giving its approval to these institutions; rather, the observer would think only that the plate represented the sentiments of the driver of the car.
An individual may be offended by the Sons of Confederate Veterans’ license plate, however, he or she is not obliged to view that plate even though the two drivers are sharing the same road.
Others have argued that the use of the Confederate Flag on the license plate constitutes fighting words. In order for words or symbols to be considered fighting words, the words must incite individuals to violence. Courts have afforded little constitutional protection for fighting words and, because of this, courts have held that government may impose restrictions upon speech of that kind.
The Texas government has not yet conducted a study to determine the level of offense the Confederate Flag has on citizens. The number of violent incidents in recent years attributable to the Confederate Flag is likely to be miniscule. Even if the Confederate Flag was found to bring about furor in individuals, the flag that is displayed on the Sons of Confederate Veterans’ proposed plates is so small that a driver would have to exert a significant amount of effort in order to see it.
In many cases, individuals who allege fighting words are not required to “hear” the speech. This principle goes back to a 1968 case, Cohen v. California, in which a suspect at a courthouse was seen wearing a shirt displaying a message denouncing the draft through the use of a four-letter word. The court held that individuals who observed the shirt in the courthouse hallway were not required to read the shirt, even though the individuals may have been legally required to be in the building.
The principle found in Cohen would likely apply to the display of the Confederate Flag on a specialty license plate. An individual may be offended by the Sons of Confederate Veterans’ license plate, however, he or she is not obliged to view that plate even though the two drivers are sharing the same road.
The government itself is not speaking by giving its approval to a specialty plate, but is instead merely giving citizens a chance to speak by creating a public forum.
The argument has also been made that the Texas DMV’s decision to make specialty plates available to the public is best understood as the government opening a forum for public speech that would otherwise be closed. The government itself is not speaking by giving its approval to a specialty plate, but is instead merely giving citizens a chance to speak by creating a public forum. If that is the case, then the government should not be allowed to act as a gatekeeper for the speech in the way that it has in this case.
An impermissible content-based restriction involves denying speech entirely based upon the viewpoint that the speech is espousing. In this case, the state of Texas is denying the Sons of Confederate Veterans’ request entirely because of their viewpoint that honors those who served in the Confederate Army. Supporters of the Confederate plates would argue that the government is attempting to carry out an unlawful restriction that is based upon the content of their speech.
In order for the government to restrict speech after a public forum has been opened, the state must have a compelling interest that it hopes to accomplish. It is difficult to determine what significant interest the Texas government would be attempting to accomplish by curtailing this speech. For one thing, the Texas government does not know the true feelings of the citizens of Texas. The Texas government has not conducted a survey to see how the majority of Texans view the Confederate Flag—it are merely acting out of speculation.
It is not the role of government to act as censor in order to keep people from being offended; the government’s job under the Constitution is merely to facilitate the free exchange of ideas.
The mere possibility that individuals might be offended by the plates is not a compelling enough interest to curtail the speech. The state of Texas has previously given its approval to over 350 specialty plates, each one of which has the capacity to offend some person at some point in time. It is not the role of government to act as censor in order to keep people from being offended; the government’s job under the Constitution is merely to facilitate the free exchange of ideas.
Basing the right to speak by tallying the number of people who might be offended against the number of those who approve of the speech is a difficult task and an improper approach to the issue. The history of the Free Speech Clause runs counter to the concept that only ideas that have universal approval should be allowed. Throughout American history, it has been unpopular ideas, rather than mainstream ideas, that have relied most heavily upon the Free Speech Clause. The public debate would be greatly impoverished if only those ideas that all people agreed about could be discussed.