WASHINGTON (CN) - Justice Clarence Thomas swung the vote for the liberal faction of the Supreme Court on Thursday in upholding the refusal by Texas to issue Confederate license plates.
A division of the Sons of Confederate Veterans brought the challenge at hand after its application for a specialty license plate was rejected as potentially offensive.
Made up of male descendants of Confederate veterans, the SCV describes its mission as honoring and keeping "alive the memory of the Confederacy and the principles for which Confederates fought, thus giving the world an understanding and appreciation of the Southern people and their brave history."
The proposed license-plate design included the organization's name and its seal bearing the Confederate battle flag. SCV argued that nine other states, all of them Southern, issued similar license plates.
Noting that the Texas board had accepted a request for plates honoring the Buffalo Soldiers, even though they were "offensive to Native Americans because the all-black cavalry helped fight Native Americans in the Indian Wars from 1867-1888," SCV also argued that the rejection of its proposal amounted to viewpoint bias.
A federal judge in Austin sided with the state, granting it summary judgment and ruling the board had made a reasonable, content-based regulation of private speech - as opposed to public speech by the government.
Texas found relief from the Supreme Court on Thursday on appeal of the Fifth Circuit's reversal.
"When government speaks, it is not barred by the free speech clause from determining the content of what it says," Justice Stephen Breyer wrote for the majority.
Interpreting that clause otherwise would hamstring the government, Breyer added.
"How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary?" the opinion states. "How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?"
Finding that the specialty license plates issued pursuant to Texas law convey government speech, Breyer likened the vehicle fixture to government IDs.
"And issuers of ID 'typically do not permit' the placement on their IDs of message[s] with which they do not wish to be associated,'" the majority opinion states. "Consequently, 'persons who observe' designs on IDs 'routinely - and reasonably - interpret them as conveying some message on the [issuer's] behalf.'
"Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the state has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate. But the individual prefers a license plate design to the purely private speech expressed through bumper stickers. That may well be because Texas's license plate designs convey government agreement with the message displayed."
Though the designs also implicate the free speech rights of private persons, Kennedy stressed that "compelled private speech is not at issue."
"And just as Texas cannot require SCV to convey 'the state's ideological message.' SCV cannot force Texas to include a Confederate battle flag on its specialty license plates," the decision concludes.
Chief Justice John Roberts joined a dissent by Justice Samuel Alito, as did Justices Antonin Scalia and Anthony Kennedy.
"As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the state of Texas and not those of the owners of the cars?" Alito asked. "If a car with a plate that says 'Rather Be Golfing' passed by at 8:30 am on a Monday morning, would you think: 'This is the official policy of the state - better to golf than to work?' If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas's out-of-state competitors in upcoming games - Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State - would you assume that the state of Texas was officially (and perhaps treasonously) rooting for the Longhorns' opponents? And when a car zipped by with a plate that reads 'NASCAR - 24 Jeff Gordon,' would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the state government? The court says that all of these messages are government speech. It is essential that government be able to express its own viewpoint, the Court reminds us, because otherwise, how would it promote its programs, like recycling and vaccinations? So when Texas issues a 'Rather Be Golfing' plate, but not a 'Rather Be Playing Tennis' or 'Rather Be Bowling' plate, it is furthering a state policy to promote golf but not tennis or bowling. And when Texas allows motorists to obtain a Notre Dame license plate but not a University of Southern California plate, it is taking sides in that long-time rivalry.
"This capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous. They make motorists happy, and they put money in a state's coffers. But the precedent this case sets is dangerous."
Alito analogized what Texas did here as rejecting "one of the messages that members of a private group wanted to post on some of these little billboards because the state thought that many of its citizens would find the message offensive."
"That is blatant viewpoint discrimination," the dissent states.
An appendix to the opinion offers six pages of specialty-license plate images from the Texas Department of Motor Vehicles.
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