The state of Texas is not required to issue a license plate that incorporates the Confederate battle flag, according to a 5-4 decision handed down on Thursday. The case presented one of the most genuinely difficult cases to reach the Supreme Court this term. It was also resolved by an unusual mix of justices. Justice Clarence Thomas, probably the most conservative member of the Court, joined the Court’s four liberal members to form the majority.
Walker v. Texas Division, Sons of Confederate Veterans presents a conflict between two competing First Amendment doctrines. On the one hand, the First Amendment typically prohibits states from engaging in viewpoint discrimination — that is, enacting laws or policies that preference one opinion over another. The Sons of Confederate Veterans (SCV), who requested the specialty plate at issue in this case, argued that Texas engaged in exactly this form of discrimination when it refused to issue the SCV’s proposed plate design because “public comments ha[d] shown that many members of the general public find the design offensive.” Texas did allow many other plate designs, ranging from “Rather Be Golfing” to “Choose Life” to “Insure Texas Kids,” which did not express the implicit viewpoint presented by a Confederate flag license plate.
Yet, as Justice Stephen Breyer explained in his opinion for the Court, there is one context where the government is allowed to engage in viewpoint discrimination. “When government speaks,” Breyer wrote, “it is not barred by the Free Speech Clause from determining the content of what it says.” This exception exists for entirely sensible reasons, which Breyer lays out in his opinion. “Were the Free Speech Clause interpreted otherwise,” the Walker opinion explains, “government would not work. 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? 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?”
So the question presented by Walker is whether a proposed specialty plate, designed by a non-government entity but issued by the state of Texas, qualifies as government speech or private speech.
Breyer, and the four other justices in the majority, conclude that it is government speech. In doing so, he lists several factors that point in this direction, including the fact that “the history of license plates shows that, insofar as license plates have conveyed more than state names and vehicle identification numbers, they long have communicated messages from the States.” The fact that “Texas license plates are, essentially, government IDs.” And the fact that “Texas maintains direct control over the messages conveyed on its specialty plates.”
In dissent, Justice Samuel Alito offers a mocking (and not entirely unpersuasive) rebuttal to Breyer’s analysis:
Here is a test. Suppose you sat by the side of a Texas highway and studied the license plates on the vehicles passing by. You would see, in addition to the standard Texas plates, an impressive array of specialty plates. (There are now more than 350 varieties.) You would likely observe plates that honor numerous colleges and universities. You might see plates bearing the name of a high school, a fraternity or sorority, the Masons, the Knights of Columbus, the Daughters of the American Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver.
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? 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 majority opinion, Alito concludes, “takes a large and painful bite out of the First Amendment.”
Though Thomas’s decision to break with his fellow conservatives is unexpected, it is not especially surprising. Twelve years ago, in Virginia v. Black, the Court considered a Virginia law banning cross burning done with “an intent to intimidate a person or group of persons.” In his dissenting opinion, Thomas concluded that the statute was constitutional. “[J]ust as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment,” Thomas wrote, “those who hate cannot terrorize and intimidate to make their point.”
Indeed, Justice Thomas’s opinion in Black revealed a simmering anger at the racists who for so long dominated the Jim Crow South that he grew up in. The Ku Klux Klan, Thomas explained, is “a terrorist organization, which, in its endeavor to intimidate, or even eliminate those it dislikes, uses the most brutal of methods.” One of these methods, he added, was cross burning, “a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan.”
Taken together, Walker and Black suggest that Thomas, who often expresses more absolutist views regarding the First Amendment — and who typically is a reliable ally of the Court’s other conservatives — views racist symbols as a class into themselves. He’s perfectly willing to allow millionaires and billionaires to engage in conduct that corrupts our elections. But when a racist symbol such as a burning cross is invoked, Thomas concludes that because “the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests.”