If liberty means anything at all it means the right to tell people what they do not want to hear. George Orwell, The Freedom of the Press.
Another diary is condemning as "reprehensible" the State of Georgia's issuing license plates for the Sons of Confederate Veterans depicting a Confederate flag:
Now, the fact that Georgia allows these plates at all – with $10 of each sale benefiting SCV – is beyond reprehensible.
I believe that purchasing these license plates is reprehensible because purchases help fund the SCV.
I believe that displaying these license plates is reprehensible, except in a critical context, because they convey a message of support for slavery, racism, and rebellion against the United States of America.
But precisely because the SCV license plate is speech, unless we're prepared to ban all messaging license plates, we can't reprehend Georgia's willingness also to make this plate available without violating the First Amendment's free speech clause.
Georgia, as it happens, allows many different special interest license plates. Follow on for some less objectionable examples.
Speaking of vanity plates generally, Gerry Weber, a former legal director of the American Civil Liberties Union of Georgia, told the
Atlanta Journal-Constitution:
“Really these license plates are one of the primary ways Georgians use free speech,” Weber said. “Not many Georgians go to rallies, but thousands of Georgians express themselves through these license plates. “Think about how many people over the course of a year see your license plate. That’s a huge audience.”
Indeed, the United States Court of Appeals for the Second Circuit, in
Byrne v. Rutledge, 623 F.3d 46 (2d Cir. 2010), held that, under the First Amendment, Vermont could not, as it did, permit "residents to select combinations that convey messages on a variety of topics, including statements of personal philosophy and taste, inspirational messages, and statements of affiliation with or affirmation of entities, causes, and people," and at the same time forbid "any “combination[ ] of letters or numbers that refer, in any language, to a ... religion” or “deity.” 623 F.3d at 48 (ellipses by the court). The reason was "that Vermont's ban on all vanity plate combinations that “refer, in any language, to a ... religion” or “deity” constitutes unconstitutional viewpoint discrimination[.]"
Id. (ellipses by the court).
This is just the basis on which, according to the Atlanta Journal-Constitution, in 2013, "two free-speech lawyers" sued Georgia:
The suit contends that the state violated the constitutional rights of James Cyrus Gilbert when it rejected his application for the tags 4GAYLIB, GAYPWR and GAYGUY. All three vanity plates are on the list of vanity plates banned by the state, although the state has approved plates expressing some political or religious expressions.
The speech embodied in the SCV license plate is hateful. But a state government should not be permitted to pick and choose the speech it allows to be conveyed by its license plates. Any exceptions to this general rule should have to satisfy the same stringent test applied in other free speech cases. Here, I don't see even a colorable argument to ban the SCV plate, unless we're prepared to call on Georgia to ban all 'speaking' license plates.
Sometimes free speech hurts. It hurts those Muslims who are offended by depictions of Mohammed. It hurt many Jews, a number of them survivors of the Shoah (Holocaust), when American Nazis marched through Skokie, Illinois.
Some people are willing (eager?) to do away with free speech, even (especially?) in an academic context, for example, Harvard senior Sandra Korn, who recently made the case in the Harvard Crimson. And I recognize, as Garrett Epps has noted, that "the American system of free speech is not the only one; most advanced democracies maintain relatively open societies under a different set of rules."
That said, however, I continue to believe that our liberties and (as yet imperfectly realized) system of democratic government are much better protected by a rigorous defense of the First Amendment's free speech clause than by one that leaves it up to the states and national government to decide what speech is permitted.