I'm not sure why he cast the fifth vote. But I have a theory.
Texas, like many states, allows groups to apply for
specialty license plates, reflecting a college affiliation, veteran status, or even one's favorite NASCAR driver. The Texas Division of the Sons of Confederate Veterans (SCV) applied for a plate, to display its name and a square Confederate battle flag. The Texas DMV said no, citing public comments that many members of the general public found the design offensive, and “that a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.” The CSV sued.
In a 5-4 ruling today, the Supreme Court of the United States upheld Texas' decision to bar the offensive license plates. "Texas license plates are, essentially, government IDs," wrote Justice Breyer for the majority. "And issuers of ID typically do not permit the placement on their IDs of messages with which they do not wish to be associated."
Justice Alito penned the dissent, with Chief Justice Roberts and Justices Kennedy and Scalia signing on. "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... what Texas did here was to reject 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."
If you're doing your math correctly, that means you realize that the fifth vote for the majority came from Justice Thomas, normally an opponent of speech regulation, but here joining the Court's four moderates/liberals to uphold a restriction. While he didn't write separately (and he's done plenty of that lately), I do have an inkling as to what's going on here. Much more, including a battle of metaphors, below the gnocchi.
Basically, this case came down to each justice's metaphor of choice. If a specialty license plate is government speech, then the government can say what it wants. (Recall the Seven Aphorisms case from 2009.) But if the license plate constitutes a government-created forum for the car owner's speech, then it's censorship to deny certain messages on the basis of troubling content.
So, to the majority ...
[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….
Texas’s policies and the nature of its license plates indicate that the State did not intend its specialty license plates to serve as either a designated public forum or a limited public forum. First, the State exercises final authority over each specialty license plate design. This authority militates against a determination that Texas has created a public forum. Second, Texas takes ownership of each specialty plate design, making it particularly untenable that the State intended specialty plates to serve as a forum for public discourse. Finally, Texas license plates have traditionally been used for government speech, are primarily used as a form of government ID, and bear the State’s name. These features of Texas license plates indicate that Texas explicitly associates itself with the speech on its plates.
Accordingly, just as Texas can't force private individuals to express a view with which the private party disagrees—with the Court citing both the
mandatory Pledge of Allegiance case and
the Boston/St. Patrick's Day/gay marchers' case as precedent—nor can the SCV force Texas to carry a message
it deems offensive.
Justice Alito sums up the dissent this way:
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?
And, they argue, this isn't like the monuments/aphorisms case:
The history of messages on license plates is quite different. After the beginning of motor vehicle registration in 1917, more than 70 years passed before the proliferation of specialty plates in Texas. It was not until the 1990’s that motorists were allowed to choose from among 10 messages, such as “Read to Succeed” and “Keep Texas Beautiful.” History at 101. Up to this point, the words on the Texas plates can be considered government speech. The messages were created by the State, and they plausibly promoted state programs. But when, at some point within the last 20 years or so, the State began to allow private entities to secure plates conveying their own messages, Texas crossed the line.
And what's the problem? First Texas approves of a license plate honoring the Buffalo Soldiers, and rejects the SCV. What's next?
What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen.
Which brings us back to Justice Thomas, and like
Ian Millhiser, there was one place my thoughts immediately turned: the cross-burning case. In
Virginia v Black (2003), Justice Thomas dissented separately to argue that the unique history of cross burning in the South justified a unique exception to First Amendment analysis, allowing it to be banned altogether (regardless of intent to intimidate):
For those not easily frightened, cross burning has been followed by more extreme measures, such as beatings and murder. J. Williams, Eyes on the Prize: America's Civil Rights Years, 1954-1965, p. 39 (1987). As the Government points out, the association between acts of intimidating cross burning and violence is well documented in recent American history. Indeed, the connection between cross burning and violence is well ingrained, and lower courts have so recognized:
"After the mother saw the burning cross, she was crying on her knees in the living room. [She] felt feelings of frustration and intimidation and feared for her husband's life. She testified what the burning cross symbolized to her as a black American: `Nothing good. Murder, hanging, rape, lynching. Just anything bad 391*391 that you can name. It is the worst thing that could happen to a person.' ... Mr. Heisser told the probation officer that at the time of the occurrence, if the family did not leave, he believed someone would return to commit murder.... Seven months after the incident, the family still lived in fear.... This is a reaction reasonably to be anticipated from this criminal conduct." United States v. Skillman, 922 F. 2d 1370, 1378 (CA9 1991) (emphasis added).
But the perception that a burning cross is a threat and a precursor of worse things to come is not limited to blacks. Because the modern Klan expanded the list of its enemies beyond blacks and "radical[s]" to include Catholics, Jews, most immigrants, and labor unions, a burning cross is now widely viewed as a signal of impending terror and lawlessness. I wholeheartedly agree with the observation made by the Commonwealth of Virginia:
"A white, conservative, middle-class Protestant, waking up at night to find a burning cross outside his home, will reasonably understand that someone is threatening him. His reaction is likely to be very different than if he were to find, say, a burning circle or square. In the latter case, he may call the fire department. In the former, he will probably call the police." Brief for Petitioner 26.
In our culture, cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence.
A cross burning was conduct, devoid of any other expressive values, and as such Justice Thomas determined, "Just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point. In light of my conclusion that the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests."
And so, I have to wonder: could Justice Thomas just not bring himself to allow the Confederate flag to fly with any indicia of government approval? Food for thought—as well as for those who still insist that Justices Thomas and Scalia are the same. The history speaks otherwise.
