Here’s the question: Who is the speaker on a personalized license plate? Is it the owner of the car, or is it the state?
I don’t think this question is dissimilar from some religious expression/liberty/establishment cases in the past, where people wanted to express their religion, but it was in a state-sanctioned forum, and this caused a to-do. In many of those cases, the Court decided that since it was a state-sanctioned forum, then it was as if the state was speaking, and so it was no place for religious speech.
What does this have to do with plates?
Basically, there are some fine folks who want to put the Confederate flag on their Texas license plates, and the state has said, “Nope. That’s pretty offensive.”
It turns out, not even the state of Texas buys the “pride, not prejudice” line. And if Texas finds something racially insensitive, then the other states who allow it need to seriously check themselves because Texas is not exactly known for its progressive stance on anything race-related. Seriously, when I told a class I was from Texas a student once asked me if I was going to be teaching in a Klan robe.
The confederate flag represents two things: treason, and treason for the cause of slavery. Have at it, Johnny Reb.
BUT – is it protected speech?
I’ll be the first to pronounce it BAD speech. But is it protected speech?
I’d love to say, no, and just move along my merry way, but we know how I feel about handing over the power of speech to hegemonic powers. I don’t like it. I feel it has the potential to further disempower the already marginalized. But the Texas case presents us with an interesting conundrum – who is the speaker? The reason I compared it to the religion cases, is because the government can’t be compelled to make any particular ideological stance. The government can be compelled to share certain information with an FOI request, but the government can choose to not support any particular ideology. Hence the comparison to the religion cases – the government cannot support one religion over another, or religion over non-religion. In this case, could the government claim to be the voice, since they require the plates, and claim they do not support the sign of the Confederate flag? If that’s the case, it is cut and dry. The state of Texas claims, in a public forum, like streets and highways, that they cannot be compelled to support a particular ideology, such as the Confederate flag implies. QED.
If, however, the speaker is a private citizen, it’s more complicated. Because individual speakers can be as racist as they want (and yeah, it’s racist) and not have to answer to anybody. It’s the price we pay for liberty, as much as critical legal studies folks and critical race theorists would have that reversed.
So, who speaks license plates to us? My guess is you don’t even consider who the speaker is when it isn’t personalized, and if you ever thought about it, you would automatically say, “the state.” But if it is personalized, does the speaker change? Have you paid that extra money to become the voice of your license plate? Does that give you the right to be a racist?
Thoughts are always welcome, friends.