On Thursday, the Supreme Court’s streak of incoherent decisions remained intact, as the Court ruled that the state of Texas could ban Confederate flag symbols from license plates but that the town of Gilbert, Arizona, could not place time restrictions on billboards based on content. This is, to say the least, nonsensical. But we expect nothing less than nonsense from the Supreme Court these days.
The Court actually issued six decisions on Thursday. Three of them were of somewhat minor importance. In McFadden v. United States, the Court held that the federal government could not prosecute someone for distributing a substance that mimicked the effects of forbidden drugs if that substance was not in fact a forbidden drug. In Ohio v. Clark, the Court found that a three-year-old’s abuse testimony was not banned by the Constitution under the Confrontation Clause. In Davis v. Ayala, the Court decided that the bar for overturning a state decision of harmless error in a criminal trial was higher than that suggested by the petitioner. In Brumfield v. Cain, the Court held that a person with a low IQ merited consideration as to exemption from the death penalty under the Eighth Amendment.
Then there were the two free speech decisions. Walker v. Sons of Confederate Veterans dealt with a case in which the state of Texas decided to ban a group called the Sons of Confederate Veterans from utilizing the Confederate battle flag on personalized license plates. These were not so-called “general-issue” license plates—they were “specialty license” plates, designed by those who want to pay for them. The Texas Department of Motor Vehicles must approve the design. When the Texas DMV rejected the Confederate battle flag, the Sons of Confederate Veterans sued.
A majority of the Court, with Justice Clarence Thomas as the swing vote, found that the state of Texas could indeed prohibit the use of the Confederate battle flag on license plates, even though private parties designed and paid for the license plates. Texas justified its decision on the grounds that the license plate design offended members of the public.
Justice Stephen Breyer wrote the opinion. Despite the fact that the state of Texas approved specialty license plates advertising real estate firms, promoting the “Keller Indians,” and honoring the Texas citrus industry, Breyer found that banning the Confederate flag did not amount to violation of First Amendment protections of private speech:
In our view, specialty license plates issued pursuant to Texas’s statutory scheme convey government speech… 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.
According to the majority, Texas license plate designs, even those designed by and paid for by private parties, are seen as expressions of the state, since “Each Texas license plate is a government vehicle serving the government purposes of vehicle registration and identification.” The Court expressly rejected the argument that the state license plates simply create a “forum for private speech by making license plates available to display the private parties’ designs,” even though the Court has previously decided that in fora created by the state to host private speech, First Amendment rules govern.
The blistering dissent, written by Justice Samuel Alito, tears apart this ridiculous argument:
The Court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing… 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?
Alito pointed out the extension of such logic, as well: “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?“
Alito went on to analyze Texas’s decision to deny the Confederate flag license plate, pointing out that the same day the Confederate flag was rejected, the Board approved a Buffalo Soldiers license plate, despite some Native American discomfort with the Buffalo Soldiers. As Alito states:
The Confederate battle flag is a controversial symbol. To the Texas Sons of Confederate Veterans, it is said to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil War. To others, it symbolizes slavery, segregation, and hatred. Whatever it means to motorists who display that symbol and to those who see it, the flag expresses a viewpoint. The Board rejected the plate design because it concluded that many Texans would find the flag symbol offensive. That was pure viewpoint discrimination.
Conflating private rights with governmental enforcement of those rights has long been a favorite tactic of the left; that is how the Court illogically found that judicial interpretation of voluntarily-agreed racist rental covenants amounted to state action, an argument that would invalidate any judicial decision ever that endorses non-governmental viewpoints. Once everything private is considered public, private rights ultimately disappear.
To make the Walker decision even more confusing, the Court’s decision in Reed v. Gilbert, Arizona seemed to cut in the opposite direction. In that case, the town of Gilbert has a code distinguishing between “Ideological Signs,” “Political Signs,” and “Temporary Directional Signs” for purposes of placement and size. The Court here found that such restrictions violated the First Amendment prohibition on content-based governmental regulations. This opinion, for some odd reason, received the full nine votes, with the opinion written by Justice Thomas. Thomas wrote:
The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government. More to the point, the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech.
But under the logic of Walker, what if the signs were erected blank by the government and were available for rent? Then, presumably, the government could discriminate based on viewpoint, since the state would be the “sponsor,” just as with license plates. Pamela Geller’s views about Islam could legally be rejected by the New York City Metropolitan Transportation Authority, while ads reading “CELEBRATE ISLAM” could be greenlit, by way of example.
The Court continues to demonstrate that its rulings are geared toward politics far more than legality. That bodes ill for the next few weeks, when the Supreme Court turns to the issues of Obamacare and same-sex marriage.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). Follow Ben Shapiro on Twitter @benshapiro.
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