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Monday, March 18, 2024
March 18, 2024

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Will: Free speech has its plate full in Texas

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The Battle of Palmito Ranch near Brownsville, Texas, on May 13, 1865, is called the last battle of the Civil War, but the Texas Division of the Sons of Confederate Veterans, or SCV, might consider that judgment premature, given its conflict with the state’s Department of Transportation and Department of Motor Vehicles. This skirmish is of national interest because it implicates a burgeoning new entitlement — the right to pass through life without encountering any disagreeable thought.

Under Texas’ specialty license plate system, plates can be created by the Legislature by specific enactments, or can, for a fee, be designed by individuals, nonprofits or businesses. The specialty plates exhort (“Be a Blood Donor”), emote (“I’d Rather Be Golfing”), celebrate (NASCAR, many universities) and commemorate (“Buffalo Soldiers,” “Korea Veteran”).

The Texas SCV’s design caused a commotion because the organization’s logo includes the Confederate battle flag. The Texas DOT committee that approves specialty plates approved the SCV plate before it disapproved it because an official considered the plate “controversial.” The Texas Transportation Code says the state may refuse to create a plate “if the design might be offensive to any member of the public.” Yes, any.

A district court rejected the SCV’s contention that this decision was unconstitutional but the 5th U.S. Circuit Court of Appeals held that specialty plates are private speech, so the state had violated the First Amendment by engaging in viewpoint discrimination against the SCV.

Texas is appealing to the U.S. Supreme Court, probably in vain.

By now there is a body of license plate law. In 1977, the Supreme Court upheld the right of a Jehovah’s Witness in New Hampshire to edit out, with tape or metal shears or otherwise, that state’s license plate slogan “Live Free or Die.”

Some language that is put on plates by legislative action — e.g., Idaho’s “Famous Potatoes” — is government speaking its mind and need not be neutral. In Illinois, where specialty plates require a specific legislative enactment, when a pro-life group sought a “Choose Life” plate, the state decided to exclude the subject of abortion, pro and con, so the denial was viewpoint neutral.

Texas, however, denied the SCV plate explicitly because it, with its flag, was “offensive,” which is an impermissible reason for denying speech. In 2011, however, the Supreme Court held:

“The Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather … the burden normally falls upon the viewer to avoid further bombardment of (his) sensibilities simply by averting (his) eyes.”

The new entitlement aims to spare the people this burden. At many American colleges and universities, where thinking goes to hibernate, freedom of expression is restricted for the purpose of sparing the delicate sensibilities of the most sensitive persons on the campuses. The First Amendment is construed to stipulate that there shall be no abridgement of free speech — unless the speech annoys, saddens, angers, dismays or otherwise discombobulates the emotional equilibrium or intellectual serenity of any listener.

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