SO SPOKE… WHO?

The murderous rampage by a racist young man who wrapped himself in the confederate flag jolted the previously somnolent debate about the meaning of that flag.  In the process, it heightened the visibility of the Supreme Court opinion about placing stars and bars on license plates, a decision which came down before the South Carolina murders.

The case hailed from Texas, which has a regime where private parties can submit license plate designs, but the state can accept or reject them.  When a design with the confederate flag crossed the state’s desk, it shut it down, and the sponsors sued on free-speech ground.

Government speech is of course not subject to the first amendment.  A state may say or refuse to say whatever it will; it just can’t force its citizens to say it (or stop saying it) too.  Each one of us is free to speak our mind, but so is the government.  So the question before the Court quickly became, is a license plate design submitted by a private party government speech, since the state issues the plates, or private speech harking back to the sponsor?

The Supreme Court had answered the question in a roundabout way a few years earlier.  It held that private displays in a municipal park had the imprimatur of the government, leaving the authorities free to decide what they did or did not want shown there.  To put it another way, you can say what you will, but the government does not have to let you shout it from its property.

And so it goes with license plates.  People who, for motives vile or historical, want to fly the stars and bars, may do so on their own property, but cannot make a state put it on its license plates.  Once the message is on a license plate, the Court held, it is in essence endorsed by that state, which has the right to choose how to represent itself. That private parties are invited to participate in the process does not change the speech from governmental to individual.

Florida too has a bevy of license plate designs.  Then there are all those personalized plates.  But whether it’s on your car or your flag pole, the line between First Amendment rights and democratic, collective government, can sometimes take an attorney’s help to discern.