Friday, June 19, 2015

Supreme Blockbusters Coming (Part 4--Confederate Flag [now decided])

The Court released its decision in the Confederate flag case Thursday morning while I was working on this post.
Of course, I would have correctly predicted the ruling.
Not really.

Seems that I was giving the Justices more credit for neutral decisionmaking than they deserve--and I don't think they deserve much to begin with.
Bottom line: the 4 liberal Justices voted against the Confederate flag; 4 of the 5 conservatives voted for it; Justice Thomas (the Court's sole African-American) voted with the liberals on this one.

Let's get to the case itself and the specific legal ruling:
Texas allows specialty (so-called "vanity") license plates as selected and even designed by motorists.
The Sons of Confederate Veterans (Confederate Sons), an organization honoring soldiers who fought for the South, wanted a specialty license plate with a design depicting the Confederate flag and identifying the organization.
Texas, through a board of its motor vehicles department, rejected the request.
The basis for the rejection was the board's standard that "it might be offensive to any member of the public."
The Confederate Sons claimed that the rejection was a violation of free speech.
The federal appeals court (i.e., the 5th Circuit) agreed with the Confederate Sons.
But the U.S. Supreme Court reversed and, instead, sided with Texas.
It did so by a 5-4 vote. (Walker v. Sons of Confederate Veterans, decided 6/18/2015.)
As already noted, all 4 liberal Democratic Justices (Ginsbug, Breyer, Sotomayor, and Kagan) supported the state's rejection of the Confederate flag design.Their 5th vote, making them the majority, came from the Court's only African-American, Justice Thomas. In the past, he has understandably made clear his strong hostility to symbols associated with racism.
The other 4 conservative Republican Justices all supported the Confederate Sons' claimed free speech right.

Liberals all against the Confederate Sons; conservatives (except Thomas) for them.
Just another one of those coincidences.
Another one of many similar ones with this Court.

My own expectation was that the decision would be the opposite. And that the vote would be 6-3 or 7-2 in favor of free expression rights for the Confederate Sons. Or stated differently, against the state's right to engage in viewpoint discrimination.

I underestimated the ideological tug this case would exert on the Justices.
Not the tug for or against free expression rights.
But sympathy versus hostility for the Confederate flag and, maybe, for the Confederate Sons who wanted to display it.
Or perhaps it is entirely coincidental that the 4 liberal Justices weighed all the legal considerations--pro and con free speech--and just happened to reach a decision against the display of a Confederate flag design.
And entirely coincidental that 4 conservative Justices--only Thomas missing--would weigh the very same free speech considerations and just happen to reach a pro-Confederate flag decision.

Let's be real. What are the odds that these results are purely coincidental? That views and feelings about the Confederate flag, or about those who wanted to display it, played no part in the votes?

Now what about the actual legal/constitutional issue in this case, and the competing legal/constitutional arguments?

The question the case formally presented to the Court was whether the personally selected expressions on the specialty or "vanity" license plates are "government speech" (i.e., Texas speaking), or that of the motorists who selected or designed the special expressions for their plates.

If the specialty expressions are those of the state, then the state can pick and choose what it would like to say. A state could freely choose not to display a Confederate flag on its license plates--just as the Texas motor vehicles department chose not to do.
But if the specialty expressions are those of the motorists who selected or designed them, then their free speech rights are triggered. The motorists would be free to express their viewpoints--unless they involved obscenity, violence-incitement, or other unprotected speech.

So, are the personally selected expressions on the Texas specialty or "vanity" plates Texas speaking or the motorist speaking? That was the legal issue on which the Justices split.

The precedents, as one might expect, can support either position:
Pleasant Grove City v. Summun (2009)--the city, which accepted privately donated monuments for its park, had the right to reject a monument to the "Seven Aphorisms of the Summun Church." Held to be "government speech," 9-0 decision.
Rust v. Sullivan (1991)--the federal government, which provides medicaid for indigent health services, has the right to prohibit health care professionals providing such subsidized care from advising about abortion services. Held to be "government speech," 5-4.
Rosenberger v. University of Virginia (1995)--the state university, which funds student activities, could not refuse to fund an Evangelical Christian student group's religious magazine. Held to involve the student group's protected free speech, 5-4.
Wooley v. Maynard (1977)--the state, New Hampshire, could not stop Jehovah Witnesses from covering the state motto, "Live Free or Die," on the license plates on their cars. Held to involve the objectors' protected free speech, 6-3.

As noted in the dissenting opinion authored by Justice Alito, Texas had already allowed over 350 different logos and designs on specialty or "vanity" plates. They ranged from the names and logos of schools, colleges, universities, and countless organizations and sports teams (including out-of-state competitors of Texas teams), to favorite recreational activities, soft drinks, and foods.

Alito posed the question: Would anyone "really think that the sentiments reflected on these specialty or "vanity" plates are the views of the State of Texas and not those of the owners of the cars?"
I'm with Alito on this question at least, and I would have voted with him and Roberts, Scalia, and Kennedy on that particular point.
It seems a wholly unrealistic stretch to label the logos and designs, which are personally selected, by private motorists', and appear on the license plates on their own cars, to be the state speaking--"government speech."

Consider this.
There is currently another case in which North Carolina has allowed "Choose Life" on the specialty or "vanity" plates. But the state will not allow "Respect Choice." In short, it has allowed its motorists to display an anti-abortion viewpoint, but not a pro-choice one.
The federal appeals court (i.e., the 4th Circuit) unanimously disagreed with the state. It disagreed that this was a case involving "government speech." Instead, the court ruled that the state had violated the motorists' free speech rights by engaging in "blatant viewpoint discrimination." (ACLU v. Tata [2014].)

So how would the liberal Justices of the Supreme Court view the state's refusal to permit motorists to express pro-choice sentiments? Especially while the state allowed other motorists to express pro-life ones? Would the liberal Justices simply view the state's political viewpoint discrimination as valid "government speech," or would they recognize it as unconstitutionally favoring some free speech over others?

But, as they say, that's not the end of the story.

Finally, few people deplore the displaying of the Confederate flag more than I do. To me, as to others, it is a symbol of the fight to maintain slavery and of the later opposition to civil rights.
[Yeah, okay, it reflects "states rights"--to retain slavery and to continue racial segregation and discrimination.] And to me, and others, it persists as an expression of subtle and not-so-subtle racism and white supremacy, nostalgia for the pre-Civil War way of life in the South, and hatred for the "Northern aggression"that ended it--uhhhh, the "Northern aggression" that ended slavery and later imposed racial integration.

Bob Jones University v. U.S. (1983) is a case I believe is relevant and helpful here. In that case, the Supreme Court rejected the church-related university's claim for tax deductions. The Court did so because the university promoted and practiced beliefs of racial discrimination. Although such deductions were generally available to educational institutions, the Court ruled that the nation's fundamental policy against racial discrimination outweighed whatever religious liberty interests of the university were at stake.
[BTW, the Court's opinion was authored by conservative Nixon appointee, Chief Justice Warren Burger; the sole dissenter was William Rehnquist, who Reagan later appointed to succeed Burger as Chief.]

As in the Bob Jones case, it would seem that the Court in the Confederate flag case could have once again recognized a fundamental policy interest in eradicating vestiges of racial discrimination, segregation, and slavery--of hateful symbols that undermine the quest for greater racial harmony.
Instead of engaging in the fiction--absurd to me, as it was to Alito &co. in the dissent--that the personally selected and designed expressions on specialty or "vanity" license plates are the state speaking (the so-called "government speech"), why not simply recognize them for what they are? They are private expressions.

But they are private expressions on a government-sponsored forum--i.e., on the government-offered and sponsored specialty or "vanity" plates.

Free speech is not absolute, and the government need not sponsor speech--i.e., it need not produce and offer license plates--that celebrate or promote what is antithetical to fundamental policy values.
Government certainly need not offer or sponsor a forum for expression that promotes or celebrates hatred, violence, or other anti-social attitudes or conduct.
Individuals certainly have the right of free speech to express homophobia, xenophobia, misogyny, racism, and the like. But they have no right to have the government sponsor such expression on a government created and offered forum.

The dissent in Walker seems to have been right in concluding that the personally selected expressions on specialty or "vanity" plates is private expression, and not "government speech."
Nevertheless, it still seems that the the state's rejection of the Confederate flag design was valid.
But not because the personally selected expressions on these license plates are "government speech."
Rather, because the government need not sponsor expressions that promote or celebrate beliefs that are inimical to our fundamental national policies against racial discrimination, racial segregation, and slavery.
And again, let's be frank, the Confederate flag is tied to all of those.
Government surely need not assist in the display of a symbol that reflects all of those hateful institutions.

Instead of adopting the "this is 'government speech'"fiction--and not a very convincing one--the majority in the Confederate flag case should have acknowledged that the free speech rights of private expression were at issue. But that they were outweighed by the state's, and society's, fundamental policy interests.

Consider the implications for the North Carolina case previously mentioned--i.e., the state allowing "Choose Life" but disallowing "Respect Choice" on license plates.
Applying the "government speech" analysis of the Confederate flag case would result in upholding North Carolina's viewpoint discrimination against pro-choice expression.
On the other hand, recognizing that specialty or "vanity" plates entail private expression would result in prohibiting the state from abridging the free speech rights of pro-choice advocates.
To succeed, the state would need to demonstrate that there is some overriding fundamental policy against a woman's right to choose.
Of course the state could not do that, because the right to choose is a protected constitutional freedom.

One last thing.
The legal reasons a court adopts for reaching its decisions matter.
Often those reasons matter much more than the result in the particular case.
Those legal reasons are applied in all the cases that follow.
The Supreme Court majority's reasons in the Confederate flag case--i.e., "government speech"--will now be applied in many cases coming before federal and state courts and agencies around the country.
That is most unfortunate. Many of those results, like the reasons given in the Confederate flag case, will be wrong.
And lots of free speech--under the guise that it is "government speech"--will suffer.