The state of Texas doesn’t want motorists to have the option to purchase specialty license plates bearing the Confederate flag. This is, standing alone, an admirable sentiment, as that flag ultimately symbolizes treason in the defense of slavery.
The problem is that the First Amendment doesn’t allow the state to censor the political speech of private persons on the basis of the political content of that speech. If messages on specialty license plates -- Texas currently offers motorists several hundred different varieties of specialty plates -- are considered private political speech, then refusing to issue a confederate flag specialty plate because of the political message it sends is unconstitutional, no matter how repugnant that message might be.
This dispute has gotten to the Supreme Court, and in Monday’s oral argument the state’s lawyer put forth the best argument he had: since the First Amendment allows the government itself to make or not to make any political statement it wants about any subject, refusing to issue a specialty license plate because of the political message it conveys is perfectly constitutional, as long as the message conveyed on the license plate is considered a form of government speech.
The best argument the state has is, however, a very weak one. The relevant legal precedents in this area more or less try to determine whether “a reasonable and fully-informed observer” would consider the speech in question to be government speech, or rather private speech taking place in a public forum.
A bumper sticker is obviously the latter sort of speech, while a billboard sponsored explicitly by the state of Texas is an example of the former. Are specialty license plates more like bumper stickers or government public service announcements?
Since various Supreme Court justices seemed to be struggling with the complexities of the case during Monday’s oral argument, I’d like to solve this jurisprudential puzzler for them with a simple one-part legal test, which can be called the Boomer Sooner test.
One of the specialty plates the state offers features the logo found on the helmets of the University of Oklahoma football team, along with the phrase “Boomer Sooner.” This phrase expresses support for that football team, which means that to many Texans, these particular specialty plates are slightly more offensive than -- to this point -- hypothetical license plates bearing Al Qaeda’s flag, along the message “Death to America.”
Since there’s no chance that the reasonable, fully-informed Texas football fan would think these license plates mean that the State of Texas officially roots for the Sooners to rout the University of Texas Longhorns in the annual Red River Shootout in Dallas, that tells you all you need to know about how ordinary observers perceive specialty license plates.
More seriously, what’s most objectionable about confederate flag specialty plates isn’t that some people might mistakenly think that the Texas state government is endorsing the political views of people who display confederate flags (they will likely not commit this error). Rather, it’s conceivable that people will conclude that the state is willing to do just about anything to make a buck, including turning its license plates into a free-fire advertising zone, where anybody can sell anything as long as they’re willing to give a cut of the proceeds to the Lone Star State.
There’s a perfectly constitutional way for Texas not to allow people to feature confederate flags on the state’s license plates, which is not to sell the right to advertise their political beliefs on those plates to anyone to begin with. But that would require ever-so slightly raising some tax rate or another to make up for the lost revenue, so the state would rather try to violate the First Amendment.