What really matters about the decision about Texas license plates? The conversation is all about the plates. That’s a part of what lawsuits do. They get us talking about the specific example, the thing that the plaintiff wanted to do.
Yet surely the plates themselves are no big deal. The Sons of Confederate Veterans could have advertised their treasonous admiration for the Confederacy on a bumper sticker and other signs. Their rebellion has hardly been scotched because they can’t get it on their plates.
One larger issue is the justification, the reasoning of the decision. Breyer says they can’t put it on their plates because the plates aren’t theirs at all. They are the plates of the great state of Texas. And Texas won’t put its confederate past on its license plates.
That actually is troubling. We decide lots of issues of free speech by deciding whether the speech belongs to government. That troubles me because it doesn’t ask what the free marketplace of ideas needs. Not that the decision about the plates should have been any different but the explanation is different, and in law, explanations matter. They tell you about many cases.
Free speech doctrine is driven by the needs of the system of free speech. But the distinction between our speech and government speech is all about property. I get very suspicious when the boundaries of freedom are decided by rules and discussions unrelated to free speech, and instead about what belongs to the government.
If the clinic belongs to the government it can tell the doctor what to say. If the legal aid society belongs to the government, can government tell the lawyers what to say? Justice Stevens tweaked Justice Souter in the middle of the argument about legal aid lawyers over Souter’s position in the decision about doctors and whether they could say anything about abortion. And if the government likes the speech of one group more than another, can government decide to make it their speech and subsidize it while penalizing the other? Well actually the Court said yes even though it also says government has the obligation to treat everyone equally. So that comes out as just as equally as the government wants. That’s some equality. But that’s how government, courts and law can speak out of two sides of their mouths.
So the Court claims a big blow for free speech – a blow so hard it’s no more than a joke. Why is it worth anyone’s while to bring a case like that to the Supreme Court? That’s very expensive, especially the time it takes of a team of attorneys to put the papers together and prepare for the argument. It costs a lot more than the paltry sum for the vanity plates or even the $8000 for a new plate design. People sometimes bring suits like that for the impact it will have on the law if they win. And people sometimes bring suits like that for the publicity. Now everyone knows the Texas secessionists are fighting mad. The goal isn’t the plates. It’s the PR. You win by losing as much, maybe more, than by winning.
But now there’s another brick in the insidious doctrine about how government owns the opportunities for private speech. How about corralling demonstrators in pens where they can’t be seen during a political party’s convention? After all, the streets are public. And how about throwing citizens into the same pasture with giant corporations to see if they can be heard? After all, if corporations are people, then they have minds, mouths and rights. That’s what happens when important decisions are based on irrelevancies.
— This commentary was broadcast on WAMC Northeast Report, June 22, 2015.
 Walker v. Tex. Div., Sons of Confederate Veterans, 2015 U.S. LEXIS 4063 (U.S. June 18, 2015).
 Rust v. Sullivan, 500 U.S. 173 (1991).
 Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001).
 Regan v. Taxation with Representation, 461 U.S. 540 (1983).
 Cf. United States v. Kokinda, 497 U.S. 720 (U.S. 1990).
 Citizens United v. FEC, 558 U.S. 310 (2010).