Friday, June 19, 2015

The Usual Suspects

As a revenue-raising measure, Texas allows private citizens to design their own special license plates. One group wanted to display the Confederate battle flag, but the state refused--under the law it was allowed to reject applications offensive to the public.  The Supreme Court just came down with an opinion allowing Texas to make this call, despite First Amendment objections.

I could see the case going either way, though I disagree with the outcome.  But what was too predictable was the majority in the 5-4 decision.  All four liberals on the Court, plus one crossover from the conservatives, Justice Thomas (as I expected considering his previous opinions).  Any Justices could go either way, one would think, so why is it that the liberals were uniform in rejecting the First Amendment argument?  There was a time when the left seemed to be the stronger supporters of freedom of speech, but I don't see how anyone can claim that any more.

By the way, the state's Solicitor General argued that drivers "cannot commandeer the State into promoting the Confederate battle flag on a state-issued license plate." First, who's commandeering anything?  The state offered this service to its citizens (at extra cost).  Second, how is the state promoting this flag?  As long as it doesn't pick and choose what plates to allow regarding political issues, it won't be seen as promoting anything but freedom.


Anonymous Anonymous said...

Bad body odor?

4:11 AM, June 19, 2015  
Anonymous Anonymous said...

Board of Bar Overseers. OK same thing

5:49 AM, June 19, 2015  
Anonymous Denver Guy said...

I was leaning toward this outcome, and I actually expected it to be a stronger opinion. I'm 4 for 5 now, if you count leans. I believe the difference comes whether one believes that government is allowed to be an actor in commerce like private entities.

Certainly, given the authority government has to coerce behaviors, it is necessary that it's commercial choices be circumscribed by the Constitution, among other things. So the Gov't must not discriminate (without substantial state (public) interest in doing so). But in purely commercial decisions, I believe the government should be allowed to make choices that private entities do. This is why I support government, in its own choices, implementing affirmative action, economic empowerment zones, and other discriminatory practices designed to accomplish public goals (even if I sometimes think the decision is wrong headed).

So just because it is the government selling advertising space on its signs (license plates) doesn't mean it is required to put anything legal on the sign that the customer wants. I would say the same if a baker refused to bake a cake with a swastika on it. The Government enjoys its own freedom of speech, which includes the right not to speak or say objectionable things. City's can pick and choose what ads they sell on their buses, for example, just like a private person who owns a billboard.

The other sign decision yesterday points up the difference. The Government may rent or sell signage space to the public, but because the signs are priavtely owned (that is, not the speech of the government), it cannot regulate those signs based on content (again, without substantial state interest in doing so). This decision has local governments up in arms. They want to be able to say political message signs may be larger than religious directional signs.

I often feel zoning boards get a little bit carried away. A private HOA I can understand - the people subject to the HOA rules actually signed a contract agreeing to be so subject. Not so zoning boards, elected (or appointed by elected officials), who quickly devolve into majority backed tyrannies (okay - perhaps I'm exagerating a bit).

8:35 AM, June 19, 2015  
Blogger LAGuy said...

I strongly disagree with your position, Denver Guy, but I think you already knew that. (For instance, a private individual can decide to support one religion and ban all others in her bumper sticker selection, but a state should not be allowed to make a rule where a cross is okay and a Star of David is okay but not a star and crescent.)

But what I don't get in this case is why liberals lined up on one side and conservatives on the other. I didn't politics had to control this case, and I held out some hope the split (even if they decided the case wrongly) wouldn't be predictable.

9:05 AM, June 19, 2015  
Anonymous Anonymous said...

The left/right divide has infected the judiciary (more openly at least) so its all just team sports

11:28 AM, June 19, 2015  

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