The Beef Board rule was, as scholar Robert Post later wrote, “a blunt ipse dixit,” which is lawyer talk for “do it because I’m the daddy.” The lack of a real explanation left the “government speech” doctrine dangerously adrift, like a loose barge on a swollen river.
The doctrine next appeared in 2009 in a dispute over monuments in Pioneer Park in the metropolis of Pleasant Grove, Utah. Pleasant Grove allowed the Benevolent and Protective Order of Eagles to erect a large stone monument to the Ten Commandments. In 2003, a New Age religion, Summum, requested permission to erect a similar monument to the Seven Summum Principles (here’s one of the less obscure ones: “As above, so below; as below, so above”), which its members believe were on the original stone tablets handed down by God to Moses. (Moses got cheesed at the Israelites and broke the first set, remember?) The city rejected the gift and Summum sued, claiming that accepting the Ten Commandments created a “public forum” in the park, which they were entitled to use as well.
Writing for eight of the nine justices, Samuel Alito rejected the argument. “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech,” Alito wrote. The government could choose to “say” the Ten Commandments and not to “say” the Summum Principles.
That brings us to the license-plate case. A license plate is not an occasional ad for beef and it’s certainly not a monument. It’s a sign, property of the state, that every motorist is required to display visibly at all times on his or her property. A lot of states, like Texas, have decided to cash in on this requirement by letting private groups pay to display messages on “specialized plates.” Is the license plate a First Amendment-free zone where the state can decide what to require each person to “say”—and what to forbid?
In 1977 the Court held that the state of New Hampshire couldn’t arrest a religious objector who covered over the state motto (“Live Free or Die”) on his plate; in the Texas case, the state wants the same “right”—it objects to the Battle Flag, and wants to cover it up. Because the plates are government speech, Scott Keller, the Solicitor General of Texas, told the justices, the state could use them to encourage some messages and groups, and to silence others, for any reason it chose, aesthetic or political—or indeed, for no reason except whim.
The justices didn’t like that answer; they also didn’t like the idea, proposed by the lawyer for the Sons of Confederate Veterans, that a state that sells “specialized” plates must provide one containing any word or symbol, no matter how foul.
Government is usually the loudest voice in the room; we need rules on how much attention it has to pay to citizens when it decides to shout. A workable rule will balance citizens’ speech rights against government necessity. A number of the justices don’t care much for balancing. But there’s really no escaping it in an area this delicate. The Texas case seems like a good chance for this Court to start settling this beef.