North Carolina offers drivers a license plate with the anti-abortion slogan “Choose Life,” but for years has refused to offer a pro-choice plate. If you think that sounds like the state is unlawfully choosing between the two viewpoints, you’re not alone. In 2014, the U.S. Court of Appeals for the 4th Circuit said the state had to play fair under the First Amendment and allow both.
Last week, the appeals court reversed itself – and not by choice. It was following orders, by applying the U.S. Supreme Court’s 2015 decision that upheld a Texas license-plate program in which the state refused to allow a plate featuring a Confederate battle flag.
The 4th Circuit’s decision is technically correct under the Texas precedent. But it shows a serious flaw in the Supreme Court’s free-speech jurisprudence.
The Texas decision featured an unusual five-justice majority of the court’s four liberals plus Justice Clarence Thomas. The logic was simple and binary. Either the license-plate program should be considered speech by the person choosing the design or it counted as government speech.
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The court’s majority wanted the state to be able to deny the Confederate plate – so it held that it was government speech. That choice put the Texas program, and others like it, outside the reach of the First Amendment.
The idea of the government speech doctrine is that the government can say anything it likes when it’s talking, provided it doesn’t violate some other constitutional provision like establishing religion or depriving someone of the equal protection of the laws. If the government wants to say that it opposes abortion, it can. Ditto if it wants to say it protects a woman’s right to choose. The state needn’t be neutral between different values or ideals.
You can see why this doctrine might be appealing to the court. If the majority had treated the Texas license-plate program as creating some a forum for speech – the way it treats ads on public buses, for example – then the government almost certainly couldn’t have excluded the Confederate flag. Even in a public forum that’s limited to certain subjects, the state can’t discriminate based on the speaker’s viewpoint.
The problem with making license plates into government speech is twofold. First, the government isn’t speaking alone. In his dissent in the North Carolina case, Judge James Wynn wrote that any reasonably well-informed observer would know the individual is speaking, too. The government is speaking by providing a range of options for the license plate. The private individual is speaking by choosing one of the options.
The government speech doctrine pretends that only the government is talking – because that’s the only way to give the government the authority to exclude certain viewpoints. That power comes at the expense of a highly questionable limitation on what’s actually private speech.
The North Carolina case makes the viewpoint discrimination especially clear because the abortion issue has two easily recognized sides. If you want an abortion-rights plate to speak against the anti-abortion plate, you simply can’t get one. The message is by definition unavailable to you.
It isn’t just that the government disagrees with you. It’s actively giving the other side a forum in which to express its view while denying the same forum to you.
The second problem with the Supreme Court’s government speech doctrine as it’s now being applied is that it’s too binary: Either the government can say anything it wants or else it’s heavily constrained by the risk that it might be unconstitutionally limiting free speech.
It would be wise for the court to carve out an explicit middle ground for an increasingly common situation in which the government creates and sells branding opportunities to private actors. In such circumstances, the government should be banned from giving space to only one side in a dispute. But it should be allowed to exclude certain content on the ground that it might cause offense.
As applied to the North Carolina case, this rule would require the government to allow a pro-choice plate if it allows a pro-life plate. Allowing only one is viewpoint discrimination. But if the state was worried about the topic being offensive, it could exclude abortion-related messages from license plates altogether.
As applied to the Texas case, the same rule would’ve allowed the state to block the Confederate flag as a symbol that might be offensive to many people. That wouldn’t count as viewpoint discrimination so long as other potentially offensive symbols were also excluded, regardless of their political perspective.
The rule I’m proposing isn’t so far from what current doctrine allows. In a limited public forum, the government is (in theory) allowed to pick and choose what can be said based on subject matter, excluding certain subjects from the forum it has created. Offensive subjects are a plausible example of subjects that could be excluded.
In mass-transit advertising cases, which the Supreme Court declined to review last week, some appellate courts have allowed the government to exclude ads that might give offense. That makes sense in a limited public forum, where the government is selling a branding opportunity. A private company doing the same would also want to make sure it avoids certain controversial topics or offensive messages.
There will still be borderline cases in which the distinction between avoiding offense and discriminating based on viewpoint will be tricky. But all legal rules face this problem. A nuanced legal solution would help avoid the absurdity of the North Carolina result.
Noah Feldman is a professor of constitutional and international law at Harvard.