Sometimes the United States Supreme Court decides a case in a manner that leaves no room for policy choices. The school desegregation and recent marriage cases are examples of that kind of case; they define rights that government must accord equally to all.
The recent Supreme Court decision involving Texas license plates and the display of the Battle Flag of the Army of Northern Virginia, often described as the Confederate flag, is, however, a different kind of case. It is a case that leaves Virginia with a clear policy choice. Virginia can accept the idea that what appears on license plates is government speech that the Legislature may regulate. Alternatively, it can decide freely to define specialty license plates as a public forum for private speech offered to all Virginians without government oversight of content.
The ACLU of Virginia firmly believes that the so-called Confederate flag has become a banner of hate that evokes bigotry, incites terror and undermines human dignity. The governor’s impulse to distance Virginia’s government as far as possible from that symbol of racism is appropriate and commendable.
Nonetheless, there is a way for Virginia’s government to distance itself from the license plate message while at the same time respecting the free speech rights of all Virginians. Virginia can take positive action to declare that the state’s specialty license plate system is a public forum for private speech over which the government will not exert content control. Given that Virginia currently requires hundreds of private individuals to pay money to reserve a specialty plate before the government will even consider whether to issue one, declaring specialty plates a public forum for private speech hardly seems a stretch.
Virginia can continue to offer its citizens access to specialty plates without government endorsement by explicitly declaring that specialty plates are a public forum for private speech, taking the approval process out of the hands of the General Assembly and assigning that process to the Department of Motor Vehicles. The DMV would administer the specialty plate program according to clear rules that do not favor any viewpoint over another.
Choosing this free speech option means, of course, that we will continue to see plenty of license plates with messages we don’t like, but it will be clear to everyone that those messages are not coming from the government; it will be the person whose vehicle the plate is on doing the “speaking.”
The current system, in which the General Assembly accepts or rejects specialty plates proposed by various groups on a case-by-case basis, is untenable. As long as the General Assembly has unfettered discretion to create license plates and specialty plates are defined as government speech, there will be conflict between the government’s desire to control the messages on license plates and the free speech of private individuals and groups that want to use specialty plates to promulgate their own views. The General Assembly will be “invited” repeatedly to vote on suggested license plate “messages” — resulting in the government outlawing some speech while approving other speech based on the content of the message (for example, approving a gun control plate and denying issuance of an NRA plate).
The ACLU has always said that the remedy for bad speech is more speech. Waving the so-called Confederate flag is the worst kind of bad speech. Nonetheless, rather than accept the role of government censor, Virginia’s response to the Sons of Confederate Veterans’ speech should be to declare specialty plates a “public forum” and invite and allow other groups to create license plates that promote civil rights, reject racism and support equality for all.