Tuesday, March 22, 2016
Dallas Morning News (March 15, 2016): The problem with the anti-abortion speciality license plate, by Noah Feldman:
Noah Feldman's column discusses a flaw in the Supreme Court's free speech jurisprudence. In a decision upholding Texas's ability to refuse to allow a license plate with a Confederate flag, the Supreme Court held that license plates are government speech. This decision led to a reversal of a Fourth Circuit case holding that if North Carolina offers drivers an anti-abortion license plate, it must also offer a pro-choice plate.
According to Feldman:
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 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 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 binary: Either the government can say anything it wants or else it’s heavily constrained by the risk that it might unconstitutionally limit free speech.
Feldman suggests that the court should carve out a "middle ground" for situations where the creates branding opportunities to private actors. "In such circumstances, the government should be banned from giving space to only one side in a dispute. But the government should be allowed to exclude certain content on the grounds that it might cause offense."