In March the Supreme Court will hear a case in which a Texas group is appealing the state’s refusal to style vanity license plates that include an image of the Confederate flag. The plaintiff’s argument rests on First Amendment rights: because Texas allows other citizens to choose images for license plates, the state is violating the right to free speech by suppressing this group’s preference. Another license plate case is being hammered out in the lower courts in North Carolina. There the ACLU is suing on behalf of a plaintiff who wants a pro-abortion vanity license plate, given that the state permits pro-life licenses.
One might think that these cases should be decided the same way, but Corey Brettschneider and Nelson Tebbe suggest otherwise in a characteristically thoughtful oped in The New York Times. The authors argue that messages on license plates are a mixture of private and public speech. Thus the Court should balance the private interest in free expression with the public interest in permitting the government to control its own messages. They conclude that Texas can suppress the vanity plate bearing an image of the Confederate flag but that North Carolina must permit the pro-choice sentiment because the Confederate flag is a symbol contrary to the constitutional values of equal protection of the law, while pro-abortion sentiments endorse a legally guaranteed constitutional right.
I respectfully disagree. Although the government has no obligation to provide the opportunity for messages on vanity plates (and if I were a legislator, I would not vote to have them), it should not discriminate among messages based on their content once it opens up this space.