Hi everyone and welcome to one of the bonus videos for this final week of the course. About a week ago, we started a discussion thread asking you for your input on any cases or issues you'd like us to discuss in a bonus video. And one of the suggestions was for a video based on the pending case before the Supreme Court called Walker versus Texas Division, Sons of Confederate Veterans, Incorporated. Now that's a free speech case with some very interesting issues. So I'd like to take some time to flesh them out. Let's start with the basics, the parties in the lawsuit. As the case name suggests, there are two parties. One is named John Walker, and he's the chairman of the Texas Department of Motor Vehicles. Mr. Walker was sued in his official capacity as an agent of the state of Texas. And the party that brought the lawsuit is the Texas branch of a group called Sons of Confederate Veterans. Let's call them SCV. Now, this group, SCV claims that it's purpose is commemorate and preserve the reputation of confederate soldiers who fought in the American Civil War in the 1860s. Now here are the basic facts of the case. Members of SCV sought state approval for a vanity license plate design. Now you might have seen these kinds of license plates while driving. They are the plates with personalized messages or a university logo, things like that. And in Texas, there are two types of specialty license plates. One group are those that are created and voted upon by the state legislature and those created by individuals, a second group. But the second group, the ones that are created by individuals have to be approved by the Department of Motor Vehicles. And the Texas transportation code allows the board of the DMV to refuse to create a new specialty license plate if the design might be offense to a member of the public. Now in this case, SCV created it's own design and sought approval from the Texas DMV board. But the problem was that the license plate design includes an image of the Confederate flag, and ultimately, the DMV board held a public hearing to consider whether to approve the license plate design, and then decided to reject the proposed plate. The key reason the agency gave for rejecting the design is that the Confederate flag is associated with hatred towards some groups, and thus, the license plate might be offensive to some members of the public. Now the reason this is a constitutional law case before the Supreme Court is because it involves free speech. The First Amendment offers protections against federal laws abridging the right to free speech. And the Fourth Amendment has been incor, has been seen to incorporate this protection against the states, too. Now you might recall that Professor Omar has discussed the idea of incorporation. And what that means here is that the Supreme Court has determined that the First Amendment's speech protections, which originally were directed only against the Federal Congress now applies against the states too by virtue of the Fourteenth Amendment. But remember too, that even though the First Amendment seems to prohibit any law that abridge's the freedom of speech, the First Amendment is not an absolute bans on laws that restrict speech. So that bring us to the facts into the heart of this case. There are potentially two issues for the court to consider here. First, the court will determine whether messages that are displayed on a specialty license plate is a form of government speech, or whether those kind of messages are just private speech. Now the distinction between private and government speech is important, because the Supreme Court has said that there is different standards for speech regulations depending on which category we're in. If a specialty plate is a form of government speech, then state officials can decide which messages to allow or to forbid. Basic idea is that the government should be able to regulate what it says since the government is the speaker. But if the license plates in this case are private speech, then the government's power to control the message is more restricted. If the court decides that these license plates are private speech, then it will have to decide a second issue. And that second question will be, if the license plates are private speech, was the state government speech regulation permissible? And we'll talk about the tests the Supreme Court uses to answer that question in a little bit, but let's start with the first issue, whether this was government or private speech. Well the state of Texas will argue that the license plate design in question constitutes government speech, and there are three main rationales that the state provides to support this position. First, Texas believes that the messages, symbols, and viewpoints on vanity license plates fall within the scope of a government program to issue specialty plates. Such a government program is going to entail government speech, according to the state. And even though an individual designs the license plate, which might suggest that this is private speech, the government still has to approve any designed plate. Thus, it becomes part of a government program, and therefore, it's government speech. Second, the state will also argue that it shouldn't be forced to endorse a private speaker's message. Rather it should permitted to disassociate itself from messages that the state does not want to promote. As an example, the state argues that it should be able to exclude things like swastikas, which were the symbol of the Nazi party during World War II, and overt racism from state-issued license plates. Here the state makes an argument, based on fair, fairness. The Supreme Court has previously concluded that free speech protects license plate holders from being forced to transmit a state's ideological message. So the state is going to argue that this rule should be a two-way street, that a state cannot be forced to convey a license plate holder's message by including it on a state bearing the states name. Finally, Texas says that this is government speech because the government effectively controls and exercises final approval authority over the design. Moreover, a specialty plate is reasonably and routinely perceived as portraying some message on the government's behalf. In other words, issuing a licence plate amounts to the state's approval of the message on the plate itself. Texas points out to the, the very reason that SCV wants to have a Confederate flag on a license plate, precisely because a licence plate carries a state seal of approval. The group SCV could easily put bumper stickers on the Confederate, of the Confederate flag on their vehicles. But instead, the group recognizes that a state issued licence plate demonstrates state endorsement. By contrast, the Sons of Confederate Veterans will argue that this is private speech. SCV points to the fact that there are two types of vanity plates in Texas. And remember that the first kind of specialty plate, well those are the kinds that have to be proposed by the Texas government and then reviewed by the state legislature, and finally approved by the governor. There are about 200 specialty plates available that have gone through this process in Texas. And these plates, SCV concedes, constitate, constitute government speech. But you might recall that there's also that second kind of specialty plate in Texas. Now these are the plates that are designed by individuals or nonprofits or businesses, and the individuals do all the designing, and the DMV either approves or rejects the plate. Of this category, the group will argue, comprises private speech since government officials don't actually have any role in creating the content of the message. Next SCV will argue that the state's arguments are based on cases that can actually be distinguished from the current one. Now you might recall how the state's argument depends, at least in part, on a claim that the government should be able to exclude messages where the state effectively controls and exercises final approval authority over the message's design. Now that argument comes directly from a case in which the Supreme Court held that a public monument is government speech, but the group in Walker will argue that a public monument is distinguishable from a license plate. For example, public monuments are permanent, while specialty plates have to be renewed every year in Texas, thus an owner of a plate can decide to remove the message. Unlike a monument, a license plate's message is readily associated with a particular individual. That's the car owner. And while a state government has authority over whether and what type of speech will occur on a monument, no speech actually occurs on a specialty plate until and unless a driver decides to drive on a public road. Thus the decision about whether a message is conveyed belongs to a private individual and not to the government. Now this is going to be a close issue, and the court's conclusion will dictate the rest of the case. If the court finds that this is government speech, the case will probably be over. Texas wins and the license plate design is rejected. But if the courts finds that the design is private speech, then it has to reach a second issue. So assuming that the license plates were private speech, the question then becomes, can the government regulate the speech at issue here? Here the court will employ its analysis of what's called viewpoint discrimination. Now the basic doctrine states that when a government opens up a forum for private citizens to speak, the government can't distinguish between potential speakers based on the speaker's forward viewpoints. Basically if the government commits, commits viewpoint discrimination, then it's violating free speech. Thus, SCV will argue that the government has rejected the license plate because of viewpoint discrimination. Texas, on the other hand, will claim that it's decision to reject the license plate design is neutral, that is, the state did not discriminate based on viewpoints. So SCV's argument will look like this. Texas' specialty plate program opened up a forum for private citizens to speak, and by rejecting the plate design with a Confederate flag on it, the state endorsed the viewpoint that the flag is a symbol for racism. This amounts to discrimination against the competing viewpoint that the flag is a symbol of sacrifice, independence, and southern heritage, views that SCV has. Now Texas will respond to this by claiming that its decision was viewpoint neutral. The state has not issued any specialty plate that negatively portrays the Confederacy, the Confederate flag, or the views espoused by the Sons of Confederate Veterans. And even though the state determined that some members of the public might be offended by the Confederate flag, the state was not approving or disapproving the message. Rather, it was just objectively concluding that some people might be offended and that's sufficient under Texas law to reject a license plate design. But Texas argues also that the only way the Sons of Confederate Veterans would be able to prove that the state committed viewpoint discrimination is if the state issued a specialty plate expressing one viewpoint on the topic and then formally rejects it, a plate expressing a different view on the same topic. Now here we should pause and, and I should add an interesting counter argument by SCV. They're going to point out that Texas actually has a state holiday on January 19th called Confederate Heroes' Day. And thus the state has arguably expressed a view on the Confederacy, and now in the context of license plate, it is implicitly endorsing an opposite viewpoint. But the state of Texas will counter and note that when it is subsidizing or assisting speech, rather than regulating or prohibiting speech, it has more latitude to use discretionary criteria such as the message's offensiveness to the public. Now that's an overview of the case and I'd like to finish with just a few thoughts and some questions. Now you might have noticed that there are some inconsistencies with the State of Texas's arguments, especially when we compare the first issue with the second issue. When claiming that this is government speech under the first issue, Texas argues that it should be able to disassociate itself from certain viewpoints. Now, this suggests that the state is disproving, disapproving of the message, and thus doesn't want to be seen as endorsing it. Yet when the state argues that it has been viewpoint neutral for purposes of the second issue, the state changes course a little bit and says that it made no judgment to approve or disapprove the message. All it did was to find that some members of the public might have been offended and thus, the state has remained neutral. Now this inconsistency might not be a big deal since the answer to issue one will determine whether the court even has to consider the second issue. Thus, the state is basically trying to cover its basis. If it loses on the first issue, it has a backup argument for the second. Now this is actually a great example of arguing in the alternative, which you'll often see in tough cases. And now I have a few final questions before I sign off. Now, do you think that there was an inconsistency in the state's arguments? And what about the arguments made by SCV? Are you convinced that their, by their argument that this is simply private speech? Because if this was really about private speech, why didn't the group members just put bumper stickers on their cars? Why did they want it to be a license plate? Now if you have any other questions or any thoughts about this case, we'd love to read them on the discussion forum. Now, that's it for now, and this may be the last week of the course, but there will be another bonus video or two coming out soon. We do hope that you've enjoyed all of the lectures thus far, and thanks for watching. [MUSIC]
