The Texas chapter of the Sons of Confederate Veterans (SCV) sought to create a specialty license plate. State authorities rejected the SCV's proposed design because it features a Confederate flag. Presumably the rejection was premised on the argument that the Confederate flag is a racist symbol, or at the very least has racial connotations that are likely to cause offense. However, "lawyers for the SCV stressed that a visitor to the gift shop in the Texas Capitol can buy replica Confederate currency and miniature Confederate flags, yet when the SCV sought to express the same message it was rejected." Sounds like a classic case of right-hand-doesn't-know-what-the-left-hand-is-doing syndrome.
The SCV sued for violation of its right to freedom of speech. SCOTUSblog sums up the central legal question:
If a state is forbidden by the Constitution to dictate the message that private citizens must put on their license plates, is it also forbidden to veto a message that citizens would prefer? That has been a lingering First Amendment question for nearly four decades, but the Supreme Court now seems prepared to answer it. The answer depends, simply, on whether the voice of the license plate is that of the government, or of the motorist.The Supreme Court is finally weighing in because license plate cases come up fairly often. Many of those cases concern "Choose Life" plates.
But if the voice of the license plate is that of the motorist, Choose Life plates should become available in all 50 states. According to Choose-Life.org, pro-life plates are currently available in 27 states and the District of Columbia; approval is being sought in another 15 states; and the plates are tied up in court in New York and North Carolina.
This isn't just a matter of protecting pro-life speech from censorship, as serious an issue as that is. To date, Choose Life plate sales have raised more than $21 million for pregnancy resource centers. If the Court rules in favor of the SCV, that number could grow tremendously.
What about our loyal opposition? Would they take advantage of a favorable ruling to raise license plate money for abortion businesses? They would certainly try, but I'm not terribly concerned. As I previously wrote in connection with the pending North Carolina plate lawsuit:
[T]he availability of a pro-choice plate is no threat to us, and will probably help the pro-life movement in the long run. In those states where pro-choice plates have been introduced, they've been duds. For instance, in Montana, the state Right to Life organization raised $5,570 from specialty license plate sales between April and June 2011. Planned Parenthood of Montana, during the same time frame? $700.I also anticipate that, if the Court rules in favor of the SCV, states will quickly implement viewpoint-neutral measures to limit less popular plates, in order to avoid the administrative burden of creating plates that only one or two people want. Those requirements will pass constitutional scrutiny. They will also likely filter out plates with pro-abortion messages.
For example, my home state of Florida requires 1,000 presales before a plate is produced, and "discontinues specialty plates if its sales numbers fall below 1,000 plates for 12 consecutive months." Critics of Florida's gluttonous approach to specialty plates (we have 123) feel that the cut-off number should be higher. I'm inclined to agree. But whatever the number is, Choose Life plates will be safe; they're the #13 best-selling plate in Florida, with nearly 25,000 sold last year.
That's a lot of funding for programs helping mothers in crisis. Let's hope that success spreads to other states! We will alert you when the Supreme Court's decision is announced (which probably will take several months).