Did the Framers of the Constitution recognize a historically grounded fundamental right to have annoying signs on the back of your car? Applying originalist and strict constructionist principles of constitutional interpretation, we ask: Did George Washington advertise his views on taxation on the rear end of his horse? Did Mary and Joseph flee to Egypt on a donkey whose hindquarters proclaimed “Baby on Board”? No? Well, that should settle it.
But shouldn’t we also consider penumbras, emanations and evolving standards of indecency? As Samuel Johnson famously remarked to Boswell, “Sir, I give not a farthing for what some total stranger chooseth to inscribe on the back of his conveyance. I know of no man, Sir, whose considered views upon a subject have been altered by the sight of contrary views emblazoned in such vulgar fashion. A displeasing message scribbled thus serves only to proclaim to the World that the occupants of said conveyance are but fools and scallywags.”
Nevertheless, messages on custom license plates became a matter of Supreme concern last term. What’s the difference, you may ask, between this bumper sticker, which is permitted:
and this license plate, which is prohibited:
except that one costs fifty cents and the other costs thousands of dollars?
The difference is of overwhelming constitutional significance, said the Supreme Court in Walker v. Texas Division, Sons of Confederate Veterans (2015). Custom license plates, they explain, are government speech, which the government can restrict in any way it wants. “A person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. . . . That may well be because Texas’s license plate designs convey government agreement with the message displayed” (italics added).
Really? These plates (all real) convey messages endorsed by the Texas Legislature? Eat junk food? Root for out-of-state sports teams? Prefer golfing to legislating?
Here in New York, where it’s generally recognized that the Confederacy lost the war, the controversy wasn’t over Dixie flags but over a proposed anti-abortion custom plate. Children First Foundation v. Fiala (2d Cir. 2015).
The Second Circuit couldn’t bring itself to say with a straight face that license plates represent the Government’s viewpoint. Instead, the court upheld the ban on the controversial message by saying that license plates are merely revenue-raising, vehicle-identifying devices, not expressive activity to which the First Amendment applies. These (real plates) look pretty expressive to us:
On that note – Squawk is taking the summer off to write a detective story. We’ll say only that the hero is a defense attorney and the corpse is a prosecutor. We shall return.