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 Div Sons of Confederate Veterans Inc. 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: