Poll Shows Disconnect Between Public Opinion and Supreme Court Over License Plates

State of the First Amendment 2015

Public opinion and the U.S. Supreme Court disagree when it comes to whether a state can deny a specialty license plate to a group that wishes to display the Confederate flag.

The Newseum Institute’s recently released 2015 State of the First Amendment survey asked those surveyed to react to the statement “The government should be able to deny issuing license plates to a group that wants to display the Confederate flag on its plate.”

Thirty-two percent strongly disagreed and 24 percent mildly disagreed that the government could deny issuing such license plates. Twenty percent strongly agreed and 15 percent mildly agreed with the statement. Nine percent said they did not know. Thus, a clear majority — 56 to 35 percent — believed the government should not engage in censorship of license plates merely because the plates contain an image of the Confederate flag.

On June 18, 2015, a sharply divided U.S. Supreme Court ruled 5-4 that the state of Texas could deny a specialty license plate to the Sons of Confederate Veterans in Walker v. Texas Division, Sons of Confederate Veterans.

The majority reasoned that the specialty license plates were a form of government speech. Therefore, the majority concluded that the state of Texas could engage in such censorship because the state wasn’t censoring private speech.

Justice Samuel Alito wrote a powerful dissenting opinion in which he questioned whether the average person seeing a specialty plate would view that plate as the government speaking or the owner of the car speaking. “As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the state of Texas and not those of the owners of the cars?” Alito asked.

Alito’s question passes the common sense smell test. When I drive down the road and see a specialty license plate, I associate any views or images on that license plate more with the owner or driver of the vehicle than with the government.

So, apparently, did a majority of the participants in the State of the First Amendment survey.

Five members of the U.S. Supreme Court claimed Texas legally could deny the Sons of Confederate Veterans’ request for a license plate based on something called the government speech doctrine.

The dissenters and a majority of the people surveyed saw it differently — they saw it as a case of raw state censorship.

David L. Hudson Jr. is the ombudsman for the Newseum’s Institute First Amendment Center and the author of “Let the Students Speak: A History of the Fight for Free Speech in American Schools.”

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