The Supreme Court, by the end of June, must rule whether the State of Texas can refuse to grant a “specialty” license plate to the Sons of Confederate Veterans. Texas has a program to allow the names and logos of groups to appear on license plates. Texas refused to grant this right to the Sons of Confederate Veterans because the Confederate flag would offend some of the population.
Interestingly, the Civil Liberties Union supported the veterans. It is dangerous, said Chief ACLLU attorney Steve Shapiro in remarks delivered May 4th in Boston, to allow states to pick and choose those elements of speech which it will, and will not, permit to appear, even on its own license plates. Yet another case of “I don’t like what you are saying but you have a constitutional right to say it.”
Note that the Civil Liberties Union has a case against North Carolina, which permits license plates to proclaim that the driver is “pro-life” but not that the driver “respects choice.”
In a separate case just decided, a husband put potentially threatening material into rap lyrics, directed against his estranged wife, and posted those lyrics on the internet. The First Amendment does not protect a threat, but what is the definition of a threat? How do you know?
The general rule is an objective test: would a reasonable person feel threatened? The Civil Liberties Union had argued that you must also apply a second test: what was the subjective motivation of the person delivering the “threat;” you don’t want to leave the determination of what is, and what is not, a threat to the government based solely on content, as that fosters de facto censorship.
Interesting sidelight: does posting the speech on the internet make it more threatening (because it is generally circulated and well known) or less threatening (everyone knows that people say whatever they want on the internet which is the Wild West of communications).
Finally, in a third case now pending, Florida law prohibits judicial candidates (they elect their judges down there) from soliciting their own contributions. They can give their contribution list to their election committee, and if someone donates they can send a personal thank you note, but they can’t send out the solicitation letter itself.
The Supreme Court has just upheld that law (and the prohibition) by a 5-4 vote, with conservative Chief Justice Roberts joining the four most liberal members of the bench. Is it constitutionally permissible to prevent a candidate for office from exercising his or her right to speak by soliciting donations? The Supreme Court thinks so at least for judges. The interest in keeping the judiciary untainted was found to be a higher government interest justifying governmental restriction of the candidate’s political speech.
One could find this an odd decision; the sanctity of the judiciary may be fundamentally compromised by electing judges in the first place.