What do the Confederate flag, the words “Respect Choice” and the message “Choose Life” have in common? DMVs in many states are arbitrarily banning them from license plates.
Texas officials nixed the Confederate flag after an African-American pastor labelled it a symbol of oppression at a public hearing, even while nine other states allow it. New York officials sell specialized license plates that promote union membership but not adoption.
New York claims any message linked to a pro-life cause is “patently offensive.” North Carolina tried the opposite, authorizing pro-life plates but not pro-choice.
These officials are claiming to be peacekeepers, cracking down to keep anyone from getting insulted by an unpopular idea. Sorry, but that’s un-American. The exchange of ideas, however controversial, has always been the bedrock of our democracy.
Dictatorships and Muslim theocracies silence controversial ideas by jailing dissidents and imposing blasphemy laws. Our U.S. Constitution bars government from doing that. The First Amendment says government “shall make no law . . . abridging the freedom of speech.”
It’s alarming to see government officials chipping away at that right, censoring at whim what can be advertised on buses and subways or displayed on license plates.
Within a few days, the United States Supreme Court will rule in a case pitting Texas DMV officials against the Sons of Confederate Veterans. Monuments to the Confederacy dot public parks in Texas, and the state celebrates its Confederate past with an annual holiday.
Yet state officials told the Sons of Confederate Veterans they can’t have a license plate with their logo, the Confederate flag, because someone might take offense.
The stakes are far higher than whether Texans can display the Confederate flag on their plates. Lower courts in many states, including New York and North Carolina, are waiting for guidance on how far government officials can go to scrub our highways, mass transit, and other public places of political and cultural controversy.
This government censorship is pushing us toward what George Orwell described in his famous novel, "1984." In it, the public is bombarded with government messages from loudspeakers and billboards everywhere, with no competing voice.
That’s how New York sells its specialized license plates, giving the DMV commissioner full control of the messages. State regulations say “no plate shall be issued that is . . . in the discretion of the commissioner, obscene, lewd, lascivious, derogatory to a particular ethnic or other group, or patently offensive.”
The Children’s First Foundation requested plates picturing two smiling toddlers with the words “Choose Life.” The DMV refused, saying the issue was “politically sensitive,” and “a significant segment of the population” would find it offensive. A DMV official even speculated that the words could be construed to be anti--abortion and provoke “road rage.”
Astoundingly, on May 22, a federal appeals court upheld the New York DMV’s power to pick and choose ads by a 2-1 vote. The lone dissenting judge, Debra Ann Livingston, ridiculed the ruling, and with good reason.
Quoting former Chief Justice William Brennan, she explained that the Constitution is shredded “when the determination of who may speak and who may not is left to the unbridled discretion of a government official.”
Livingston mocked the DMV’s pretense that specialty plates promoting union membership are politically neutral. Ever heard of the right to work movement and charter schools, she asked.
The good news is that the appeals court’s flawed decision is provisional, pending whatever the Supreme Court rules in the Texas case. That ruling’s reach will go well beyond license plates. It will also determine how public transit agencies handle controversial ads on trains and busses.
Just weeks ago, Philadelphia, Seattle, New York, Washington D.C. and Boston tried to ban Pamela Geller’s denouncing radical Islam. Should transit officials be able to pick and choose who advertises?
No, says the American Civil Liberties Union, which also weighed in on license plates. The ACLU repeated Justice Louis Brandeis’s famous observation that the answer to offensive speech is “more speech, not enforced silence.”
The Justices will decide whether or not to continue this nation’s long commitment to maximizing freedom of expression, even when it means tolerating messages we don’t like. Or whether we have to live in an Orwellian world where government does our thinking for us.
Betsy McCaughey is a patient advocate, constitutional scholar, syndicated columnist, regular contributor on Fox News and CNBC, and former lieutenant governor of New York. In 1993 she read the 1,362-page Clinton health bill, warned the nation what it said, and made history. McCaughey earned her Ph.D. in constitutional history from Columbia University. She is author of "Beating Obamacare 2014" and "Government by Choice: Inventing the United States Constitution." For more of Betsy's reports, Go Here Now.
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