Religion/politics. I'm a little disappointed, Snarf.
"It is possible to find some kernel of expression in almost every activity a person undertakes — for example, walking down the street or meeting one's friends at a shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." Dallas v. Stanglin, 490 U.S. 19, 25 (1989).
This being yet another of my occasional disquisitions on The Law as handed down by The Man, wherein I previously described the magic words that allow any pro se litigant to win their case. It would be a real shame if you missed that one. Today, however, I return to the issue of the First Amendment, and, by example, a case that was previously before the the Nazgûl, the most honored nine of SCOTUS. I speak, of course, of Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015). Why this old case? Because people have been discussing the First Amendment again, and I thought it might be interesting if anyone wanted to try their own hand at seeing how a case might turn out, with the actual ability to then check it!
This is a case that raised many questions, the primary one being- why is Walker, Texas Ranger, suing the great state of Texas? The second being- who would mess with Texas, and why? As the first question falls within the unknown unknowns, we must turn to the second.
In essence, this was a case about license plates. And the First Amendment. And the Confederate flag. As it arrived at the intersection of driving, free speech, racism, and Texas, it involved all things American, and must therefore be decided by the Nazgûl. But, more importantly, what was this case about, and what did it teach us about free speech?
Once, long ago, license plates were simple. They had alphanumeric identifiers. And the state. If the state was feeling frisky, the state would add a motto. Sometimes, if the state was feeling ironic, they would have their prisoners stamp, "Live free or die" on the license plates. And nobody gave it a second thought (except the prisoners, and Jehovah's Witnesses, who love prisoners). But then a few states realized that license plates could be used to raise revenue, and the boom of the specialty license plates started.
At first, it was no big deal. You know- "Support Veterans." "Support (endangered species X that was indigenous to the state)." "Support Education." But the specialty license plates began to spread like kudzu. "Support this particular branch of the armed forces." "Support this local university." "Support yoga instructors." "Support yo mama 'cuz she so broke she eats cereal with a fork to save milk." And the messages on the license plates began to be, well, a little more controversial. "Choose life." And, in the case that was before the Supreme Court, a Confederate flag. The case was before them because Texas doesn't want the flag there, and the Sons of Confederate Veterans believed they had the right to have the flag on it. There were oral arguments held. So, before finding out what happened, what do you think?
First, you can read the briefs here if you'd like. SCROLL DOWN AND DO NOT READ THE PART AT THE BEGINNING.
Second, you can find the oral arguments here (both audio recording and transcript- look to the left).
Second, the fact that this case was before the Nazgûl at all is a relatively recent phenomenon. In the old days, it wouldn't have ever gone before them because 1) the idea that a person could force their viewpoint on a license plate would have been absurd, and 2) Texas would have loved to put ol' Dixie on their license plates. But, times changed. Even in Texas.
Third, the "turd in the punchbowl" theory is proven once again. Nothing good can ever happen with the law before someone has to take it too far. This is why, depending on your viewpoint in a given case, we either a) can't have nice things, b) need the gummint to start paying attention to the Constitution, or c) need to legalize marijuana at the federal level already. Remember, though, the likelihood that a person wants the government to allow the Confederate flag on license plates tends to vary inversely with the likelihood that they want a Satanist display with the nativity scene in the town square, and vice versa.
From this, we can examine, in depth, how the Justices reacted to the arguments in 2015. Texas's argument was very simple- this isn't speech by the Sons on the license plate, it was speech by the government. To which a reasonable person might respond, WTF? Think of government speech like this- you get a driver's license. The license is government speech. You might want to replace all the speech by the government with your own (you know, replace your height, weight, and the big red thing from those DUIs with Hello Kitty pictures), but you can't. It's the government speaking, not you, fool. Now shut up and eat your government cheese. This argument didn't seem to resonate with most of the Justices in oral arguments. Except Scalia. He loves government cheese. It looks like he doesn't want to mess with Texas. And he seems annoyed that this case is in front of him. The rest of the Justices, however, have different concerns about Texas's maximalist approach, such as what would stop Texas from allowing "Vote Vader" license plates but prohibiting "Vote Luke?" To which Texas replies, "Well, while we can do whatever we want to under our theory and the First Amendment, we couldn't do that, because ... something else in the Constitution?" Yes, Texas has hired a random internet commenter as their appellant counsel. Or perhaps it was Meatloaf. Texas can do anything under the law, but they won't do that.
The Sons (short for Sons of B.. yeah, you know) also had a very simple argument- Texas can't prohibit jack squat. They opened up this forum for speech, they sowed the wind, AND NOW THEY SHALL HARVEST THE WHIRLWIND! Confederate flag? Fine. Kill all the Bards? Fine. Eat My Grits Or die? Doublefine. Buy State Farm insurance? Discount Double Check! Texans love Diddy? Why the heck not? How you like deez nutz on ur chin? Well, deez nutz can be both on my chin and on the license plate! Any group, anywhere, can mess with Texas, and its license plates, as much they want to. Free speech in the hizzy!
Needless to say, this argument also bothers the Justices. Except Scalia, who is busy eating the government cheese and apparently decided against the Sons long before the case even began. Or maybe he didn't, and was messin' with Texas for government cheese. Hard to tell.
Now, these Justices might not be familiar with getting a license plate, but they have seen many from their chauffeured town cars, and they don't appreciate the idea of seeing all this free speech everywhere. What if people want to get "SCOTUS is Scrotum" license plates? So they ask both the Sons and Texas for a solution, maybe some type of limited-purpose public forum? Some compromise? Nope. Not having it. This is Rome vs. Spartacus. Empire vs. Freedom. Snarf versus Bards. Only one side will be victorious, no quarter drawn. Neither advocate will give the Justices an out. If they want one, they'll have to do it on their own (by which I mean their law clerks will have to find a way ... yeah, we know). And the Justices understand that victory for the Sons could very well mean the END OF CIVILIZATION, or, at least, the specialty license plate system- because if states have to open it up to all the crazies, maybe they needs to shut it all down. After all, a ruling for the Sons means I will be first in line to get my Hello Kitty license plate with smiling poop emojis in place of alphanumeric identifiers.* Take that, government chee... um, speech!
*Admittedly, a reboot of Smokey and the Bandit with the Hello Kitty/poop emoji would be kinda fun....
So, how did this turn out? How do you think the Justices ruled? Feel free to think about it, and how you might handle this issue, before going into the spoiler.
So, how did you do?
This being yet another of my occasional disquisitions on The Law as handed down by The Man, wherein I previously described the magic words that allow any pro se litigant to win their case. It would be a real shame if you missed that one. Today, however, I return to the issue of the First Amendment, and, by example, a case that was previously before the the Nazgûl, the most honored nine of SCOTUS. I speak, of course, of Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015). Why this old case? Because people have been discussing the First Amendment again, and I thought it might be interesting if anyone wanted to try their own hand at seeing how a case might turn out, with the actual ability to then check it!
This is a case that raised many questions, the primary one being- why is Walker, Texas Ranger, suing the great state of Texas? The second being- who would mess with Texas, and why? As the first question falls within the unknown unknowns, we must turn to the second.
In essence, this was a case about license plates. And the First Amendment. And the Confederate flag. As it arrived at the intersection of driving, free speech, racism, and Texas, it involved all things American, and must therefore be decided by the Nazgûl. But, more importantly, what was this case about, and what did it teach us about free speech?
Once, long ago, license plates were simple. They had alphanumeric identifiers. And the state. If the state was feeling frisky, the state would add a motto. Sometimes, if the state was feeling ironic, they would have their prisoners stamp, "Live free or die" on the license plates. And nobody gave it a second thought (except the prisoners, and Jehovah's Witnesses, who love prisoners). But then a few states realized that license plates could be used to raise revenue, and the boom of the specialty license plates started.
At first, it was no big deal. You know- "Support Veterans." "Support (endangered species X that was indigenous to the state)." "Support Education." But the specialty license plates began to spread like kudzu. "Support this particular branch of the armed forces." "Support this local university." "Support yoga instructors." "Support yo mama 'cuz she so broke she eats cereal with a fork to save milk." And the messages on the license plates began to be, well, a little more controversial. "Choose life." And, in the case that was before the Supreme Court, a Confederate flag. The case was before them because Texas doesn't want the flag there, and the Sons of Confederate Veterans believed they had the right to have the flag on it. There were oral arguments held. So, before finding out what happened, what do you think?
First, you can read the briefs here if you'd like. SCROLL DOWN AND DO NOT READ THE PART AT THE BEGINNING.
Second, you can find the oral arguments here (both audio recording and transcript- look to the left).
Second, the fact that this case was before the Nazgûl at all is a relatively recent phenomenon. In the old days, it wouldn't have ever gone before them because 1) the idea that a person could force their viewpoint on a license plate would have been absurd, and 2) Texas would have loved to put ol' Dixie on their license plates. But, times changed. Even in Texas.
Third, the "turd in the punchbowl" theory is proven once again. Nothing good can ever happen with the law before someone has to take it too far. This is why, depending on your viewpoint in a given case, we either a) can't have nice things, b) need the gummint to start paying attention to the Constitution, or c) need to legalize marijuana at the federal level already. Remember, though, the likelihood that a person wants the government to allow the Confederate flag on license plates tends to vary inversely with the likelihood that they want a Satanist display with the nativity scene in the town square, and vice versa.
From this, we can examine, in depth, how the Justices reacted to the arguments in 2015. Texas's argument was very simple- this isn't speech by the Sons on the license plate, it was speech by the government. To which a reasonable person might respond, WTF? Think of government speech like this- you get a driver's license. The license is government speech. You might want to replace all the speech by the government with your own (you know, replace your height, weight, and the big red thing from those DUIs with Hello Kitty pictures), but you can't. It's the government speaking, not you, fool. Now shut up and eat your government cheese. This argument didn't seem to resonate with most of the Justices in oral arguments. Except Scalia. He loves government cheese. It looks like he doesn't want to mess with Texas. And he seems annoyed that this case is in front of him. The rest of the Justices, however, have different concerns about Texas's maximalist approach, such as what would stop Texas from allowing "Vote Vader" license plates but prohibiting "Vote Luke?" To which Texas replies, "Well, while we can do whatever we want to under our theory and the First Amendment, we couldn't do that, because ... something else in the Constitution?" Yes, Texas has hired a random internet commenter as their appellant counsel. Or perhaps it was Meatloaf. Texas can do anything under the law, but they won't do that.
The Sons (short for Sons of B.. yeah, you know) also had a very simple argument- Texas can't prohibit jack squat. They opened up this forum for speech, they sowed the wind, AND NOW THEY SHALL HARVEST THE WHIRLWIND! Confederate flag? Fine. Kill all the Bards? Fine. Eat My Grits Or die? Doublefine. Buy State Farm insurance? Discount Double Check! Texans love Diddy? Why the heck not? How you like deez nutz on ur chin? Well, deez nutz can be both on my chin and on the license plate! Any group, anywhere, can mess with Texas, and its license plates, as much they want to. Free speech in the hizzy!
Needless to say, this argument also bothers the Justices. Except Scalia, who is busy eating the government cheese and apparently decided against the Sons long before the case even began. Or maybe he didn't, and was messin' with Texas for government cheese. Hard to tell.
Now, these Justices might not be familiar with getting a license plate, but they have seen many from their chauffeured town cars, and they don't appreciate the idea of seeing all this free speech everywhere. What if people want to get "SCOTUS is Scrotum" license plates? So they ask both the Sons and Texas for a solution, maybe some type of limited-purpose public forum? Some compromise? Nope. Not having it. This is Rome vs. Spartacus. Empire vs. Freedom. Snarf versus Bards. Only one side will be victorious, no quarter drawn. Neither advocate will give the Justices an out. If they want one, they'll have to do it on their own (by which I mean their law clerks will have to find a way ... yeah, we know). And the Justices understand that victory for the Sons could very well mean the END OF CIVILIZATION, or, at least, the specialty license plate system- because if states have to open it up to all the crazies, maybe they needs to shut it all down. After all, a ruling for the Sons means I will be first in line to get my Hello Kitty license plate with smiling poop emojis in place of alphanumeric identifiers.* Take that, government chee... um, speech!
*Admittedly, a reboot of Smokey and the Bandit with the Hello Kitty/poop emoji would be kinda fun....
So, how did this turn out? How do you think the Justices ruled? Feel free to think about it, and how you might handle this issue, before going into the spoiler.
This was a 5-4 case.
Find the opinion here. Breyer wrote the opinion for the majority (Breyer, Thomas, Ginsburg, Sotomayor, and Kagan) holding that Texas can ban the Confederate Flag from its license plates because it is not a public forum, but government speech.
Alito wrote a dissent arguing that license plates are limited public forums, and rejecting the Confederate Flag was unconstitutional viewpoint discrimination. He was joined by Kennedy, Roberts, and Scalia.
Scalia never finished the government cheese.
Bonus fun fact- there are only two justices left from the majority opinion (Thomas, Kagan). There are two justices left from the dissent (Alito, Roberts). If the exact same case was heard today instead of 2014-15, do you think the result would be the same?
Find the opinion here. Breyer wrote the opinion for the majority (Breyer, Thomas, Ginsburg, Sotomayor, and Kagan) holding that Texas can ban the Confederate Flag from its license plates because it is not a public forum, but government speech.
Alito wrote a dissent arguing that license plates are limited public forums, and rejecting the Confederate Flag was unconstitutional viewpoint discrimination. He was joined by Kennedy, Roberts, and Scalia.
Scalia never finished the government cheese.
Bonus fun fact- there are only two justices left from the majority opinion (Thomas, Kagan). There are two justices left from the dissent (Alito, Roberts). If the exact same case was heard today instead of 2014-15, do you think the result would be the same?
So, how did you do?
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