The U.S. Supreme Court will hear oral argument March 23 in the case of Walker v. Texas Division, Sons of Confederate Veterans, which on its face raises a relatively specialized issue — having offered to print specialty license plates for motorists, may the state of Texas then, as its statutes direct, “refuse to create a new specialty license plate if the design might be offensive to any member of the public”? (emphasis added).
The lawfulness of government cooperation in speech, however, should not turn on whether the speech “might be offensive to any member of the public,” a new Cato brief argues. One reason is the potential for subjectivity and inconsistency — Texas currently approves many license plates that would offend some people, but declined to approve one including a tiny version of the Confederate battle flag. But a more fundamental reason is that offensive speech itself can be a valuable part of the marketplace of ideas and should not lose First Amendment protection simply because someone takes offense at it. (The brief takes no position on whether specialty license plates count as a “quasi-public forum” or something else, a question that might keep the Court from needing to reach the offense issue; it also notes that the case at hand does not include any of the exceptions the Court has recognized to speech freedom, such as obscenity, incitement, or “true threat.”)
Like Cato’s brief last year in the “truthiness” Ohio campaign speech case, this one falls into the new category of “funny” brief — including references to jokes and comedy sequences, dropping cites to Full House and America’s Funniest Home Videos, and including among its signers Cato fellow P.J. O’Rourke as well as the Comic Book Defense Fund and noted First Amendment advocates Nat Hentoff, Nadine Strossen, and Martin Garbus. (It also includes a number of words often considered offensive, and which seldom find a place in Supreme Court briefs.)
Ilya Shapiro, counsel of record (joined by co-counsel, and noted First Amendment lawyer, Robert Corn-Revere) writes at the Cato blog:
Not only does the right to be offensive secure the livelihood of our favorite comedians, it protects scientific and medical researchers in their quest to push the limits of human knowledge into fields once considered taboo and enables one religion’s heretic to become another’s prophet. And should a member of a third faith, or no faith at all, wish to define himself as an iconoclast by mocking, degrading, or insulting that heretic cum prophet—be it Muhammad, L. Ron Hubbard, or Mark Steyn — that too, is protected by the First Amendment.
There’s no “offensiveness” exception to the First Amendment and it would be insulting for the Supreme Court to allow Texas to tell us what’s offensive. Those who are offended shouldn’t have a veto over free expression and putative offenders should be judged in the court of public opinion.
Another summary: Ronald Collins, Concurring Opinions.