Puzzling case

[Mark Tushnet]

I'm not sure that the license plate case "is the Rosenberger/Rust
distinction."  In Rosenberger, there was nothing associated with the
physical appearance of the newspaper that indicated that it was produced
with government money, whereas the license plate clearly does come from
the government.  There's as much endorsement, I would think, as in the
adopt-a-highway cases, on which the 8th Circuit did rely -- but, those
cases are hard cases.  (It may be a small point, but the majority in
Rosenberger did rely in part on the fact that the money actually flowed
from the student activity fund to the printer, not to the Awake group
itself.)  And, on the "this is the driver's view" point, recall the
recent discussion on this list of Wooley v. Maynard, where the
(non-personalized part of the) license plate clearly *is* the
government's message.  Why should the First Amendment analysis turn on
how carefully viewers differentiate between the endorsement in the
non-personalized part and the (supposed) non-endorsement in the
personalized part?

In a related vein, I wonder how much weight should be placed on the
"social meaning" theory implicit in Eugene's analysis:  If (as a matter
of empirical social fact -- proven by what means?), people *think*
something comes from the government, we analyze it one way, but if they
think it comes from an individual, we analyze it in a strikingly
different way.  That, it seems to me, is precisely what divides the
Court in Capitol Square v. Pinette.  Why should the majority's
intuitions about what people think about unaccompanied and undisclaimed
signs, etc., prevail over the dissenters, if what's involved are
fundamentally empirical claims?  I would think that this sort of
analysis is in deep tension with a preference for rule-like structures
of First Amendment analysis.
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