An amicus brief is a learned treatise submitted by an amicus curiae (Latin for “friend of the court”), someone who is not a party to a case who offers information that bears on the case but that has not been solicited by any of the parties to assist a court. The amicus brief is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case.
Typically, amici are serious—and dull—documents. You won’t find many that include references to “Full House (ABC 1987-1995),” Vladimir Putin, Torquemada, “Gilmore Girls (Warner Bros. 2000-2007),” Chris Rock, Salman Rushdie, and “The Avengers (Marvel Studios 2012).” And you’re likely to find even fewer that recommend the state of Texas be declared “unconstitutional.” But all of that was included in a brief submitted by humorist P.J. O’Rourke (and friends) in a case heard yesterday by the US Supreme Court.
The Sons of Confederate Veterans (SCV), argued before the court its free-speech rights were violated when the Texas Department of Motor Vehicles rejected its proposal for a specialty license plate featuring the Confederate flag. In their amicus brief supporting SCV, O’Rourke, et al argued that the state of Texas had “empowered the State Department of Motor Vehicles to prevent people from being offended by license plates.”
[T]he DMV seems to pursue its mission—the righteous task of ensuring that not even one motorist has to endure half a second of microaggression before he reaches down to change the radio—in a half-hearted way. After all, take a look at
the plate designs it has let slip by its censorious filter. Texas DMV, Specialty License Plates, http://txdmv.gov/motorists/license-plates/specialtylicense-plates (last visited Feb. 16, 2015).
The “Boy Scouts” specialty plate no doubt ruffles the feathers of those who consider that group to be a retrograde anti-gay menace (and also those who cannot abide children in uniforms). The “Choose Life” plate similarly raises the hackles of those who think that its message subtly slanders women who might choose to have an abortion. What about “Come and Take It” (accompanied by a picture of a cannon) or “Desert Storm” or “Fight Terrorism”? Forget viewpoint discrimination; these sorts of messages would insult pacifists and those who disagree with American foreign policy even if “Turn the Other Cheek” or “Al Qaeda Forever” tags were available.
“Mighty Fine Burger” and “Dr. Pepper” surely offend Michael Bloomberg’s acolytes, not to mention fans of McDonalds and Pepsi. Many Apache, Comanche, or Kiowa would take offense at a good ol’ boy driving around with a “Native Texan” plate. And would not an animal-rights supporter who volunteers for PETA have a (soy) beef with the “Texas Trophy Hunters Association” plate. Finally, any true Texan would find the “University of Oklahoma” plate to be beyond the pale of any standard of human decency.
Such is the problem with trying to eradicate offensive speech: everything offends someone.