Supreme Court justices on Monday struggled with how far license plates might go if they rule the Sons of Confederate Veterans can get Texas plates imprinted with the Confederate flag.
Pretty far, the Sons of Confederate Veterans’ attorney conceded, in an exchange that suggested why the group might eventually lose its challenge to Texas’ denial of its controversial plate request.
“Your position is that, if you prevail, a license plate can have a racial slur?” asked Justice Anthony Kennedy, a frequent swing vote. “That’s your position?”
“Yes,” replied R. James George Jr., the Austin-based attorney representing the Sons of Confederate Veterans, adding that “speech that we hate is something we should be proud of protecting.”
Justice Ruth Bader Ginsburg pressed George with similar examples, asking about specialty license plates imprinted with a swastika, an encouragement to commit jihad or the phrases “Make Pot Legal” or “Bong Hits for Jesus.” In each case, George said Texas should be obliged to print the plate if requested to.
“I don’t think the government can discriminate against content,” George said.
Texas officials, though, say they’re free to regulate the speech that’s conveyed through a government-issued medium.
“The government is entitled to select the messages that it wishes to propagate,” Texas Solicitor General Scott A. Keller said “Texas does not have to associate itself with messages that it doesn’t want to and finds offensive.”
The Texas specialty license plate program now includes more than 400 permitted messages, Keller reported Monday. Some messages are authorized by the state Legislature and others are applied for through the Texas Department of Transportation.
Approved messages range from “God Bless Texas” and “Fight Terrorism,” to “Rather Be Golfing” and “Stop Child Abuse.” Part of the $30 plate fee is directed toward designated causes. From the sale of each “Dallas Cowboys” license plate, for instance, $22 supports maintenance of the team’s AT&T Stadium.
“Texas will put its name on anything,” said Chief Justice John Roberts Jr. “The only thing that unifies it is is they...get money from it.”
On rare occasions, though, Texas has rejected proposed specialty plates.
In 2009, the Sons of Confederate Veterans requested a commemorative license plate. The proposed plate depicted a Confederate battle flag framed by the words “Sons of Confederate Veterans 1896.” A faint Confederate flag also appeared in the background.
A complicated process then ensued, eventually leading to the Texas Department of Motor Vehicles Board unanimously voting in 2011 to reject the proposed license plate on the grounds that it was offensive. That standard of regulating a speech forum to avoid giving offense worried several justices across the ideological divide Monday, who noted the logic goes beyond license plates.
“It does create the possibility that in this new world, with all these new kinds of expressive (forums), the state will have much greater control of its citizens’ speech than we’ve typically been comfortable with,” Justice Elena Kagan noted.
Keller acknowledged the concern, tactically conceding that “a narrow ruling in this case would possibly be a beneficial way to go.”
In the Texas case heard Monday, the key question could turn on whether the license plate message is considered the private speech of the driver or the official speech of the government that issued the plate and whose name is upon it. If it’s private speech, the First Amendment might compel the state to accept it. If it’s government speech, the state enjoys more control.
“Do you want us to hold that because it’s government speech, the government can engage in viewpoint discrimination?” Kennedy asked the Texas solicitor general.
“That’s right,” Keller said.
Washington and Missouri joined nine other states in a brief urging the court to side with Texas’s effort to regulate specialty license plate messages. A separate challenge to North Carolina’s “Choose Life” license plates is currently on hold at the Supreme Court.
Justice Clarence Thomas, in keeping with his customary behavior, was the only one of the nine justices not to speak or ask questions during the hour-long oral argument. A decision is expected by the end of June.
Comments