Swastikas on Texas license plates? Yes, the lawyer answered. Messages promoting jihad? Yes. “Make Pot Legal?” Yes.
Justice Anthony M. Kennedy kept looking for an outer limit. “Your position is that if you prevail, a license plate can have a racial slur?” Kennedy asked the attorney for the Sons of Confederate Veterans, which was at the Supreme Court on Monday because Texas wants to keep the group’s Confederate-flag logo off the state’s specialized license plates.
“Yes,” replied Austin lawyer R. James George Jr. “I don’t think there’s any consistent decision otherwise.”
Once a state decides to make extra cash by allowing groups to put messages on license plates — creating a new kind of public forum for speech, George said — it can’t reject those it doesn’t like without violating the free-speech rights the First Amendment protects.
The court spent an hour — with little success, it seemed — trying to find a balance.
Texas Solicitor General Scott A. Keller said it should not be hard. The First Amendment protects against government efforts to curtail individual speech, Keller noted, but doesn’t apply to the government’s speech.
“The state of Texas etches its name onto each license plate and Texas law gives the state sole control and final approval authority over everything that appears on a license plate,” Keller said. “The First Amendment does not mean that a motorist can compel any government to place its imprimatur on the Confederate battle flag on its license plate.”
But only Justice Antonin Scalia seemed convinced by Keller’s argument. Other justices said that not all of the nearly 450 specialized license plates authorized by Texas — it rarely turns down a request — can be the government’s speech.
A motorist can purchase a license plate endorsing Dr Pepper and Mighty Fine Burgers, an Austin-based hamburger joint. “There’s no clear, identifiable policy . . . that the state is articulating,” said Chief Justice John G. Roberts Jr. “I mean, they’re only doing this to get the money.”
Justice Elena Kagan questioned Keller’s assertion that the state is free to adopt some messages and reject others. “I mean, suppose somebody submitted a license plate to Texas that said ‘Vote Republican’ and Texas said, yes, that’s fine,” Kagan said. “And then the next person submitted a license plate to Texas and it said ‘Vote Democratic’ and Texas said no, we’re not going to approve that one.”
Kagan said that there was a “new world” of “expressive fora” being created. If the state is going to be weeding out what it finds offensive, “the state will have a much greater control over its citizens’ speech than we’ve typically been comfortable with.”
Texas, like many other states, has created a new revenue stream with the specialized plates, which are different from vanity plates that might have an individual’s name. In Texas, the legislature can propose a plate honoring a group or athletic team and offer those for sale.
The other way is for a group itself to propose the plate. The Sons of Confederate Veterans, whose logo features the Confederate flag, has gone that route in several states, including Maryland and Virginia, which are under court order to offer the plates.
A Texas commission first seemed to approve the group’s request, then rejected it after receiving tens of thousands of comments about the design, most of them negative. Such a rejection was extremely rare.
A panel of the U.S. Court of Appeals for the 5th Circuit ruled for the organization. The judges split 2 to 1 that the license plates represented the speech of the motorist who bought and displayed them, not Texas.
The group’s attorney told the Supreme Court that was the correct decision.
“The communication of the information on the license plates actually is controlled entirely by the people who pick the plates,” George said.
But Justice Sonia Sotomayor said she disagreed. “It’s both government and the individual speaking at the same time,” she said. The court has previously ruled that a motorist does not have to display the state’s motto if he finds it offensive. “So why isn’t the reverse true for the government?”
Justice Ruth Bader Ginsburg is one of those who pushed George about what, if anything, could be considered too offensive — although there were some communication problems between the Brooklyn-born justice and drawling Texan.
“Suppose somebody else says, ‘I want to have “Jihad”on my license plate,’ ” Ginsburg said. “That’s okay, too?”
“Vegan?” George asked quizzically.
“Jihad,” Ginsburg repeated.
And when George said the state could boldly state that it disagreed with the presented message, Sotomayor asked, “Where is that going to fit on the license plate?”
Kagan wondered whether it would make a difference if a legislature approved all of the specialized plates, rather than inviting groups to apply for their own. George said that might seem more like it was government speech.
Roberts wondered if a standard might be higher than simply finding something offensive. “I think someone driving in Texas with a swastika is, you know, likely to be — to trigger public violence,” he said.
But Roberts seemed more concerned about Keller’s argument.
When the Texas solicitor general said Texas “should not have to allow speech about al-Qaeda or the Nazi Party simply because it offers a license plate propagating the message ‘Fight Terrorism,’ ” the chief justice said there was an easy answer. “Which is, they don’t have to get in the business of selling space on their license plates to begin with,” he said.
The case is Walker v. Texas Division, Sons of Confederate Veterans, Inc.