The United States Supreme Court began grappling on Monday with a thorny free speech issue: whether a state government can use its authority over specialty license plates to endorse certain messages while censoring others.
The issue arises in a lawsuit filed by the Texas Division of the Sons of Confederate Veterans, who complain that Texas refused to produce and circulate a proposed Sons of Confederate Veterans license plate that prominently featured the Confederate battle flag.
A Texas board rejected the license plate because it said many members of the public find the Confederate battle flag offensive.
Only a handful of proposed specialty license plates have ever rejected by Texas.
The state offers more than 400 specialty plates featuring an eclectic range of messages. They include “God Bless Texas,” “Vietnam Veteran,” “I’d Rather Be Golfing,” and “Mighty Fine Burgers,” a commercial plug for an Austin burger establishment of high repute.
The Sons of Confederate Veterans (SCV) insist that their proposed license plate is not meant to spread fear or hatred. They view the Confederate flag as a symbol of sacrifice, independence, and Southern heritage, and they argue that the state should not be permitted to muzzle that message.
The case is potentially important because it forces the justices to explore a murky First Amendment middle ground between government-permitted censorship of objectionable speech in some limited cases and guarantees of free speech in most cases even when that speech is offensive.
The so-called government speech doctrine allows the government to engage in viewpoint discrimination in its own speech, but it does not allow such discrimination against private speech. Thus, a central question in the case is who is doing the speaking in the production and display of specialty license plates?
Texas approves and issues a specialty license plate containing a particular message. Next, an individual driver pays extra for the plate, attaches it to her vehicle, and displays the message while driving in public.
Is the resulting communication the speech of the government or the speech of the individual driver?
Texas Solicitor General Scott Keller told the justices that any resulting communication was a form of government speech since Texas puts its name on every license plate it prints and issues.
“Texas does not have to associate itself with messages that it doesn’t want to and finds offensive,” Mr. Keller said.
R. James George, an Austin lawyer representing the SCV, disagreed. He said attaching a license plate to one’s car and displaying its message while driving is private speech, not government speech.
“The person who puts the plates on their car is the one that communicates the message,” Mr. George said. “The other people are just giving approval.”
Justice Sonia Sotomayor said she saw merit in both arguments. She said the act of issuing license plates and allowing private citizens to choose to display them on their vehicles appears to be a hybrid of both private and government speech.
“I actually do think this is hybrid speech,” Justice Sotomayor said. “It’s both government and the individual speaking at the same time.”
But she then questioned why an individual should be permitted to force a controversial message on a license plate issued by a state – thus implying endorsement of a potentially controversial message.
George replied that by issuing so many license plates Texas had created a public forum for the expression of ideas. Once such a forum is in place, the state may not pick and choose who can participate based on viewpoint.
Both lawyers warned of potential chaos should the high court side with the opposing side.
If the justices agree with Texas and authorize the state to bar any license plates that it considers offensive, that confers upon the government broad discretion to censor the speech of others.
“Do you want us to hold that because this is government speech the government can engage in viewpoint discrimination,” Justice Anthony Kennedy asked.
“That’s right, Justice Kennedy,” Solicitor General Keller replied.
On the other hand, if the court agrees that displaying a license plate is individual speech and that Texas is not authorized to engage in viewpoint discrimination, such a decision might require Texas to begin issuing bizarre and/or highly offensive license plates under a broad free speech mandate.
Keller warned that currently available Texas specialty plates proclaiming “Fight Terrorism” and “World War II Veterans” might create a situation forcing the state to also issue specialty license plates with competing messages promoting Al Qaeda or the Nazis.
George did not dispute that possibility.
What if someone wanted to display a swastika on a license plate, Justice Ruth Bader Ginsburg asked.
“I don’t believe the state can discriminate against the people who want to have that design,” George replied.
Or Jihad, Justice Ginsburg asked.
“Yes,” George said.
Justice Antonin Scalia commented that George’s free speech standard would effectively end the Texas specialty license plate program.
“Your position is that if you prevail, a license plate can have a racial slur,” Justice Kennedy asked a few minutes later.
“Yes,” the lawyer said. “I don’t think there is any consistent decision otherwise.”
Solicitor General Keller argued in response that Texas sought only benevolent control over the messages on license plates.
“Texas wants to prevent offensiveness and vulgar speech and wants to prevent confusion and misrepresentation, promote safety, it wants to celebrate the diverse interests that the state has,” he said.
Keller acknowledged that the specialty plate program makes money, but he said his argument wasn’t about money.
“This is about the State of Texas not wanting to place its stamp of approval on certain messages,” he said. “And a speaker is not entitled to the imprimatur of the State of Texas on whatever message that it wishes to put on a license plate.”
The case is Walker v. Texas Division, Sons of Confederate Veterans (14-144). A decision is expected by late June.