The prosaic purpose of a license plate is to identify the vehicle and the state in which it was registered. But some states offer — for an extra fee — specialty license plates that allow the owner of a car or truck to incorporate his or her favorite cause in the design of the plate, with proceeds sometimes going to a charity associated with that cause.
Many of these causes are uncontroversial, but not all. On Monday, the Supreme Court heard arguments about the state of Texas' refusal to issue a specialty plate to the Sons of Confederate Veterans because it would feature the group's logo, which includes the Confederate Battle Flag. Many people see the flag as an emblem of white supremacy, but the veterans group sees it as a symbol of the Confederate soldiers' sacrifice and argues that its 1st Amendment rights were violated.
This is a complicated case, and the outcome is likely to turn on whether the court treats specialty license plates as private speech by the owner of the vehicle, as a federal appeals court concluded, or public speech by the government that issues the plates, as Texas argues. Our view is that once a state decides to turn license plates into metallic bumper stickers reflecting various drivers' views about everything from abortion to the environment, it can't pick and choose which viewpoints will be allowed.
But we also acknowledge that if the court decides that specialty license plates are “public forums” in which the government may not discriminate, there could be a proliferation of ugly messages and symbols on them (including, Justice Ruth Bader Ginsburg suggested, a swastika). But the same is true when the government opens a public park or a public meeting to a variety of speakers.
At Monday's argument, the lawyer for Texas warned that if specialty license plates were treated as a public forum, the state would have to permit pro-Nazi or pro-Al Qaeda messages simply because it offered a license plate that said “Fight Terrorism.” To which Chief Justice John G. Roberts Jr. replied, “Well, but there is an easy answer to that, which is they don't have to get in the business of selling space on their license plates to begin with.”
That's not a statement about constitutional law, but it does point to a common-sense solution if states are worried that ugly or offensive messages will find their way onto license plates. If the court rules for the Sons of Confederate Veterans, states could go back to basics and limit the content of license plates to letters, numbers and maybe a noncontroversial slogan or image chosen by the state. If motorists wanted to make a political statement, they'd have to buy a bumper sticker.