Motorists have the right to put their favorite bumper sticker on their car, but do they have a free-speech right to a special state license plate with a Confederate battle flag or a message about abortion?
That was the question before the U.S. Supreme Court on Monday in a case from Texas.
During an oral argument, the justices appeared to lean in favor of giving states the power to reject certain messages or symbols. They said they were wary of giving hate groups a right to ask for a highly controversial symbol, such as a swastika, or a message that supports hatred or violence.
“Your position is that if you prevail, a license plate can have a racial slur. That’s your position?” Justice Anthony M. Kennedy asked a lawyer representing the Texas Sons of Confederate Veterans.
“Yes. I don’t think there’s any consistent position otherwise,” said R. James George Jr., a lawyer from Austin, adding that the 1st Amendment does not allow the government to censor even “offensive messages.”
At issue is whether a state’s specialty license plates are governed by the free-speech principles of the 1st Amendment.
If free speech is the rule, then the state may not reject requests for plates, even those with offensive or highly controversial messages. At one point, Justice Antonin Scalia asked whether a motorist could request a “dirty word” for his license plate.
Most of the justices appeared to agree with the Texas state attorney, who argued that specialty license plates represented the words and views of the state, not the individual motorist.
“Messages on Texas license plates are government speech,” said Scott Keller, the Texas solicitor general. “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.”
He argued that although motorists had a right to put their favorite bumper sticker on their cars, they did not have a free-speech right to obtain a specialty license plate featuring a Confederate battle flag or a message about abortion.
Most states offer specialty license plates for a fee, and permit groups to propose a plate that promotes their messages.
Most are not controversial. Texas offers plates that say, “Keep Texas Beautiful” or “Mothers Against Drunk Driving.”
But when the Sons of Confederate Veterans requested a special plate featuring a Confederate battle flag, a state board refused. It said the message would provoke controversy and was seen by some as an “expression of hate.”
The group sued, claiming a violation of its 1st Amendment rights. It won in the U.S. 5th Circuit Court of Appeals, which said once the state offered plates designed by private groups, it could not discriminate against their messages.
The same issue has arisen in other states. In a separate case, another appeals court faulted North Carolina for offering an antiabortion “Choose Life” plate, while refusing to permit an abortion rights message like “Respect Choice.”
The debate before the high court focused on whether the specialty license plates speak for the state or for the driver.
The justices struggled with the issue because it is a “hybrid,” as several noted. Although the state provides the plates, individual drivers can choose from among 400 specialty plates.
Justice Elena Kagan asked whether Texas could offer a plate that said “Vote Republican” and refuse to issue one that said “Vote Democratic.”
The Texas state attorney said that would be unconstitutional and a denial of equal treatment under the law.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. indicated they saw merit in the challenge to Texas’ policy.
“They’re only doing this to get the money,” Roberts said, referring to states.
The court is expected to rule by late June in Walker vs. Sons of Confederate Veterans.