High court, license plate rules collide
Justices frown on state programs that censor individual speech
“They either need to get rid of the program or ... open up the program just to everybody else.” R. James George, Sons of Confederate Veterans lawyer
WASHINGTON State programs that allow special- interest groups to design license plates could be jeopardized based on Supreme Court justices’ complaints Monday about Texas’ denial of a plate commemorating Confederate veterans.
A majority of justices appeared to reject the state’s contention that hundreds of license plates endorsing everything from blood donors to Mighty Fine Burgers represent government speech and can therefore be censored at the government’s discretion.
But if the Confederate flag must be allowed, they reasoned, perhaps swastikas and racial epithets do, too. That realization appeared to lead some justices to conclude that specialty- plate programs used by most states to raise money may be the problem.
“They’re only doing this to get the money,” Chief Justice John Roberts said of Texas’ specialty- plate program, which charges groups that seek the plates. The solution to blocking potentially offensive messages without infringing on free speech rights, he said, might be that “they don’t have to get in the business of selling space on their license plates to begin with.”
The case was filed by the Sons of Confederate Veterans, which has specialty plates in nine other states but was blocked by Texas motor vehicles after some residents protested that the Confederate flag symbolizes slavery. It is similar to lawsuits in other states, many of which focus on programs that allow the anti- abortion “Choose Life” license plates.
All 50 states have specialty- plate programs. At least half of them offer more than 100 such plates; Texas offers more than 400. While some are chosen by the state Legislature or the Department of Motor Vehicles Board, others are proposed by groups of citizens or organizations. Rarely are they rejected.
The central argument is over who is talking — the government or the motorist. Texas Solicitor General Scott Keller said the government is talking because it “etches its name onto each license plate.” For that reason, he said, it can pick and choose which plates to approve.
A majority of justices appeared to reject that argument, given how many license plates the state has approved. Justice Elena Kagan said the state effectively relinquished control of the program to paying customers, making it a “people’s license plate.” Justice Stephen Breyer said because state officials claim they can reject any plate for any reason, “Then I think they lose.”
Noting states pad their budgets with income from the specialty- plate programs, Justice Samuel Alito said, “That is really all this is about, isn’t it?”
As soon as Sons of Confederate Veterans lawyer R. James George stood up, things began to go south for his side. If Texas must approve the organization’s license plate featuring a Confederate flag, Justice Ruth Bader Ginsburg said, how about a swastika? George said the state would have to approve that, too.
“Suppose somebody else says, ‘ I want to have jihad on my license plate?’ ” Ginsburg said, a reference to the flip side of state plates urging “Fight Terrorism.”
Apparently mishearing her, George responded, “Vegan?” “Jihad,” Ginsburg repeated. That, too, would be OK, the lawyer said.
“And ‘ Bong hits for Jesus?’ ” she said, a reference to a 2007 Supreme Court case in which the justices ruled schools could suppress speech promoting drug use. That too, George replied.
“You’re really arguing for the abolition of Texas specialty plates,” Justice Antonin Scalia, who had been Texas’ only vocal supporter, said.
“They either need to get rid of the program or they need to open up the program just to everybody else,” George said.