The Supreme Court appeared conflicted on Monday over how to resolve a contentious free speech case out of Texas that challenges whether the state was within its bounds in rejecting specialty license plates that would display a Confederate flag.
The nation’s top court heard oral arguments in a case that stems from a lawsuit issued by the Texas chapter of the Sons of Confederate Veterans, who contend that their First Amendment rights were violated.
Texas allows specialty license plates featuring over 400 different messages, including “Fight Terrorism” and “Choose Life,” but the office in charge of permits denied the request to have the flag of the Confederacy be a part of that mix.
Nine other states allow drivers to display plates with the Confederate flag, which remains an image of Southern heritage to its defenders but a racially charged symbol of repression on par with a Nazi swastika to its many detractors.
Former Georgia Congressman Ben Jones, a spokesperson for the veterans group who also played the character Cooter Davenport on the popular 1980s TV show "The Dukes of Hazzard,” told the New York Times that the organization was a “heritage organization … it’s not a bunch of racists,” and that the plate reflected that history.
Lawyer R. James George Jr., speaking on behalf of the group, told the court on Monday: "I just don't think the government can discriminate based on content.”
But Texas Solicitor General Scott Keller said the state makes the plates and owns them. "Texas has its name on every license plate," Keller said. Car owners remain free to express any message they wish by attaching bumper stickers or painting their cars, he said.
If the issue at hand was the relatively simpler constitutional issue of a private citizen’s desire to display a Confederate flag in a manner of their choosing, such as on a front porch, the group would be on much more comfortable free speech ground. But in this case, the court has to decide whether an individual’s first amendment protections extend to a forum that is produced by the government.
In arguments, the justices seemed uncomfortable with positions advanced both by the state in defense of its actions and the Sons of Confederate Veterans. Lyle Denniston, a Supreme Court reporter with SCOTUS blog, said that the complex and competing issues and claims in the case led to a “strange hearing … on when the First Amendment puts curbs on government regulation of expression, and how tight those curbs can be.”
If the court finds the state must permit the Confederate flag on license plates, several justices wanted to know what else could be permitted as well.
"So they could have the swastika. And suppose somebody else says I want to have 'Jihad' on my license plate. That's okay, too?” asked Justice Ruth Bader Ginsburg. “And 'Bong hits for Jesus?'" Ginsburg said, reaching back to an earlier case involving students' speech rights.
George acknowledged that any such claim would have to be allowed were his side to win, but he told the justices that "speech that we hate is something that we should be proud of protecting."
George said states concerned about seeming to endorse controversial messages could print on the plates "This is not the state's speech" in large orange lettering.
"Where is that going to fit on the license plate?" Justice Sonia Sotomayor asked.
The result of ruling in favor of the group wanting the plates, Justice Anthony Kennedy said, probably would end the state's program of allowing many specialized license plates. "If you prevail, it's going to prevent a lot of Texans from conveying a message," Kennedy said to George.
But skepticism of Texas’s position was common during the hearing.
Keller urged the court not to force Texas to recognize offensive speech. "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,'" Keller said.
But Roberts was not persuaded by that argument. "If you don't want to have the Al-Qaeda license plate, don't get into the business of allowing people to buy ... the space to put on whatever they want to say," the chief justice said.
Roberts and Justice Samuel Alito said the sheer number of messages and their wide range show that the state's only interest is money.
"They're only doing this to get the money," Roberts said. "Texas will put its name on anything.” Robert noted that Texas had approved a plate proposed by Austin-based restaurant chain Mighty Fine Burgers.
Specialty license plates are big business in Texas. They brought in $17.6 million in Texas in 2014.
The First Amendment dispute has brought together some unlikely allies, including the American Civil Liberties Union, anti-abortion groups, Americans United for Separation of Church and State, civil libertarian Nat Hentoff and conservative satirist P.J. O'Rourke.
"In a free society, offensive speech should not just be tolerated, its regular presence should be celebrated as a symbol of democratic health — however odorous the products of a democracy may be," Hentoff, O'Rourke and others said in a brief backing the group.
The case could be important for how the Supreme Court determines whether the speech at issue belongs to private individuals or the government. A decision in Walker v. Sons of Confederate Veterans is expected by late June.
Wire services. With additional reporting by Tom Kutsch.