Supreme Court Dispatches

Lost Cause

Do devotees of the Confederacy have a First Amendment right to put the rebel battle flag on their license plates?

The design of a proposed Sons of Confederate Veterans Texas state license plate
The design of a proposed Sons of Confederate Veterans Texas state license plate.

Illustration by the Texas Department of Motor Vehicles via Reuters

There are few things Americans love more than free speech and automobiles. There are few things state legislatures love more than money. Given these facts, Texas’ customized license plate program—whereby citizens can create license plate designs and, for a hefty fee, ask the state to produce them—sounds like a pretty great idea. On Monday, however, Texas was forced to confront a small problem with its program. A few years ago, the Sons of Confederate Veterans proposed a plate sporting the rebel battle flag. Texas refused to print it. And on Monday, it defended itself against a group of Confederate devotees convinced that they have a First Amendment right to speak through the government registration on their cars.

This case is packed with ironies—not least of which is the fact that a state that officially celebrates Confederate Heroes Day refuses to print a license plate commemorating Dixie. But when Texas Solicitor General Scott A. Keller approaches the bench on Monday morning, he doesn’t seem particularly bemused. Nor does he seem thrown by the fact that last time he appeared before the justices, he defended Texas’ right to fund housing discrimination against minorities, and he is now arguing that Texas doesn’t want to offend black people. Keller intends to convince the justices that license plates are pure government speech, which, the court has held, merits no First Amendment protection because it involves no private, individualized expression. Thus, the state can approve or reject any license plate it wants.

But there’s a glaring flaw in Keller’s argument. By allowing individuals to put their own messages on license plates, Texas would seem to have transformed plates from a piece of metal to a public forum. And it’s First Amendment law that the government can’t discriminate among viewpoints in a public forum, allowing the expression of some opinions while censoring others. In other words, Texas could have refused to let individuals design their own license plates. But once it allowed customized plates, it lost the ability to censor who gets to express what messages on the back of their cars.

Predictably, Keller’s argument that license plates aren’t free speech at all instantly irritates Justice Anthony Kennedy, a First Amendment purist. Kennedy rephrases Keller’s position into something more sinister: “When it’s government speech, the government can engage in viewpoint discrimination.” Justice Elena Kagan picks up on this line of argument and asks whether Texas could approve a plate that says “Vote Republican” but reject one that says “Vote Democrat.” Keller thinks another clause of the Constitution might forbid that but isn’t sure which one. Maybe the equal protection clause? Kennedy elbows in again: Does the government really get to engage in viewpoint discrimination when it has helped to create a new public forum, like license plates?

Keller tries to dart away from the interrogation, which is wise. (Generally, when a justice asks the same question twice, it means he didn’t like your answer the first time.) License plates, Keller insists, are just government speech; they aren’t a traditional public forum, like parks, where individuals get to express their views.

“Why aren’t they traditional?” Kennedy demands. “People don’t go to parks any more. They drive.” Kennedy’s park slander raises one of his very Kennedy-esque points (which, on this perpetually divided court, are often the only points that matter.) In Citizens United v. Federal Election Commission, the swing justice famously wrote that Americans “must be free to use new forms, and new forums, for the expression of ideas.” With its customized license plate program, Texas clearly created a new forum for expression. Now it wants to retain the power to censor that expression.

Which is totally fine by Justice Antonin Scalia, Monday’s least valuable player (or technically the second least valuable, after the always-silent Justice Clarence Thomas.) Throughout the morning, Scalia looks simultaneously stultified and peeved, interrupting Keller only to give him a verbal pat on the head. Can Texas, he asks, refuse to print a vanity plate that reads “HOTSTUFF”? Keller says yes. Then Texas controls the message on all of its plates, Scalia says. Case closed.

But aside from revealing himself to be a closet Donna Summer fan, Scalia doesn’t add much to Monday’s argument. Surprisingly, it’s Justice Stephen Breyer who emerges as the day’s MVP, forgoing his usual discursive maundering to zero in on one key question. License plates, Breyer explains, are obviously neither pure government speech nor pure private speech. What Texas must do to win, then, is explain why it has an interest in keeping certain messages off its plates, and what standard it uses to decide which messages get nixed. When Keller hedges and Scalia jumps in to help him, Breyer throws his hands up in frustration. Kennedy intervenes to reiterate Breyer’s question, which a nettled Breyer then repeats. It’s an impressively focused performance from a justice who once asked a question about a pet oyster

What Breyer wants to get at—and what Keller wants to avoid—is the standard Texas uses to judge customized license plates, which is, apparently, their “offensiveness.” The court has held over and over again that mere offensiveness can’t justify censorship. Breyer wants Keller to explain exactly how Texas gauges offensiveness when reviewing proposed plates. But before Breyer can get a firm answer, Keller sits down—and the day takes a turn for the weird as Roger James George Jr. approaches the bench to argue for the Sons of Confederate Veterans.

George is sluggish, bumbling, and repetitive, his Southern drawl slowing the clip of the morning to a crawl. On several occasions, he sounds like he’s giving his order to an especially dim-witted Arby’s cashier. George wants to bind Texas’ hands entirely, withdrawing the state’s ability to censor even the most odious license plates. Cue the parade of horribles. What about a swastika, says Justice Ruth Bader Ginsburg. Absolutely—print the plate. What about the word jihad? Sure—print it. (George initially thinks Ginsburg says “vegan,” which may be just as offensive as “jihad” in Texas.)

How about “Bong Hits 4 Jesus,” Ginsburg asks, prompting a knowing laugh from the courtroom. No question, George says. Scalia grouses: What you’re really arguing for, he notes, is an abolition of customized plates. A program that allows swastika plates, after all, is a program that won’t exist for much longer.

George sticks to his guns, clinging to his single jejune argument to the point of monotony. So the justices start to do his job for him, imagining what a First Amendment compromise might look like here. Justice Sonia Sotomayor brings up Wooley v. Maynard, in which the court held that New Hampshire can’t make Jehovah’s Witnesses put “Live Free or Die” on their license plates. If the government can’t force citizens to convey a certain message on a plate, Sotomayor wonders, why can citizens force the government convey a certain message? Shouldn’t Wooley, at the very least, protect the government from promoting messages it utterly despises?

But George stands his ground, holding that Texas must approve even a license plate featuring a vile racial slur. If the state is concerned, he suggests, it can add a message on the plate explaining that it doesn’t endorse the message. Sotomayor asks where that disclaimer could possibly fit. Justice Samuel Alito asks bluntly whether this program is “all about money.” George says yes. There’s a moment of stunned silence as Alito leans back and smiles. Then the courtroom bursts into laughter. George does not appear to get the joke.

At the end of the hour, every justice except Scalia and Thomas seemed eager to find a middle ground between Keller and George’s dueling hard lines. The offensiveness standard is disturbingly vague, granting the government too much power to silence any message it doesn’t like. But without some standard, states will be powerless to keep the most horrifying epithets off their official plates. Plainly, seven members of the court aren’t convinced that Texas should be able to bar Confederate flag license plates while allowing nearly 500 others designs, including some that oppose abortion and encourage war. The trick, apparently, will be crafting a rule that keeps the swastika out but lets in the stars and bars. Please the Confederates, disappoint the neo-Nazis: When it comes to the First Amendment, you can’t win them all.