Who would have thought license plates could be so controversial? A lawsuit currently being reviewed by the United States Supreme Court concerns Texas license plates promoting the Confederacy, but the free speech ramifications and issues in the case make it about much more.
The high court began looking at the difficult free speech issue today. At issue is whether states can use their authority over license plates to censor some messages on specialty plates while allowing others.
The specific case being argued involves a lawsuit filed by the Texas Sons of Confederate Veterans against the state. A Texas Department of Motor Vehicles board rejected their proposed Sons of Confederate Veterans (SCV) license plate that would have prominently featured the Confederate battle flag. The board maintained that “a significant portion of the public” would find the image of the Confederate flag offensive and a reminder of slavery.
The SCV insist that their proposed license plate was intended to honor Southern heritage and sacrifice 150 years ago. They say they do not want to spread fear or hatred. Similar Confederate-inspired license plates were approved and are available in nine other Southern states.
The group maintains that the state should not be allowed to censor their message or image, especially since they have generally approved just about everything presented to them. In fact, Texans can choose from more than 400 specialty plates featuring messages ranging from patriotic to sporting to flat out commercial ads. They include a commercial plug for an Austin burger establishment of high repute and one promoting Dr Pepper.
After being rejected twice, most license proposals would die. All 50 states say they do veto rude or abusive slogans. However, the SCV claimed that their Constitutional rights – specifically of free speech – were being violated.
The SCV took the matter to the U.S. Court of Appeals for the 5th Circuit, where they argued successfully that the First Amendment protected their design. This set the stage for this week’s Supreme Court hearings that could be precedent setting.
The First Amendment grants the right to free speech, which is something Americans regularly cite as a Constitutional right, particularly the right to criticize or advocate for ideas. But free speech does not mean all speech should be allowed. The courts have recognized situations where free speech should be curtailed (such as shouting “Fire” in a crowded venue starting a stampede) and child pornography. The Supreme Court has allowed laws to be enacted that put reasonable restrictions on speech.
The case is forcing the justices to explore the murky First Amendment middle ground between censorship of objectionable speech and guarantees of free speech, even when that speech is offensive to many. A key issue is whether the government can discriminate in messages it produces. Is the free speech issue one of allowing the plates to be printed or allowing people to put whatever message they want on their vehicle.
Scott Keller, Texas’ Solicitor General, told the Supreme Court justices that Texas has the right to reject messages since they put their name on every license plate they issue. “Texas does not have to associate itself with messages that it doesn’t want to and finds offensive,” Keller pointed out.
An Austin lawyer, R. James George, Jr., representing the SCV disagreed. “The person who puts the plates on their car is the one that communicates the message,” he maintained. Once a state decides to allowing groups to put messages on license plates — creating a new kind of public forum for speech— it cannot reject those it does not like without violating the First Amendment, George noted.
The issue is complex. If the justices side with Texas and allow states to bar messages they find offensive, the precedent is set for government board to censor messages and opposing viewpoints. Conversely, if the court agrees that a license plate is individual speech and that Texas cannot discriminate, highly offensive plates, such as ones with Swastikas or denigrating messages could be not too far down the road.
Keller warned that the state could be forced to issue plates promoting Nazis or Al Qaeda because they currently have Texas specialty plates with messages such as “Fight Terrorism” and “World War II Veterans.” George agreed that the state should not be able to discriminate against people who want to promote Jihad on their license plate.
Justice Antonin Scalia noted that such “free speech” would probably end the Texas specialty license plate program, and other states would probably follow suit. It is easy to see how other free speech issues could also arise from this lawsuit. The Supreme Court is expected to issue a decision on the case about free speech on license plates (and potentially more) by the end of June.
By Dyanne Weiss