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March 23 — Supporters of allowing Confederate flag-themed specialty license plates in Texas seemed to hit a roadblock at oral argument before the U.S. Supreme Court March 23.
An attorney for the Texas Division of the Sons of Confederate Veterans asserted that if Texas is to continue allowing private parties to propose license plate designs, the state must approve all such proposals.
The state therefore must approve its Confederate flag design as well as designs featuring swastikas or racial slurs, SCV's attorney said in response to hypothetical questions.
Justice Antonin Scalia suggested that with such assertions, SCV was actually arguing for the specialty plate program to be abolished.
But multiple justices expressed concern that by prohibiting all “offensive” license plate designs, the state was assuming too much discretion in curtailing speech.
The U.S. Court of Appeals for the Fifth Circuit, in Tex. Div., Sons of Confederate Veterans v. Vandergriff, 759 F.3d 388 (5th Cir. 2014) (83 U.S.L.W. 117, 7/22/14), found that the DMV board violated the First Amendment by denying SCV's Confederate flag license plate proposal.
Texas law allows nonprofit organizations to propose specialty plates, but the board can refuse such proposals if they “might be offensive.”
The board found “that a significant portion of the public” associated the Confederate flag with hate groups, the appeals court said.
The Fifth Circuit found specialty plates to be private speech rather than government speech.
Moreover, the board engaged in unconstitutional viewpoint discrimination by crediting the opinion that the Confederate flag symbolizes oppression and hate, the appeals court said.
In doing so, the board discriminated against SCV's opinion that the flag symbolizes independence, sacrifice and Southern heritage, the appeals court said.
Much of the argument focused on whether the specialty license plates are government speech, or whether they are private speech deserving First Amendment protection.
As the Fifth Circuit noted, this distinction is crucial because the First Amendment wouldn't apply to government speech here.
Roger James George Jr. of George Brothers Kincaid & Horton LLP, Austin, Texas, represented SCV and argued that the plates are private speech because they are created and chosen by private parties.
Texas Solicitor General Scott A. Keller of Austin, Texas, who represented the Texas Department of Motor Vehicles Board, argued that the plates are government speech because the state's name appears on all plates.
Further, the plates require a notice and comment process before being approved, Keller said.
And the state has final approval authority over the designs, Keller said.
Justice Samuel A. Alito Jr. posited a hypothetical in which Texas has 500 electronic billboards and allows individuals to put a message of their choice at the bottom.
Keller said that situation would constitute government speech because of the government's final approval authority.
Alito said he found that response “disturbing.”
Justice Sonia M. Sotomayor said the government has final authority for almost anything it does.
Therefore, the issue is when can the government say “no” to particular speech, she said.
Justice Ruth Bader Ginsburg asked George whether the state would have to allow designs that included swastikas, promoted “jihad” or supported legalization of marijuana use.
George responded that the state couldn't discriminate even in those situations.
Justice Anthony M. Kennedy asked whether the state would have to allow a design featuring a racial slur.
George responded affirmatively, but said the state could put its own disclaimer on the same license plate.
These responses made Scalia wonder if SCV's end goal was abolition of the specialty plate program rather than approval of its design.
Chief Justice John G. Roberts Jr. seemed sympathetic to abolition, suggesting that perhaps states shouldn't be in the business of letting people buy space on plates “to begin with.”
George argued that Texas created a limited public forum for license plates.
The state issued an open invitation to everyone, George said.
Keller disagreed, pointing to Pleasant Grove City v. Summum, 550 U.S. 460 (2009), in which the high court found that a city didn't violate the First Amendment by refusing to accept a religious organization's monument for display in a public park.
George argued that the court should ask whether a reasonable observer would perceive the speech on specialty license plates to be private or public.
Ginsburg asked whether a reasonable observer could answer “both.”
Similarly, Sotomayor said she believed the plates involved “hybrid speech” by both the government and private parties.
Kennedy asked Keller why the specialty plates program hasn't become a traditional public forum for speech.
Keller responded that it's not a public forum because Texas has “always” had control over its license plates.
Kennedy wasn't convinced, asking why a public forum can't evolve over time.
Justice Elena Kagan pondered the same question, saying we are in a “new world” where forums are created each day.
Keeping out “offensive” speech creates a possibility that the state will have “much greater control over its citizens' speech than we've typically been comfortable with,” Kagan said.
Ginsburg expressed concern about the DMV board's “offensive” standard, describing it as “nebulous” and broad.
Roberts asked George whether that standard could be replaced with a standard prohibiting speech likely to incite violence.
That standard wouldn't be a solution because even Ku Klux Klan rallies have been found not to incite violent behavior, George said.
Justice Stephen G. Breyer said that speech was “hurt” by Texas's policy, but not “a lot.”
Therefore the proper question was whether the state had a legitimate interest in its policy, he said.
Breyer and Sotomayor seemed sympathetic to Keller's argument that the state shouldn't have to associate with offensive speech.
A driver can simply put up a bumper sticker if he wants to speak through his vehicle, Breyer suggested.
Breyer asked, if a private citizen can object to a license plate message such as New Hampshire's “Live Free or Die” motto, why shouldn't the government be able to disassociate from controversial messages?
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A transcript of the argument is available at http://pub.bna.com/lw/14144us_argued.pdf.
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