While the Confederate battle flag is no longer an element of Georgia's official state flag, 3,573 Georgia drivers have paid for state-issued specialty license plates bearing an image of it.
At least nine other states offer similar plates, and on Monday the Supreme Court heard arguments in a case that seeks to add Texas to the list. The state of Texas says the Sons of Confederate Veterans cannot force it to issue such plates. The veterans organization says the state’s refusal is an infringement on free speech.
As arguments unfolded before the high court, it was clear that the justices were wrestling with the question of where government censorship begins and protected speech ends.
“Your position is that, if you prevail, a license plate can have a racial slur?” asked Justice Anthony Kennedy, a frequent swing vote. “That’s your position?”
“Yes,” replied R. James George Jr., the Austin-based attorney representing the Sons of Confederate Veterans, adding that “speech that we hate is something we should be proud of protecting.”
Justice Ruth Bader Ginsburg pressed George with similar examples, asking about specialty license plates imprinted with a swastika, an encouragement to commit jihad or the phrases “Make Pot Legal” or “Bong Hits for Jesus.” In each case, George said Texas should be obliged to print the plate if requested to.
“I don’t think the government can discriminate against content,” George said.
Texas argues that if a state government is issuing the license plates, it has every right to regulate what’s on them.
“The government is entitled to select the messages that it wishes to propagate,” Texas Solicitor General Scott A. Keller said “Texas does not have to associate itself with messages that it doesn’t want to and finds offensive.”
The Texas specialty license plate program now includes more than 400 permitted messages, Keller said Monday. Some messages are authorized by the state Legislature, and others are applied for through the Texas Department of Transportation.
“Texas will put its name on anything,” said Chief Justice John Roberts Jr. “The only thing that unifies it is, is they … get money from it.”
On rare occasions, though, Texas has rejected proposed specialty plates.
In 2009, the Sons of Confederate Veterans requested a commemorative license plate. The proposed plate depicted a Confederate battle flag framed by the words “Sons of Confederate Veterans 1896.” A faint Confederate flag also appeared in the background.
The plate is similar in appearance to Georgia’s specialty plate, released last year, which also bears the organization’s logo. When it was introduced it cost drivers $80. A percentage of the fee goes to the Georgia Division of the Sons of Confederate Veterans.
The Texas Department of Motor Vehicles Board unanimously voted in 2011 to reject the proposed license plate on the grounds that it was offensive. That standard worried several justices across the ideological divide Monday, who noted the logic goes beyond license plates.
The key question could turn on whether the license plate message is considered the private speech of the driver or the official speech of the government that issued the plate. If it’s private speech, the First Amendment might compel the state to accept it. If it’s government speech, the state enjoys more control.
Cynthia Courts, an Atlanta attorney who specializes in First Amendment rights said that the case hinges on “viewpoint discrimination.”
“A law shouldn’t be enacted that discriminates against viewpoints no matter how caustic,” Courts said. “Just because you do not agree with it, does it allow the state to enact a law to restrict an offensive viewpoint? We must protect the speech we hate the most.”
Courts said the court’s ruling could affect not just Georgia drivers, but any drivers who want specialty plates in any state.
“It will inform how we express our views license plates,” she said.
But Mark Goldfeder, a senior fellow at the Center for Law and Religion at Emory University, said the Texas case will have almost no impact in Georgia. If the court rules for Texas, essentially empowering states to make their own decisions, Georgia will have no reason to change course. The state has been issuing such plates for years with relatively little public outcry or political repercussions, Goldfeder noted.
A ruling for the Son of Confederate Veterans would mean Georgia and other states must approve such plates, although they might be permitted to add disclaimers saying that the message on the plate is not state endorsed, he said.
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