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Justices Debate Place Of Offensive Language On License NPR

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R. James George Jr., attorney for Sons of Confederate
Veterans, meets with reporters outside the Supreme Court
Monday. Molly Riley/AP hide caption

itoggle caption
Molly Riley/AP

R. James George Jr., attorney for Sons of Confederate Veterans, meets with reporters outside the Supreme Court Monday.

R. James George Jr., attorney for Sons of Confederate
Veterans, meets with reporters outside the Supreme Court
Monday.

Molly Riley/AP

Nazis, jihadis, racial slurs and even “Mighty Fine Burgers” all
made cameo appearances at the U.S. Supreme Court Monday as the
justices tackled a case of great interest to America’s
auto-loving public. The question before the court: When, if
ever, can the state veto the message on a specialty license
plate?

Texas, like many other states, makes millions of dollars by
issuing these specialty car tags for a fee. The state, over
time, has issued 480 such plates and rejected 12. The plate at
the center of Monday’s case was proposed by the Sons of
Confederate Veterans and featured a Confederate battle flag.
The state motor vehicle board rejected the design, finding that
the flag was offensive to a “significant portion” of the
public.

The Confederate Veterans group sued, contending its free speech
rights were being violated.

Texas Solicitor General Scott Keller, attorney for the
petitioners, speaks to reporters after the court heard
arguments in the Walker v. Sons of Confederate
Vets
case. Molly Riley/AP
hide caption

itoggle caption
Molly Riley/AP

Texas Solicitor General Scott Keller, attorney for the petitioners, speaks to reporters after the court heard arguments in the Walker v. Sons of Confederate Vets case.

Texas Solicitor General Scott Keller, attorney for the
petitioners, speaks to reporters after the court heard
arguments in the Walker v. Sons of Confederate
Vets
case.

Molly Riley/AP

“They should be treated like everybody else,” said their
lawyer, R. James George Jr., on the steps of the Supreme Court
Monday. “They want a license plate that they think will honor
their heritage,” and they “should be able to get it.”

But Texas Solicitor General Scott Keller replied that while
people are free to festoon their cars with bumper stickers
saying whatever they want, they cannot force the government to
give its stamp of approval to those messages.

“This is Texas’ program, it’s Texas’ license plates, and it can
speak how it wants to,” said Keller.

Inside the court chamber, Keller emphasized his point that the
license plates are government speech, not private speech.

The proposed Sons of the Confederacy license plate.

The proposed Sons of the Confederacy license plate.
Texas Dept. of Motor Vehicles/AP
hide caption

itoggle caption
Texas Dept. of Motor Vehicles/AP

“Is it government speech to say ‘Mighty Fine Burgers’ to
advertise a product?” asked Justice Ruth Bader Ginsburg.

Yes, Keller replied.

“Do you want us to hold that because it’s government speech,
the government can engage in viewpoint discrimination?” asked
an annoyed-sounding Justice Anthony Kennedy. “Is that what I’m
supposed to write?”

“That’s right,” replied Keller, adding that the court has
recognized the principle of unencumbered government speech
before.

“Does that have any limits?” asked Justice Elena Kagan.
Suppose, she asked, that Texas approved a license plate that
said “Vote Republican,” but refused to approve a license plate
that said “Vote Democratic”?

Lawyer Keller floundered around for an answer until Justice
Antonin Scalia jumped in, noting that the various laws that bar
partisan state speech would prevent that.

Justice Kennedy then turned to the well-accepted legal doctrine
that bars viewpoint discrimination in determining who can speak
in public forums like parks.

“People don’t go to parks anymore,” said Kennedy. “They drive.”
So, “why isn’t this a new public forum in a new era?”

Chief Justice John Roberts took another tack, contending that
the state has “no clear, identifiable policy” it is
articulating on specialty plates. “They’re only doing this to
get the money,” he said.

“What are the limits of this argument?” asked Justice Samuel
Alito. “That’s what concerns me.”

“Suppose … the state had an official state soapbox at the
park,” he said, and “people who pay the fee would be allowed to
go up there and say something that they wanted, provided that
it was approved in advance by the state. Would that be official
state speech?”

Justice Scalia, however, seemed to view license plates as
different from other forms of government speech.

“Do you know of any other expressive fora that are owned by the
state, that are manufactured by the state, that have the
state’s name on it as license plates do?” he asked. “I don’t
know of any others.”

“No,” replied Keller. “This is unique.”

But, several justices noted, there are nebulous standards to
guide decisions on which license plates can be rejected.

There don’t have to be specific standards, replied the state’s
Keller. This is the state’s speech, and the state can determine
which messages it wants to associate with.

If Keller had a hard time, so too did R. James George Jr.,
representing the Sons of Confederate Veterans.

Suppose someone wants a specialty plate with a swastika or the
word “jihad,” asked Ginsburg. “That’s OK, too?”

Yes, replied George.

What about a plate that says “Make pot legal?” asked Ginsburg.

Yes, replied George.

Justice Kagan jumped in, testing the limits of George’s
argument. Suppose someone wants to put “the most offensive
racial epithet that you can imagine” on a license plate? she
asked.

George replied that the government can’t discriminate based on
content. But he said the state could put a disclaimer “in big
orange letters” on the plate saying, “This is not the state’s
speech.”

“Where is that going to fit on the license plate?” Justice
Sonia Sotomayor asked sardonically.

Justice Kennedy followed up: “Your position is that if you
prevail, a license plate can have a racial slur?”

Yes, replied George. The only alternative is for the state to
shut down the specialty plate program entirely.

Justice Stephen Breyer, however, saw the question in less
absolute terms. In a case like this, yes some speech is being
hurt, “but not much,” he said, because people are still free to
put bumper stickers on their cars, right next to the license
plate. And conversely, the state, in representing its citizens,
has some justification for keeping certain kinds of messages
off license plates.

By the end of the argument, though, the conversation went from
principle to money — the millions of dollars raised by the
specialty plate program.

“That is really all this is about, isn’t it?” opined Justice
Alito.

Copyright © 2015 NPR. For personal, noncommercial use only. See
Terms of Use. For other uses, prior permission required.

AUDIE CORNISH, HOST:

At the U.S. Supreme Court today justices tackled a case of
great interest to America’s auto-loving public. Whose free
speech is that on your license plate? Specifically, was Texas
within its rights when it rejected a plate that featured the
Confederate battle flag? Here’s NPR’s legal affairs
correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: Texas, like many other states, makes
millions of dollars by issuing specialty license plates for a
fee. The state, over time, has approved 480 such plates and
rejected just 12. The plate at the center of today’s case was
proposed by the Sons of Confederate Veterans and featured a
Confederate battle flag. The state motor vehicle board rejected
the design, finding that the flag was offensive to a
significant portion of the public. The Confederate Veterans
group sued, contending that its free speech rights were being
violated. On the steps of the Supreme Court today, their
lawyer, R. James George Jr., explained why.

(SOUNDBITE OF ARCHIVED RECORDING)

R. JAMES GEORGE JR.: They should be treated like everybody
else. So that they want a license plate that they think it will
honor their heritage and that they should be able to get it.

TOTENBERG: But Texas Solicitor General Scott Keller replied
that while people are free to festoon their cars with bumper
stickers saying whatever they want, they cannot force the
government to give its stamp of approval to those messages.

SCOTT KELLER: This is Texas’s program. It’s Texas’s license
plates, and it can speak how it wants to.

TOTENBERG: Inside the court chamber, he reiterated the point
that the license plates are government speech, not private
speech. Justice Ginsburg – is it government speech to say,
mighty fine burgers to advertise a product? Answer – yes.
Justice Kennedy – do you want us to hold that because it’s
government speech, the government can engage in viewpoint
discrimination? Is that what I’m supposed to write? Answer –
that’s right, and the court has recognized that before. Justice
Kagan – does that have any limits? Suppose Texas approved a
license plate that said vote Republican but refused to approve
a license plate that said vote Democratic. Lawyer Keller
floundered around for an answer until Justice Scalia jumped in,
noting that the various laws that bar partisan state speech
would prevent that. Justice Kennedy then turned to the
well-accepted legal doctrine that bars viewpoint discrimination
in determining who can speak in public forums like parks.
People don’t go to parks anymore, they drive, he said, so why
isn’t this a new public forum in a new era? Chief Justice
Roberts – there’s no policy that the state is articulating
here. They’re only doing this to get the money. Justice Alito –
what are the limits of your argument? That’s what concerns me.
Suppose the state had an official state soapbox at the park,
and people would pay a fee to be allowed to go up there to
speak as long as the message was approved in advance by the
state. Justice Scalia – can you tell me of any other expressive
state forum like this that’s owned and manufactured by the
state with the state’s name on it? I don’t know of any others.
No, replied Keller, this is unique. But several justices noted
there are no standards to guide decisions on which license
plates can be rejected. If Keller had a hard time, so too did
Mr. George, representing the Sons of Confederate Veterans.
Justice Ginsburg – suppose someone wants a specialty plate with
a swastika or the word jihad. Must the state put those symbols
on the plate? Answer – yes. Justice Ginsburg – what about a
plate that says make pot legal? Answer – yes. Justice Kagan –
suppose someone wants to put the most offensive racial epithet
that you can imagine on a license plate. Answer – the
government can’t discriminate on content, but it could put a
disclaimer in big, orange letters on the plate saying, this is
not the state’s speech. Justice Sotomayor sardonically – where
is that going to fit on a license plate? Justice Kennedy – your
position is that if you prevail, a license plate can have a
racial slur? Yes, replied George. The only alternative is for
the state to shut down the specialty plate program entirely.
Justice Breyer, however, saw the question in less absolute
terms. In a case like this, yes, some speech is being hurt, but
not much because people are still free to put bumper stickers
on their cars right next to the license plate. And conversely,
he said, the state in representing its citizens has some
justification for keeping certain kinds of messages off license
plates. By the end of the argument, the conversation went from
principle to money – the millions of dollars raised by the
specialty plate program. Said Justice Alito – that’s really all
this is about, isn’t it? Nina Totenberg, NPR News, Washington.

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