By Tony Mauro, From Supreme Court Brief

The U.S. Supreme Court seemed eager on Monday to find a way to let Texas keep the Confederate flag off its specialty license plates, as the justices heard lively oral arguments in a knotty First Amendment dispute.

The arguments came in Walker v. Texas Division, Sons of Confederate Veterans, in which the Confederate group claims the state violated its First Amendment rights when it declined its proposal for creating a vanity license plate that would include an image of the controversial battle flag.

Texas asserts the First Amendment does not prohibit states from picking and choosing the speech they express or endorse on license plates that bear the state’s name. But the veterans’ group asserts, and the U.S. Court of Appeals for the Fifth Circuit agreed, that the license plates convey the messages of individual drivers, which are harder to censor under the First Amendment.

On Monday, several justices expressed fear that if they rule the Confederate flag plates must be allowed on free speech grounds, it will be impossible to stop motorists from displaying swastikas or foul language on license plates as well.

Justice Ruth Bader Ginsburg at one point pressed the lawyer for the Confederate group to say whether, under his theory of the case, Texas would also have to allow plates displaying the swastika or messages like “Jihad” or “Make Pot Legal.”

The lawyer, R. James George Jr. a partner at George Brothers Kincaid & Horton in Austin, began to cite other cases. But Justice Anthony Kennedy interjected, asking George sharply, “What is your answer in this case as to Justice Ginsburg’s hypothetical? Yes or No?”

George answered yes, but later Kennedy pressed George again to be sure he understood. “Your position is that if you prevail, a license plate can have a racial slur.” George said yes, again, though in that instance or others, he said the state could put a disclaimer on the plate “in big orange letters.”

Justice Sonia Sotomayor asked skeptically, “Where is that going to fit on the license plates?”

The talk about swastika license plates prompted Justice Antonin Scalia to suggest sarcastically to George, “You’re really arguing for the abolition of Texas specialty plates, aren’t you?” Scalia appeared to mean that a program that allowed such offensive messages would probably cause such an uproar that it would be scrapped.

Scalia was picking up on an earlier comment made by Chief Justice John Roberts Jr. When Texas Solicitor General Scott Keller warned that allowing license plates with Confederate flags would open the door to plates “about al-Qaida or the Nazi party,” Roberts replied, “But there is an easy answer to that, which is they don’t have to get in the business of selling space on their license plates to begin with.”

Roberts and other justices suggested the vanity-plate program in Texas and elsewhere was aimed more at generating revenue than fostering free speech, perhaps making it less worth rescuing.

But Keller forcefully asserted that “this is not just about Texas making money, although Texas does make money. This is about the state of Texas not wanting to place its stamp of approval on certain messages.”

Some justices seemed wary about aspects of Keller’s arguments. If Texas could reject a Confederate flag license plate design, Justice Elena Kagan asked, could it also allow a “Vote Republican” license plate but reject one that said “Vote Democratic”?

Keller said no. Other parts of the Constitution besides the First Amendment would come into play, such as the equal protection clause, he said.

Kennedy, perhaps looking for a different escape route from the knotty problem before him, posited that perhaps the Texas license plate program has “opened up a new forum” where new First Amendment rules could be written.

When Keller contrasted state license plates to government-owned parks where speech has traditionally been allowed, Kennedy said, somewhat cryptically, “People don’t go to parks anymore. They drive.”

Kagan also spoke of “a new world” with “all kinds of new expressive forums,” and worried that if Texas wins the case, “the state will have a much greater control over its citizens’ speech.”

But in the end, justices seemed to view that prospect as less abhorrent in the context of license plates than the parade of horribles that could result from a ruling that gives Texas drivers almost unlimited freedom to use their license plates as mini-billboards.

“The public speech is somewhat hurt” if Texas wins, Justice Stephen Breyer mused during the argument. “A lot? Well, put up a bumper sticker.”

IMAGE:

Proposed Sons of Confederate Veterans license plate. Photo: Texas Department of Motor Vehicles.

For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202721394837/Justices-Struggle-Over-Confederate-Flag-License-Plates#ixzz3VIyIMejQ