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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.
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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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