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Court Looks for Limits in Confederate Flag License Plate Case

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By Mark Wilson, Esq. on March 23, 2015 3:55 PM

Speech is free -- unless it's government speech, in which case, it's a little less free. The question before the Supreme Court in Walker v. Sons of Confederate Veterans involved ostensibly private speech with elements of government speech.

The Texas division of the Sons of Confederate Veterans petitioned to have the state create a license plate with the Confederate flag on it. The state refused, and now we're at the Supreme Court, with a bunch of justices who aren't sure whether a license plate is government speech or a public forum.

Mighty Fine Burgers

Part of the problem for Scott Keller, the Texas solicitor general, is that the government is engaging in content-based discrimination, even though the state's name is stamped on the license plate. Plainly, the state isn't allowing a particular message on state-issued license plates, even though it produces some 400 different license plates for everything from amateur radio operation to a restaurant chain called "Mighty Fine Burgers."

All of the justices, recognizing the smell of fresh meat, seized on this problem immediately, grasping for some kind of limiting principle. Keller became mired even further in the weeds after Justice Kennedy asked whether a personalized license plate might be a new kind of public forum, as older examples of public forums, like a park, don't make sense because "[p]eople don't go to parks anymore."

Keller didn't think the state opened up licenses plates as public forums, but he also offered that the state had over 400 different designs of personalized plates available, and the state had only ever rejected about a dozen designs. Nevertheless, the justices also wanted to know what the limits were of controlling access to a public forum; does the fact that the government requires, say, a permit to have a protest in a park make that protest "government speech"?

R. James George, who represented the Sons of the Confederacy, didn't fare so well here as the justices asked him a simple question about whether the quantity of available designs vitiates the claim that all 400 or so designs represent purely government speech. George conceded only that if it's just the state concocting these license plates, it would be government speech, but if citizens became involved in the process -- as with the Sons of the Confederacy -- the license plates suddenly become private speech.

Standards and Practices

Of concern especially to Justice Breyer was why Texas disapproved of the dozen or so license plate designs it didn't allow. He held Keller to the mat, insisting on an answer. Unfortunately, one didn't appear to be forthcoming; no one is quite sure why Texas denied those designs, and there don't appear to be clear criteria for approving or denying a plate design. This especially represents a problem if the justices rule that license plate designs create a limited public forum; denying access to a public forum requires an objective set of criteria unrelated to the content of the message.

The justices also demanded standards from George, but he was unwilling to provide any, saying the state couldn't regulate privately designed and funded license plates. If a license plate is private speech, would Texas have to allow swastikas? Pro-jihad messages? "Bong hits for Jesus?" suggested Justice Ginsburg, referring to a 2007 Supreme Court case.

Justice Kennedy suggested that George's expansive suggestion would actually curtail speech, as a ruling requiring the state to put anything on a license plate that a citizen wanted would result in the abolition of personalized plates. Texas obviously wouldn't want to have to provide Klan license plates, which George said they might have to if the Court ruled in his favor.

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