Writing for Slate.com, Mark Joseph Stern recounts some interesting– and in some instances, legitimately funny– moments from Monday’s Supreme Court docket. Before the Court was a case pitting the State of Texas against a group called the Sons of Confederate Veterans; the group wanted the state to manufacture their customized license plate, which features the Confederate flag. Texas, apparently, will produce plates designed by citizens for a fee. Fearing backlash, the state refused to print the plates. The question before the Court, put very simply, is: can they do that?
Stern delights in some of the almost satirical elements of this particular legal battle:
This case is packed with ironies—not least of which is the fact that a state that officially celebrates Confederate Heroes Day refuses to print a license plate commemorating Dixie. But when Texas Solicitor General Scott A. Keller approaches the bench on Monday morning, he doesn’t seem particularly bemused. Nor does he seem thrown by the fact that last time he appeared before the justices, he defended Texas’ right to fund housing discrimination against minorities, and he is now arguing that Texas doesn’t want to offend black people.
Despite the incongruity, Keller was unbending in his argument. License plates, he said, are government speech, and therefore do not warrant First Amendment protection. Some Justices quickly pointed out to him that the offer to print personalized plates creates a public forum in which free speech rights would certainly apply, but Keller pushed back. He said they are not a “traditional” public forum in the way that a park is.
‘Why aren’t they traditional?’ [Justice Anthony] Kennedy demands. ‘People don’t go to parks any more. They drive.’ Kennedy’s park slander raises one of his very Kennedy-esque points (which, on this perpetually divided court, are often the only points that matter.) In Citizens United v. Federal Election Commission, the swing justice famously wrote that Americans ‘must be free to use new forms, and new forums, for the expression of ideas.’ With its customized license plate program, Texas clearly created a new forum for expression. Now it wants to retain the power to censor that expression.
Stern notes that the Court seemed largely unconvinced that the custom plates warrant zero free speech protection. But when the attorney for the Sons of Confederate Veterans, Roger James George, Jr., argued for absolute freedom of speech on the custom plates, that did not sit well either:
George wants to bind Texas’ hands entirely, withdrawing the state’s ability to censor even the most odious license plates. Cue the parade of horribles. What about a swastika, says Justice Ruth Bader Ginsburg. Absolutely—print the plate. What about the word jihad? Sure—print it. (George initially thinks Ginsburg says ‘vegan,’ which may be just as offensive as ‘jihad’ in Texas.)
Some levity on a Monday is welcome in any workplace, even the United States Supreme Court. But as is often the case, the Court is now left with the task of creating compromise, even if neither side seemed willing to budge from their respective stances:
Plainly, seven members of the court aren’t convinced that Texas should be able to bar Confederate flag license plates while allowing nearly 500 others designs, including some that oppose abortion and encourage war. The trick, apparently, will be crafting a rule that keeps the swastika out but lets in the stars and bars. Please the Confederates, disappoint the neo-Nazis: When it comes to the First Amendment, you can’t win them all.
— Drew Whitcup, Zeteo Contributing Writer