The case marks the first time the justices will consider the First Amendment implications of the program, similar to other programs across the county, and whether the speech depicted on the plates is government speech or the speech of the driver.
In Texas, individuals can choose to have standard issue plates, or pay a fee and design a plate that is subject to the approval of the state. It can be rejected if state officials find it offensive.
In court, Texas Solicitor General Scott A. Keller stressed the messages on the licenses plates constitute government speech. He said the state “etches its name onto each license plate” and that the law gives Texas the “sole control and final approval authority over everything that appears on a license plate.”
Mary-Rose Papandrea, a constitutional law professor at Boston College Law School, said that “in general the free speech clause of the First Amendment does not apply when the government is speaking.”
“The only check on what the government can say is the political process, ” she said.
But Keller ran into skeptical questions.
Chief Justice John Roberts, for example, expressed doubt that the license plate program constitutes government speech. He said there is no coherent government message but instead it seems like they are “only doing this to get the money.”
Justice Ruth Bader Ginsburg pointed to one plate that says “Mighty fine Burgers.”
“Is it government speech to say ‘Mighty fine Burgers’ to advertise a product?” she asked.
Justice Samuel Alito was concerned about the limits of the state’s argument. He broadened the scope of the issue to include electronic billboards around the state that might have a government message such as “wear a seatbelt” but also a message put forward by the people.
“Would that be government speech?” he asked.
Justice Elena Kagan questIoned whether the program has caused the state to relinquish control of the license plates and “made it a ‘people’s license plate’ for whatever private speech people want to say.”
“Clearly the court is concerned that Texas is not speaking through these license plates but rather affording over 400 groups across Texas a forum in which to express their point of view,” said Papandrea.
Indeed, R. James George Jr., a lawyer for the veterans’ group, said the speech involved is not government speech, but private speech. He said the state has issued an open invitation to everybody to submit public designs and “it created a limited public forum for these license plates.”
But Ginsburg was also worried that if the Sons of Confederate Veterans were to prevail, the specialty plates might include controversial symbols or speech.
She worried about an applicant, for instance, who might “design a swastika.”
Justice Anthony Kennedy acknowledged Ginsburg’s hypothetical.
“Must the state put those symbols or messages on the plates at the request of the citizen? ” he asked George.
“Yes,” George answered.
“At the end of the argument, some of the justices suggested that the speech at issue is ‘hybrid’ speech, or speech of both the government and private individuals, but they did not indicate how the First Amendment would apply in such situations,” said Papandrea.
The decision is expected to come down by early summer.
