WASHINGTON — The U.S. Supreme Court struggled Monday in a dispute over a proposed Confederate battle flag license plate to balance worries about government censorship and concerns that offensive messages could, at worst, incite violence.
Nearly 150 years after the end of the Civil War, the justices heard arguments in a case over Texas’ refusal to issue a license plate bearing the battle flag. Nine other states allow drivers to display plates with the flag, which remains both a potent image of heritage and a racially charged symbol of repression.
Specialty license plates are big business in Texas. They brought in $17.6 million in Texas last year and state officials said there are now nearly 450 messages to choose from.
The state rarely rejects a specialty plate, but it did turn down a request by the Texas division of the Sons of Confederate Veterans for a license plate with its logo bearing the battle flag. The group’s lawsuit led to Monday’s hearing.
The justices seemed uncomfortable with arguments advanced by the state in defense of its actions and the Sons of Confederate Veterans.
If the court finds the state must permit the battle flag on license plates, several justices wanted to know if a swastika, a racial slur and a call for jihad would be allowed if someone requested them.
Yes, lawyer R. James George Jr. said on behalf of the veterans group. “I just don’t think the government can discriminate based on content,” said George, who served as a law clerk to Supreme Court Justice Thurgood Marshall 45 years ago.
The result of such a ruling, Justice Anthony Kennedy said, probably would end the state’s program of allowing many specialized license plates. “If you prevail, it’s going to prevent a lot of Texans from conveying a message,” Justice Kennedy said.
More skeptical about the state’s argument, Chief Justice John Roberts and Justice Samuel Alito said the sheer number of messages and their wide range show that the state’s only interest is money.
“They’re only doing this to get the money,” Justice Roberts said. “Texas will put its name on anything.”
Texas Solicitor General Scott Keller said the state makes the plates and owns them. “Texas has its name on every license plate,” Keller said.
Car owners remain free to express any message they wish by attaching bumper stickers or painting their cars, he said.
Texas commemorates the Confederacy in many ways. The battle flag is etched on a century-old Civil War monument on the grounds of the state Capitol in Austin.
The First Amendment dispute has brought together some unlikely allies, including the American Civil Liberties Union, anti-abortion groups, Americans United for Separation of Church and State, civil libertarian Nat Hentoff and conservative satirist P.J. O’Rourke.
“In a free society, offensive speech should not just be tolerated, its regular presence should be celebrated as a symbol of democratic health — however odorous the products of a democracy may be,” Hentoff, O’Rourke and others said in a brief backing the group.
The case could be important for how the Supreme Court determines whether the speech at issue belongs to private individuals or the government.
Eleven states are supporting Texas because they fear that a ruling against the state would call into question license plates that promote national and state pride and specific positions on such controversial issues as abortion.
A decision in Walker v. Sons of Confederate Veterans, 14-144, is expected by late June.