How the First Amendment affects your specialty license plate

Does the state of Texas have the right to issue specialty license plates featuring a Confederate flag? Marcia Coyle of The National Law Journal fills in Gwen Ifill on the case being argued at the Supreme Court, as well as a decision to not take up a Wisconsin voter ID case.

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  • GWEN IFILL:

    It was a busy day at the Supreme Court. The justices decided not to take up a voter I.D. case out of Wisconsin, and they heard arguments over the right to issue license plates in Texas that feature a Confederate Flag.

    NewsHour contributor Marcia Coyle of The National Law Journal was there again and joins me now.

    Let's start by talking about this Wisconsin case. In 2011, it was a big deal, this idea that voters had to present photo I.D.s at the polls. And this was considered by Democrats to be voter suppression and by Republicans a chance to beat back voter fraud.

    So now this gets to the Supreme Court, and they decided to end it?

  • MARCIA COYLE, The National Law Journal:

    Not really.

    They decided not to hear the Wisconsin case, so that leaves in place the lower court decision upholding Wisconsin's law. But the court said nothing about the merits of the challenge to Wisconsin's law. And, Gwen, right now, there are a number of other cases pending and moving up the pipeline that challenge other states' voter I.D. laws, and, in particular, Texas and North Carolina.

    Texas, there was a full-blown trial and the judge in that case found intentional racial discrimination by the state of Texas, unlike in Wisconsin. That case is now on appeal in the Fifth Circuit, and it is expected whoever loses will take it to the Supreme Court. So as of today, we really don't know how the justices think about some of these laws.

  • GWEN IFILL:

    But we know that, originally, this was put on hold not because of the merits of the case, but because it was too close to an election.

  • MARCIA COYLE:

    Exactly. There's a court doctrine. The court doesn't like to see changes to election law shortly before elections.

    The Wisconsin law was going to go in effect right before midterm elections. Now, today, the ACLU and other groups that have challenged Wisconsin's law immediately went to the lower court to ask again that it be put on hold temporarily, because there is an April 6, I believe, election. And, again, they haven't had time to implement the changes.

  • GWEN IFILL:

    Right. OK.

    Well, let's move on to the arguments of the case today, because it seems like we never get away from a debate, periodically, politically, legally, about the Confederate Flag, this time on a license plate.

  • MARCIA COYLE:

    Right.

    A really interesting case, a very interesting argument today. Texas, like many states, offers specialty license plates for a fee.

  • GWEN IFILL:

    We're seeing one there.

  • MARCIA COYLE:

    Good.

    And there is a state board that approves or disapproves of designs that drivers submit, often after notice and comment. Sons of Confederate Veterans is an organization that tries to preserve the legacy of those who fought for the Confederacy in the Civil War. And they sought a design on the plate that featured the Confederate Flag.

    Well, this state board of Texas heard thousands of comments, mostly negative, saying that the flag was really a badge of slavery. The board rejected the design. There was an appeal. Finally, the lower appellate court ruled in favor of Sons of Confederate Veterans.

    Texas brought the case to the Supreme Court. It's a First Amendment case. The conflict boiled down very simply is, who is the speaker on these license plates? The state of Texas says, this is government speech. We have our imprimatur on that license plate. If it's government speech, the First Amendment doesn't apply.

  • GWEN IFILL:

    Ah.

  • MARCIA COYLE:

    The government can choose whatever message it wants to market or display on the license plate. Sons of Confederate Veterans says nobody who looks at these license plates think that it's the government speaking. They think it's the driver.

  • GWEN IFILL:

    The individual who has asked for the vanity plate.

  • MARCIA COYLE:

    Exactly. Exactly.

    And so if it's the individual, then the First Amendment does apply. That was the structure of the argument today.

  • GWEN IFILL:

    But isn't former Governor Perry, Texas Governor Perry, who is Republican, had said that this was scraping old wounds? Did that argument get any kind of discussion today before the justices?

  • MARCIA COYLE:

    It really didn't figure so much on that argument. The justices really pressed each side here to see what was the limit to their arguments.

    For example, the Texas attorney, he was asked, oh, well, for example, could someone propose vote Republican on a license plate and Texas say that's fine, but turn down someone who wants votes Democrats on their license plate?

  • GWEN IFILL:

    And the answer to that?

  • MARCIA COYLE:

    Well, the Texas attorney said there would be other constitutional bars to doing that, like equal protection.

    But he pressed the consequences of the other side's arguments. Texas would have to put on its license plate, for example, a swastika or al-Qaida, something promoting jihad.

  • GWEN IFILL:

    That was truly offensive.

  • MARCIA COYLE:

    Yes, truly offensive. And he said that these groups that are denied their designs can get their messages out in other ways, bumper stickers, a decal on a windshield.

  • GWEN IFILL:

    So, why put it on a plate?

    Now, the justices listening to these arguments, put on your tea leaf-reading hat. Were they reacting in any particular way? What kinds of questions were they asking?

  • MARCIA COYLE:

    Well, as I said, they pressed him on the limits.

  • GWEN IFILL:

    Yes.

  • MARCIA COYLE:

    And on the Sons of Confederate Veterans side, they asked that attorney, so what is this here, this license plate?

    And he said, this is a limited public forum. Texas opened these specialty license plates to the public to design a message. And once they did that, it was — the First Amendment would come into play. Texas, he said, uses an arbitrary standard for deciding about the message. It says only if it's offensive to anyone.

  • GWEN IFILL:

    How many other states have the Confederate Flag or things like this on their plates?

  • MARCIA COYLE:

    Confederate Flags?

  • GWEN IFILL:

    Yes.

  • MARCIA COYLE:

    I don't know how many, to be honest with you.

  • GWEN IFILL:

    OK. But — so we don't know whether this would apply to other states or not?

  • MARCIA COYLE:

    Oh, yes, certainly.

    What the court says about whether this is government speech or private speech, individual speech will impact — have an impact on other states that offer specialty license plates. And also the court hasn't spoken much about what government speech really is. It's not only license plates, but it could be in other contexts as well.

  • GWEN IFILL:

    Which will be an opportunity.

    Marcia Coyle of The National Law Journal, thank, you always.

  • MARCIA COYLE:

    My pleasure, Gwen.

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