WASHINGTON — In a dispute over a proposed Confederate battle flag license plate, the Supreme Court struggled Monday 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 last year and state officials said there are now nearly 450 messages to choose from, from "Choose Life" to the Boy Scouts and hamburger chains.
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 both sides — the state in defense of its actions, and the Sons of Confederate Veterans in their appeal for the symbol.
If the court finds the state must permit the battle flag on license plates, Justice Ruth Bader Ginsburg asked in a series of questions, would it be forced also to allow plates with a swastika, the word "jihad," and a call to make marijuana legal?
Yes, lawyer R. James George Jr., a law clerk to Supreme Court Justice Thurgood Marshall 45 years ago, responded each time on behalf of the veterans group.
"That's okay? And 'Bong hits for Jesus?'" Ginsburg said, reaching back to an earlier case involving students' speech rights.
Again, George said yes, and remained firm even when Justice Elena Kagan added in "the most offensive racial epithet you can imagine."
He told the justices that "speech that we hate is something that we should be proud of protecting."
The result of such a ruling, Justice Anthony Kennedy said, probably would be the end of the state's program of allowing many specialized license plates, and a loss of free speech. "If you prevail, it's going to prevent a lot of Texans from conveying a message," 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 financial.
"They're only doing this to get the money," 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.
Keller urged the court not to force Texas to recognize offensive speech. "Texas should not have to allow speech about al-Qaida or the Nazi party simply because it offers a license plate propagating the message 'Fight Terrorism,'" Keller said.
But Roberts was unpersuaded by that argument. "If you don't want to have the al-Qaida license plate, don't get into the business of allowing people to buy...the space to put on whatever they want to say," the chief justice 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.
George said states concerned about seeming to endorse controversial messages could print on the plates "This is not the state's speech," in large orange lettering.
"Where is that going to fit on the license plate?" Justice Sonia Sotomayor asked.
A decision in Walker v. Sons of Confederate Veterans, 14-144, is expected by late June.
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