If Texas honors Confederacy on license plates, jihadists might be next

Forty years ago, George and Maxine Maynard helped set a standard for what can and cannot be printed on license plates.

As devout members of the Jehovah's Witnesses faith, the New Hampshire residents believed the "Live Free Or Die" motto imprinted on their state license plates conflicted with their religious beliefs. So they covered the phrase. When the Maynards received multiple traffic citations for obscuring that portion of their plates, they fought the tickets, taking their grievances all the way to the Supreme Court, which ultimately ruled that states could not compel private citizens into speech they found objectionable.

Now the Supreme Court is hearing another case that tests the limits of free speech on license plates, and it seeks to answer what's essentially the reverse question. If the state cannot compel private citizens into speech they find distasteful on license plates, can private citizens force public bodies into manufacturing plates deemed offensive?

That's at the heart of Walker v. Sons of the Confederate Veterans, a case now before the high court, the results of which could have far-reaching implications on what car owners and state DMVs alike can or cannot print on license plates.

Confederate enthusiasts want to honor the legacy of Southern soldiers by flying the Stars and Bars on specialty Texas license plates, which would feature the battle emblem and the phrase "Sons Of The Confederate Veterans 1896." Nine southern states already offer such vehicular homages to the Confederacy, but Texas officials rejected the plates on the grounds they could be offensive.

Before nodding along in agreement with the rejection, consider that at the same time the Supreme Court heard arguments last week, Oklahoma officials responsible for approving vanity plates in their state rejected "LGBTALY" on the grounds it was sexual in nature. The same Oklahoma commission had previously approved "STR8SXI" and "STR8FAN." Offensive and explicit, it seems, are in the eye of the beholder.

Courts are not yet involved in the Oklahoma incident, though the dispute is a straightforward one over whether a private individual's right to free speech has been impinged upon. The Texas case before the Supreme Court is more nuanced.

Not only is Walker v. Sons of the Confederate Veterans a dispute over free speech, but a dispute over who's doing the speaking. Texas contends license-plate content amounts to government speech, not individual speech, and thus is not subject to First Amendment concerns. Attorney Scott Keller said Texas should be free to decide what goes on license plates in the same way the United States Postal Service might decide what to put on a postage stamp.

That argument might have held more sway with the justices, except that Texas has approved 438 of these specialty license plates, which are different than the vanity plates in the Oklahoma dispute, and rejected none. Specialty plates cost more than standard license plates, and the proceeds from their sale help raise money for both the state and the organizations that sponsor the plates.

In extending the opportunity for a plate to pretty much every organization that desires one, Justice Elena Kagan said Texas had turned the process into a free-for-all that should be open for everyone, not matter how distasteful their views.

"It does seem as though you've basically given, relinquished your control over this, and you know, made it a people's license plate for whatever private speech people want to say," she said.

Should the Supreme Court rule in favor of allowing the Confederate plates, Texas may be faced with two scenarios. Either the state ends the specialty license-plate program in its entirety, which would hurt the revenue streams of both the state and countless numbers of nonprofit organizations, or it allows the Stars and Bars.

Under that scenario, motorists driving in the Lone Star State might not only see license plates that honor Confederates, but theoretically also plates that pay tribute to al-Qaeda, ISIS and other terrorist organizations. Justice Ruth Bader Ginsburg laid out that slippery slope as she questioned attorney R. James George, who represented Sons of the Confederate Veterans.

"So they could have the swastika," she said. "And suppose somebody else says, 'I want to have 'jihad' on my license plate.' That's okay too?"

Somewhat hilariously, George responded, "Vegan?"

Yes, in the land where barbecue is king, vegans are on par with jihadists and Nazis.

A decision in Walker v. Sons of the Confederacy is not due until next month. The Supreme Court has taken great care to protect free speech throughout history, but one possible outcome in this case could be the court finds that speech on license plates it neither private nor public, but a hybrid of both.

If that's the case, the court could rest on the same precedent set by the Maynard case in 1977, and that is if both parties are speaking on a license plate, then both must agree on its message.

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