License plates: Free speech vs. censorship

"Your position is that if you prevail, a license plate can have a racial slur?"

That was a question asked by U.S. Supreme Court Justice Anthony Kennedy of James George, an attorney representing the Sons of Confederate Veterans.

"Yes," replied George. "I don't think there's any consistent decision otherwise."

Attorney George replied "yes" when asked about swastikas, messages promoting jihad and messages to make marijuana legal.

He went on to contend that once a state decides to make extra cash by allowing assorted messages on license plates, it can't reject those it doesn't like without violating the free-speech rights protected by the First Amendment.

TRENDING: Bombshell memo declassified by Trump: It looks like FBI slow-walked investigation into Hillary campaign

The First Amendment support of free speech has always had some in the United States who deplored what they regarded as outrageous expression. But the majority of us – even when some expressions of free speech are hair-raising with either lack of reason or deemed obscenity – still support that controversial provision of freedom of speech.

Texas Solicitor General Scott Keller contended that the First Amendment protects against government efforts to curtail free speech by individuals. But "Texas law gives a state sole control and final approval over everything that appears on a license plate. The First Amendment does not mean that a motorist can compel any government to place its imprimatur on the Confederate battle flag on its license plate."

But there are nearly 450 specialized license plates authorized by Texas. These include a plate endorsing Dr. Pepper's soft drink and Mighty Fine Burgers (from an Austin hamburger establishment). And Chief Justice John Roberts noted:

"There's no clear identifiable policy … that the state is articulating. I mean, they're only doing this to get the money."

Justice Elena Kagan contended that there is "a new world" of "expressive fora" being created. If the state is going to be weeding out what it finds offensive, "the state will have much greater control over its citizens' speech than we've typically been comfortable with."

Chief Justice Roberts also commented:

"I think someone driving in Texas with a swastika (on the car's license plate) is, you know, likely to trigger public violence."

Texas, every Jan. 19, has an official state holiday: Confederate Heroes Day.

There are also numerous monuments to Confederate figures at the Texas state Capitol in Austin.

This First Amendment dispute has brought together a number of unlikely allies, including the American Civil Liberties Union, anti-abortion groups, Americans United for the Separation of Church and State, civil libertarian Nat Hentoff and conservative satirist P.J. O'Rourke. They contended:

"In a free society, offensive speech should not just be tolerated, its regular presence should be celebrated as a symbol of democratic health."

That this is a beneficiary to Texas is seen in the fact that the 450 varieties of Texas license plates took in $176 million last year, according to the Department of Motor Vehicles, which reported:

• 877,000 motor vehicles carry a special plate;
• They bear messages including "Choose Life," "God Bless Texas" and "Fight Terrorism";
• They also support burrito and burger chains, Boy Scouts, Mothers Against Drunk Driving, blood donations, and professional and college sports teams.

On the same day a state Motor Vehicles Board rejected the Sons of Confederate Veterans application because of concerns it would offend many Texans who believe the Confederate flag is a symbol of repression, the board approved a plate honoring the nation's first black Army units: The Buffalo Soldiers.

But this incited objections from American Indian groups over the Buffalo Soldiers fighting Indian tribes in the late 1800s.

Professor Lynn Rambo of Texas A&M Law School declared:

"There are a lot of competing racial and ethnic concerns, and Texas doesn't necessarily handle them any way but awkwardly sometimes."

A panel of federal appeals court ruled that the board's decision violated the group's First Amendment rights.

Judge Edward Prado, of the 5th U.S. Circuit Court of Appeals, ruled:

"We understand that some members of the public find the Confederate flag offensive. But that fact does not justify the board's decision."

And that ruling applies to the original stars and stripes, which led the troops commanded by the father of our country – as well as those of a number of his successors, including Thomas Jefferson, the author of our Declaration of Independence.

That so many of our Founding Father presidents were slave owners would be more of a national embarrassment were it not for the fact that almost all of the nations of the world they lived in had slavery.

But despite that tragedy, our presidential slave owners not only conscience-wrestled their inheritance of slaves, they also founded and led a nation that eventually enacted emancipation.

Media wishing to interview Les Kinsolving, please contact [email protected].