March 23, 2015 / 3:43 PM / in 2 years

U.S. top court wrestles over Confederate flag license plate

The design of a proposed "Sons of the Confederacy" Texas state license plate is shown in this handout illustration provided by the Texas Department of Motor Vehicles March 20, 2015. REUTERS/Texas Department of Motor Vehicles/Handout via Reuters

WASHINGTON (Reuters) - U.S. Supreme Court justices on Monday appeared conflicted over how to resolve a free speech dispute over whether the state of Texas was required to approve a specialty vehicle license plate that displays a Confederate battle flag.

A major concern for some justices was that if the state has no say over what messages to allow, it would pave the way for other potentially offensive messages such as images of Nazi swastikas or statements promoting the Islamist militant group al Qaeda.

At one point during the one-hour argument, Justice Ruth Bader Ginsburg recited a list of potentially offensive messages.

James George, the lawyer representing the group Sons of Confederate Veterans, which proposed the flag plate, said Texas would have to approve all of them if his side won.

“So they could have the swastika. And suppose somebody else says I want to have ‘Jihad’ on my license plate. That’s okay, too?” Ginsburg said.

The state could simply halt the program if it does not want to approve messages it disagrees with, Chief Justice John Roberts said.

“If you don’t want to have the al Qaeda license plate, don’t get into the business of allowing people to buy ... the space to put on whatever they want to say,” Roberts said.

Although concerned by the prospect of offensive license plates, the justices raised questions about whether the state had a sound legal reason under the U.S. Constitution’s First Amendment, which guarantees free speech, for how it approved some plates but not others.

The state declined to approve the plate with the Confederate flag, to some an emblem of Southern pride and to others a symbol of racism. The flag in question, a blue cross inlaid with white stars over a red background, was carried by troops for the pro-slavery Confederacy in the U.S. Civil War.

The key question is whether license plate phrases constitute government speech or the speech of the person purchasing the plate. If it is government speech, the government has more leeway to decide which messages it promotes.

States can generate revenue by allowing outside groups to propose specialty license plates that people then pay a fee to put on their vehicle.

“They are only doing this to get the money,” Roberts said, noting Texas approved a plate proposed by Austin-based restaurant chain Mighty Fine Burgers.

A ruling is expected by the end of June.

The case is Walker v. Sons of Confederate Veterans, U.S. Supreme Court, No. 14-144.

Reporting by Lawrence Hurley; Editing by Will Dunham

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