A budget gimmick with a cost

The right to free speech means nothing if not the right to express ideas that other people might find offensive. Protecting the exercise of that right is essential to democratic government, as the world was reminded, horrifically, by the mass murder of Muhammad-mocking cartoonists at France's Charlie Hebdo magazine in January.

Whether, and under what circumstances, the government might be obligated to foster or facilitate potentially offensive speech is a much different question, with which the U.S. Supreme Court is currently wrestling, apropos a most un-French context: the rear ends of Texas gas-guzzlers.

Like many other states, Texas allows motorists who pay a fee to display special designs on their license plates. Some of these messages are created by the state legislature; others by private groups, subject to pre-approval by the state Motor Vehicles Board. The program generated $25 million between 2009 and 2014. Most designs honor colleges or military veterans and win easy authorization.

Yet when the Sons of Confederate Veterans asked to stamp the Confederate battle flag on Texas's tags in 2011, the board refused, citing protests from African-Americans and others who saw the flag, justifiably, as a symbol of slavery and secession.

Then-Gov. Rick Perry opposed the design, too: 'We don't need to be scraping old wounds,' he said. At the time, he was seeking the 2012 Republican presidential nomination and coping with fallout from a Washington Post article noting that his family once owned a hunting camp nicknamed with a racial slur.

So the Sons of Confederate Veterans went to court, where Texas argued that its law empowering the board to bar 'offensive' messages is perfectly constitutional. The tags are state property and therefore a means of 'government speech,' Texas argued; the Supreme Court has said governments have a right to get their messages out clearly and freely, just as individuals do.

A New Orleans-based federal appeals court sided with the Sons, though, ruling that a reasonable observer would associate the flag with the motorist, not the state.

Texas appealed, and in oral arguments Monday, the justices quickly identified the essential problem with its case.

Permitting the board to ban 'offensive' designs gives it 'too broad a discretion,' as Justice Ruth Bader Ginsburg put it. It smacks of 'viewpoint discrimination,' which is not allowed in state-established public forums. Once a government opens up its license plates to private organizations' messages, including, as in Texas, political slogans such as 'Fight Terrorism,' it's hard to draw the line at the Confederate flag, or any symbol — doubly so in a state that commemorates Confederate Heroes Day on Jan. 19.

Everything's bigger in Texas, it seems, including the contradictions. Still, the justices also seemed hesitant to force the state to allow any conceivable message on its license plates. Again, it was Ginsburg who cut to the chase, asking the Sons of the Confederacy's lawyer whether local Nazis have a right to slap swastikas on their tags.

'Yes,' he responded forthrightly but unsettlingly.

The trouble here, as Justice Sonia Sotomayor noted, is that a license plate — owned by the government and manufactured under government auspices but displayed by a private individual on private property — is 'hybrid speech. It's both government and the individual speaking at the same time.'

And it's hard to devise a constitutional rule that would protect the legitimate interests of both consistently. At least no court has managed to do so yet.

One option, discussed in court Monday, is to consider license-plate messages to be government speech, as long as the available messages result from an act of the state legislature — not a bureaucratic process like Texas's.

Alas, federal judges have had difficulty crafting such a standard in the context of 'Choose Life' tags — the ones with simulated drawings of smiling children. Innocuous to the naked eye, they are promoted by anti-abortion groups and have thus triggered repeated lawsuits from abortion rights advocates.

One appeals court did approve Tennessee's 'Choose Life' tags as legislatively authorized and, therefore, government speech. But another said South Carolina's 'Choose Life' tags, also legislatively enacted, still amounted to viewpoint discrimination because the legislature didn't offer a pro-choice alternative.

The only clear, consistent rule would be: States must either throw open their specialty-tag programs to all comers, from Daughters of the American Revolution to Citizens for Jihad, or eliminate them.

This would not only simplify free-speech law but also strike a small blow for transparent government. As Chief Justice John Roberts said Monday, Texas is 'only doing this to get the money.' He might have added: 'Without raising taxes.'

Yet if this case proves anything, it's that a specialty tag program is no free lunch, just a smarter-than-usual fiscal gimmick. The next time a governor brags about how much his state's program has raised, ask him if he counted litigation costs.

Charles Lane is a columnist for the Washington Post.

Editor's Note: This column has been updated to correct the name of the organization seeking approval for a new license tag in Texas.