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GWEN IFILL: It was a busy day at the Supreme Court. The justices decided not to take up a voter I.D. case out of Wisconsin, and they heard arguments over the right to issue license plates in Texas that feature a Confederate Flag.

NewsHour contributor Marcia Coyle of The National Law Journal was there again and joins me now.

Lets start by talking about this Wisconsin case. In 2011, it was a big deal, this idea that voters had to present photo I.D.s at the polls. And this was considered by Democrats to be voter suppression and by Republicans a chance to beat back voter fraud.

So now this gets to the Supreme Court, and they decided to end it?

MARCIA COYLE, The National Law Journal: Not really.

They decided not to hear the Wisconsin case, so that leaves in place the lower court decision upholding Wisconsins law. But the court said nothing about the merits of the challenge to Wisconsins law. And, Gwen, right now, there are a number of other cases pending and moving up the pipeline that challenge other states voter I.D. laws, and, in particular, Texas and North Carolina.

Texas, there was a full-blown trial and the judge in that case found intentional racial discrimination by the state of Texas, unlike in Wisconsin. That case is now on appeal in the Fifth Circuit, and it is expected whoever loses will take it to the Supreme Court. So as of today, we really dont know how the justices think about some of these laws.

GWEN IFILL: But we know that, originally, this was put on hold not because of the merits of the case, but because it was too close to an election.

MARCIA COYLE: Exactly. Theres a court doctrine. The court doesnt like to see changes to election law shortly before elections.

The Wisconsin law was going to go in effect right before midterm elections. Now, today, the ACLU and other groups that have challenged Wisconsins law immediately went to the lower court to ask again that it be put on hold temporarily, because there is an April 6, I believe, election. And, again, they havent had time to implement the changes.

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How the First Amendment affects your specialty license plate

The case marks the first time the justices will consider the First Amendment implications of the program, similar to other programs across the county, and whether the speech depicted on the plates is government speech or the speech of the driver.

In Texas, individuals can choose to have standard issue plates, or pay a fee and design a plate that is subject to the approval of the state. It can be rejected if state officials find it offensive.

READ: Supreme Court takes on specialty license plates

In court, Texas Solicitor General Scott A. Keller stressed the messages on the licenses plates constitute government speech. He said the state "etches its name onto each license plate" and that the law gives Texas the "sole control and final approval authority over everything that appears on a license plate."

Mary-Rose Papandrea, a constitutional law professor at Boston College Law School, said that "in general the free speech clause of the First Amendment does not apply when the government is speaking."

"The only check on what the government can say is the political process, " she said.

But Keller ran into skeptical questions.

Chief Justice John Roberts, for example, expressed doubt that the license plate program constitutes government speech. He said there is no coherent government message but instead it seems like they are "only doing this to get the money."

Justice Ruth Bader Ginsburg pointed to one plate that says "Mighty fine Burgers".

"Is it government speech to say 'Mighty fine Burgers' to advertise a product?" she asked.

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Supreme Court skeptical of specialty license plate case

Analysis

From the moment that a state lawyer stood up in the Supreme Court to arguethat messages on license plates are governmentspeech, it seemed that the Justices went forward for the rest of the hour assuming that itwas not at least not always. A strange hearing thus unfolded on when the First Amendment puts curbs on government regulation of expression, and how tight those curbs can be.

The Court previously had made it absolutely clear that, if it is the government that speaks out on any issue, the First Amendment does not apply at all: it can say what it likes, and it can refuse to say what it opposes or even simply what it finds a bit unpleasant. In other words, as speaker, it can act as total censor.

That is the simple approach that Texas was seeking to have the Court embrace in Walker v. Sons of Confederate Veterans, a case that gives the Court its first chance in nearly four decades to address the nature of license plate messages, beyond simply numbers and state names.

The states solicitor general, Scott A. Keller, opened by arguing that, becausethe state exercises total control over the making and display of auto and truck license plates, it has absolute authority to refuse toplace its imprimatur on any message that a tourist might want to put on a vanity, or specialty, plate.

But he had hardly finished his opening sentences when members of the Court began acting as if the First Amendment did apply to that system. Justice Ruth Bader Ginsburg said the state used a nebulous standard for disapproving plate designs which, of course, would be beside the point if the state had absolute freedom to choose; it would not need any standard at all, and could act on whimsy.

Justice Samuel A. Alito, Jr., quickly offered a hypothetical about government billboards that contained the states message, but left room at the bottom for people to put up a message of their choice. He was, of course, hinting at a hybrid display: some government, some private. Keller responded that, if the government had final approval authority, it still would be government speech.

Justice Sonia Sotomayor suggested that, almost anything that the governmentdoes, it has final authority over, but that would not be true if the government had not createdthe words in other words, if some of the speech was privately initiated. She, too, was talking about a hybrid situation and that, again,would seem to bring the First Amendment at least partly into play.

When Justice Elena Kagan took a turn at suggesting a hypothetical, with a state allowing a license plate that said Vote Republican but turned down one that would say Vote Democratic, the states lawyer said that might run into other constitutional provisions but not the First Amendment.

It was perhaps inevitable that, sooner or later, someone would start pondering whether a license plate program was, in fact, a kind of public forum one, to be sure, that would have to conform to the First Amendment. Justice Anthony M. Kennedy was the first to do so, wondering if a specialty license plate program did amount to a new kind of public forum. Again, though, that begged the question whether it was, as Texas insisted, a program of government speech.

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Argument analysis: Assuming the answer, up front

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