Argument analysis: Assuming the answer, up front
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