Dead Confederates, A Civil War Era Blog

Lyle Denniston, the dean of reporters covering the Supreme Court, offers a recap of this morning’s oral arguments at SCOTTUSblog. Not surprisingly, almost the entire session was taken up with back-and-forth on whether the license plates in question are government speech, or individual speech, or something in-between. On the whole, it doesn’t sound like it went well for the State of Texas, given that even the perceived liberal justices like the Notorious RBG saw a First Amendment issue in the case:

But [Texas Solicitor General Scott A. Keller] 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 state’s 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 government does, it has final authority over,” but that would not be true if the government had not created the 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.​

Denniston concludes:

[SCV attorney R. James George, Jr.’s] entire time at the lectern, like Keller’s, was taken up with explorations of where free expression stopped and state regulation could begin — a line-drawing problem that would not even arise if the First Amendment did not apply at all.

 What was evident, by the close of the argument, that Texas had made no significant impression with its core argument, but the Court was left with a very challenging task of deciding what constitutional regime should be put in place to monitor the potential censorship of the messages that roll down Texas’s highways.​

The audio recording of this morning’s session should be released Friday, the same day that the justices will meet in conference. If they follow their usual practice, they will vote on the case then and divvy up the assignments for writing the ruling, dissent, and any concurring opinions among the justices. Public announcement of the decision likely will not come until June.

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