Public Forum versus Limited Public Forum at Oral Argument in Walker v. Sons of Confederate Veterans

In a previous post (Preview of Walker v. Sons of Confederate Veterans) I described the facts and the principal arguments in the Walker case. In this post I describe some of the additional points that were raised during oral argument.

Texas allows non-profit organizations  to submit designs for specialty license plates, but it reserves the right to reject messages that are "offensive" to members of the public. The Texas Motor Vehicle Board rejected a license plate design proposed by the Sons of Confederate Veterans that incorporated a Confederate flag.

The two principal arguments made by the parties were described in the previous post. SCV contended that the message on a specialty license plate is private speech and that the decision of the Motor Vehicle Board rejecting the Confederate flag design was viewpoint based and unconstitutional. The State of Texas contended that the words on a license plate are government speech and that the government has the power to accept or reject messages as it pleases.

These are both "absolutist" positions -- that either private parties or the government has unfettered discretion in selecting the messages that will appear on license plates, and during oral argument it became apparent that the justices of the Supreme Court were not satisfied with the extreme positions that both parties took. See Mark Sherman, Justices Struggle with Free Speech Case Over License Plates (Yahoo News, March 23, 2015). It also became apparent that the "public forum doctrine" would play a critical role in the resolution of this case.

The state charges a hefty fee for these plates and earns over $17 million annually through the program. This prompted the justices to ask Scott Keller, the Texas Solicitor General, whether the state had created a "public forum" for private speech by operating the specialty license plate system. Justice Kennedy took the lead in this line of questioning:

JUSTICE KENNEDY: Is this a case where the state -- the government -- has aided in creating a new kind of public forum? People don't go to parks anymore. If the government bought 17 soapboxes to put around the park, that's government property, but the government can't prohibit what kind of speech goes on there. Why isn't this a new public forum -- in a new era? (Tr. 9)

Kennedy returned to this theme a few minutes later:

JUSTICE KENNEDY: Why isn't this traditional? [meaning, "Why isn't this a traditional public forum?"] ... Why hasn't this become traditional, now that you have allowed it? You have opened up a new forum. (Tr. 15)

Justice Kagan pushed this point as well:

JUSTICE KAGAN: But in a world in which you have approved over 400 license plates and they are pretty common in the State of Texas and you have disapproved only a very select few, you know, it does seem as though you've basically given -- relinquished your control over this and, you know, made it a people's license plate for whatever private speech people want to -- to say. (Tr. 16)

Attorney Keller responded that this could not be a "public forum" because the State of Texas kept its name on the license plates and maintained control over the approval process. However, Justice Kennedy pointed out that this argument was circular:

JUSTICE KENNEDY: No, but's that's circular. The whole question is whether you -- whether you can control the message. You're assuming the answer to the question. (Tr. 10)

Attorney Keller faltered at one other critical juncture. Justice Breyer, who is devoted to policy analysis and cost-benefit balancing, asked the state Solicitor General to put aside doctrine and to simply identify the interest that the state had in regulating the content of specialty plates. After some discussion back and forth Justice Breyer practically begged the Solicitor General to articulate the standard that the state would follow in approving or rejecting plates -- and when the attorney refused to set any limits on the state, Breyer said he would lose the case:

JUSTICE BREYER: What is the interest that the state is furthering in keeping certain messages off the plate? (Tr. 24) ...
JUSTICE BREYER: If they have no interest at all in making such a distinction, then I think since speech is hurt at least a little, they ought to lose. But if they have a justifiable interest, since you can put the bumper sticker next door, I think they win. And therefore, I'd like to know what their interest is.
MR. KELLER: And the State of Texas interest here is propagating messages that show the diverse backgrounds, educational backgrounds, products of Texas. ...
JUSTICE BREYER: I'd like to get my answer. I was asking you what is the interest in Texas, and why does it keep off the messages it keeps off? ...
MR. KELLER: Texas regulations provide that the Board can deny a license plate for something that members of the public would find offensive, but it also says that the Board can deny plates for any reason established by a rule, which is --
JUSTICE BREYER: Fine. Then I think they lose. The reason I think they lose is because I don't think a state could come in and say we keep off a private message, and we'll tell you the reason later. We'll -- we can do it for any reason we want. There you're hurting speech, and I don't see Texas's interest in saying we can keep it off for any reason we want .... (Tr. 25-27)

Attorneys do not win points or win arguments or win cases by refusing to answer a judge's question.

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R. James Jones, the attorney for the Sons of Confederate Veterans, did not fare any better with the absolutist position that he proposed and tried to defend. He suggested that specialty license plates are like "billboards" that the state has rented out to private groups and that those groups have a constitutional right to put any message they please on them. During oral argument the justices repeatedly challenged Mr. Jones, demanding to know whether he really meant to suggest that people had the right to put any message at all on their license plates:

JUSTICE GINSBURG: Suppose ... the design is a swastika. ... Does ... whoever is in charge of the license plates ... have to accept ... that design?
MR. GEORGE: I don't believe that the state can discriminate against people who want to have that design. ...
JUSTICE GINSBURG: Jihad? ...
MR. GEORGE: Jihad. Jihad on the license plate? Can be ... there is obviously a court of appeal ... a district court from Ohio in which "Infidels" was held to be ...
JUSTICE KENNEDY: What is your answer to Justice Ginsburg's hypothetical? Yes or no, must the state place those symbols or messages on the plates at the request of the citizen? Yes or no?
MR. GEORGE: Yes.
JUSTICE GINSBURG: How about "Make pot legal"? ...
MR. GEORGE: Yes.
JUSTICE GINSBURG: That's OK? And how about "Bong Hits for Jesus"?
MR. GEORGE: Yes. (Tr. 32-33)

Later in oral argument Justice Kagan asked Mr. George whether the state had to allow people to put "the most offensive racial epithet you can imagine" on a specialty plate, and Mr. George again responded "I don't think ... the government can discriminate on content." (Tr. 52)

After Mr. George took this extreme position in support of unlimited private speech on license plates, Justice Scalia and Justice Kennedy suggested that the consequence of this position would be the abolition of specialty license plates:

JUSTICE SCALIA: So you're ... you're really arguing for the abolition of Texas specialty plates, aren't you?
MR. GEORGE: I am arguing that the state ...
JUSTICE SCALIA: I couldn't make a better argument for ... in that direction ... than what you are doing.
MR. GEORGE: Well, we had got along a long time without it, and we can get along ... without it again.
JUSTICE KENNEDY: So in a way, your argument curtails speech. (Tr. 33-34)

Some of Mr. George's other arguments on behalf of the SCV were also counterproductive. For example, instead of contending that the State of Texas had created a "public forum" by selling space on specialty license plates to private groups as suggested by Justice Kennedy, Mr. George repeatedly argued that the specialty license plates were only a "limited public forum." (Tr. 29, 38) There is a vast difference between a "public forum" and a "limited public forum." In Christian Legal Society v. Martinez (2010) the Supreme Court explained that content based laws regulating speech in a public forum are evaluated under the standard of "strict scrutiny," but that content based laws regulating speech in a limited public forum are constitutional so long as they are "reasonable." In CLS the Supreme Court ruled that a state university's "recognition" of student organizations did not create a public forum but rather a "limited public forum" -- and that the university therefore had the power to insist that registered student organizations follow a "nondiscrimination policy."

Mr. George doubled down on this strategy by citing Justice Alito's dissenting opinion in Christian Legal Society v. Martinez for the proposition that "speech that we hate is something we should be proud of protecting." (Tr. 35) Mr. George might better have cited Justice Oliver Wendell Holmes' opinion in Abrams v. United States or Justice Louis Brandeis' opinion in Whitney v. California or Justice Robert Jackson's opinion in Barnette v. West Virginia Board of Education or Justice William Brennan's opinion in Texas v. Johnson or Justice Anthony Kennedy's opinion in United States v. Alvarez for that same principle. There was no need to remind the Court of its decision in Christian Legal Society, where Justice Ginsburg, writing for a majority that included Justice Kennedy, ruled that it's perfectly constitutional for the state to impose content based restrictions on expression in a limited public forum.

It is true that even in a limited public forum the government may not restrict speech on the basis of "viewpoint," and Mr. George asserted that the decision of the Texas Motor Vehicle Board was "viewpoint based." But if the Supreme Court finds that the restriction on "offensive" license plates designs is content based and not viewpoint based, then a concession that the plates are a "limited public forum" constitutes a concession that the restriction is constitutional.

Justice Sotomayor proposed another approach that would uphold Texas' right to reject the Confederate flag design. She suggested that specialty license plates represent speech both by the state and by the private organization, and that either one of them could veto the message on the plate. (Tr. 37-38).