Texas License Plates and the Confederate Flag

03/23/2015 01:10 pm ET | Updated May 23, 2015

The Supreme Court heard arguments today in the case of Walker v. Sons of Confederate Veterans. The case poses an intriguing First Amendment question.

Like many states, Texas permits drivers to design specialty license plates bearing messages they want to promote. The states that do this do it largely as a way of generating income, because they charge for the privilege.

Texas has approved hundreds of different messages on its license plates, including "Choose Life" and "Fight Terrorism," but the Texas Board of Motor Vehicles balked when the Sons of Confederate Veterans sought to include an image of the Confederate flag on the plate that it had designed. The Board denied this proposed license plate under the authority of a provision that authorized it to exclude messages that were likely to offend others. Finding that this was true of the Confederate flag, it rejected the proposal.

The question is whether this was unconstitutional.

When I was a first-year law student back in 1968, one of my professors at the University of Chicago Law School, the eminent First Amendment scholar Harry Kalven, explained to us that legal reasoning is often best understood as "the process of choosing among competing analogies." The issue in Walker is a classic illustration of this insight.

As a general rule, the First Amendment prohibits the government from disadvantaging a speaker because his message might offend others. This is indeed a fundamental principle of our First Amendment jurisprudence. As the Supreme Court explained 65 years ago:

A function of free speech under our system of free expression is to invite dispute. It may indeed best serve its high purposes when it induces a condition of unrest ... or even stirs people to anger.

The court therefore made clear that the freedom to express particular messages cannot constitutionally be restricted "unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public ... annoyance or unrest."

More recently, in 2011, the Supreme Court, in an opinion by Chief Justice John Roberts, echoed this view, stating that "if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Applying this principle, it seems clear that Texas cannot constitutionally forbid the display of the Confederate flag because others might find it "offensive or disagreeable."

But it is not so simple. There is a competing analogy. Although the government cannot constitutionally silence a speaker because his ideas are offensive to others, it is also true that the government itself is permitted to speak in its own voice without having to provide equal voice to those who disagree with it. This is the "government speech" doctrine.

For example, the government can constitutionally erect a statue in a public park celebrating the life of Martin Luther King without also having to erect a statue celebrating the Ku Klux Klan. The government can put its own message on the state's license plate stating "Texas Is Great" without also having to put the message "Texas Sucks" on its license plate. The state can promote the message that people should not smoke without also having to promote the message that people should smoke. The Supreme Court building can display the message "Equal Justice Under Law" without also having to display the message "There Is No Equal Justice in This Court." And so on.

Thus, there are two competing ways to think about the issue in Walker. On one view, the government is silencing certain speakers because other citizens find their message offensive. This is clearly unconstitutional. On the other view, the state is deciding for itself what messages it wants to convey on its license plates, and the messages on the state's license plates are thus best understood not as the speech of individuals but as the speech of the state itself.

Those are the competing analogies: Is the government discriminating among private speakers, or is it expressing only the messages it wishes to convey? Which is the "right" analogy?

The strongest precedent in support of Sons of Confederate Veterans might be Widmar v. Vincent, decided in 1981, in which the Supreme Court held unconstitutional a regulation of the University of Missouri that allowed more than 100 student groups to meet in university facilities but refused to allow student groups to use those facilities for purposes of religious expression. The court held that the state could not constitutionally discriminate among speakers in this manner.

The strongest precedent in support of the government in Walker is Pleasant Grove v. Summum, decided in 2009, in which a town had accepted 11 privatelydonated monuments for display in its public park but then refused to accept a new monument that was offered by adherents of the Summum religion. The Supreme Court held that this was not unconstitutional discrimination because a public park can hold only so many monuments and because people understand the monuments in public parks as government rather than private speech.

So once again I ask: Which is the "right" analogy? Are the license plates displayed on private individuals' cars more like the classrooms in Widmar or the monuments in Pleasant Grove?

Time to play lawyer....