Number plates scheme could provide a licence to offend in the land of the free

Out of America: Cash-strapped states have hit on a way of making money out of drivers that may be in collision with the First Amendment

The Supreme Court may put an end to vanity licence plates which last year earnt Texas $28m (REX)

The First Amendment to the US Constitution – which guarantees freedom of speech, freedom of the press and freedom of religion – is a wondrous thing indeed, of which people around the world are rightly envious. But boy, can it tie America’s legal system in knots.

For proof, look no further than oral arguments at the US Supreme Court last Monday, when the nine justices heard the case of the State of Texas vs Sons of Confederate Veterans. It sounds pretty heavy stuff. In fact, it’s about what you can stick on a vanity number plate, that trivial item of personal advertisement in this land where the car is king.

Individual states have long used licence plates to make a point. Those of Illinois boast of the “Land of Lincoln”. New Mexico bills itself as the “Land of Enchantment”. Here in Washington DC, our plates carry the clarion call of the War of Independence, “No Taxation without Representation”. (Much good it’s done us; 250 or so years on, the District of Columbia still has no member of Congress to call its own.)

Then plates got personal. For a few dollars extra, you could have your own customised one. Today there must be millions of them. Some are funny (WAS HIS, proclaimed a top-of-the-line BMW, driven by a lady on the right end of a divorce settlement), or the two-finger salute to the world by a Texas anti-environmentalist: MPG LOL. At least as many, in my experience, are all but incomprehensible.

A few naughty ones do slip through the net, but most are caught. In California, they banned a plate reading 5EXMCHN. What me, guv? said the owner, protesting that the “5” referred to May, the birth month of his wife, and the rest to his former career as a car mechanic. The censors in California’s vehicle licensing office were not amused.

But now the states themselves are muscling in on the act. In cash-strapped times, why not sell special plates of their own? A dozen have taken up the practice, none with more vigour than Texas. Right now you can choose from more than 400 options, with subjects that range from Mighty Fine Burgers (an Austin-based fast-food chain) and Texas’s home-state soda Dr Pepper to ocelot conservation, colleges and sundry sports teams.

A few have been busts (notably one featuring the Fort Worth Cats baseball team, just four plates in circulation). But the hugely popular Lone Star black plate has sold 55,000 – only to be expected perhaps in a state that fancies itself as an independent country.

The scheme has been a nice little earner too. Since 2009, more than 215,000 plates have been sold, generating more than $28m (£18.8m) for Texas’s coffers.

At which point enter the local branch of the Sons of Confederate Veterans (SCV). If Dr Pepper and burger joints had speciality plates, said the group, why not us? But as with most matters relating to the Confederacy in contemporary America, things are never simple.

That the SCV should have a major presence in Texas is natural, given that the state fought with the South in the Civil War. Officially the group’s mission is to keep alive the history of Confederate soldiers, but some civil rights advocates have accused it of racism. When it applied for its own special plate, featuring the Confederate flag, Rick Perry, the governor of Texas at the time, said no.

The plate would be too divisive, as a symbol of slavery, Perry declared. It should be noted, too, that the governor was then running for the White House, and having to deal with press revelations that his family had owned a hunting camp once known as “N*****head”. But the SCV was undeterred – its reaction, in vanity plate lingo, an outraged XQQQSME.

The state’s refusal, it declared, was a blatant denial of free speech; the Confederate flag was no more than an emblem of southern heritage. The group lost at a first trial, but that verdict was overturned by a federal appeals court. Texas in its turn appealed to the Supreme Court, which agreed to take the case. And so to last Monday’s proceedings – not just about free speech, but about whose right of free speech was more important.

Was it the state of Texas, issuer of the plates and whose property, technically, they were? In that case, as the state’s lawyer argued, the plates were a form of “government speech” which, according to previous Supreme Court rulings, meant that Texas alone could decide what went on its car number plates.

Not so, responded the SCV’s attorney. No one who saw a such a plate thought that it was the government (that is the state) speaking, but would automatically assume it reflected the views of the driver who owned the car. In other words, Texas had inadvertently created a new form of individual expression that was entitled to protection under the First Amendment.

But the complications were only starting. The justices, among the finest lawyers in a nation of lawyers, were plainly confused. For once they did not split along ideological lines. A clear majority seemed to agree with the SCV, that it was a victim of improper discrimination. But they worried, where would it all end?

If the Confederate flag was OK, then why not plates promoting Jihad and Isis, or emblazoned with the swastika? Trapped by his own logic, James George Jr, the group’s lawyer, said that yes, these too could not be banned. “Could a plate have a racial slur?” Justice Anthony Kennedy enquired. “Yes,” came the answer again.

If the Supreme Court does agree with George when it issues its ruling this summer, driving behind a pick-up truck in Texas will be an interesting experience indeed. But the odds are it won’t come to that. If Texas is obliged to open its plates to all-comers, it will surely put an end to the scheme. And after all, as Justice Stephen Breyer noted in a welcome outbreak of common sense, what are bumper stickers for anyway?