By Brent Kendall
WASHINGTON--The Supreme Court on Friday said it will decide
whether states can deny permission for specialty license plates
because a proposed logo or message may be offensive to the
public.
The court said in a brief written order it would hear an appeal
by Texas, which in 2011 rejected a proposal by the Sons of
Confederate Veterans for the creation of a plate with a square logo
of the confederate battle flag.
In rejecting the proposed plate, the state's Department of Motor
Vehicles Board said many members of the public reasonably
associated the confederate flag with expressions of hatred or bias
against minorities.
The Sons of Confederate Veterans sued, arguing the state's
stance violated the group's First Amendment free-speech rights
because the state issued specialty license plates designed by other
organizations. This, the group said, amounted to what is known as
impermissible viewpoint discrimination by the government.
A federal trial judge sided with Texas, ruing the First
Amendment didn't require the state to endorse the confederate flag
by placing it on government-controlled property. The Fifth U.S.
Circuit Court of Appeals reversed that ruling and sided with the
Sons of Confederate Veterans in a split decision earlier this
year.
The appeals court's majority said the state couldn't selectively
shield the public from some kinds of speech because of perceived
offensiveness. The Supreme Court will review that ruling.
Texas said in court papers that it has issued numerous specialty
license plates, including ones with messages such as "Stop Child
Abuse," "Fight Terrorism" and "Mothers Against Drunk Driving." The
state said the appeals court's logic would lead to "absurdities"
because Texas would also be compelled, in the name of viewpoint
neutrality, to allow plates that promote terrorism, child abuse or
drunk driving.
The Sons of Confederate Veterans said the Constitution forbids
states from censoring unpopular viewpoints. When Texas rejected the
proposed plate, "the state gave its imprimatur to the viewpoint
that the Confederate battle flag was a symbol of racism, and
discriminated against those who view the flag as a historic symbol
of the soldier's sacrifice, independence and Southern heritage,"
the group said in a court brief.
The Supreme Court will likely hear oral arguments in the spring,
with a decision expected by the end of June.
The case isn't the court's first experience with license plates.
In 1977, the court ruled the state of New Hampshire couldn't
require drivers to display the state motto "Live Free or Die" on
state-issued plates.
The court agreed to hear two other cases on Friday. In the
first, the justices agreed to consider a patent case involving
Cisco Systems Inc. In 2007, Commil USA LLC sued Cisco for
infringement of a patent related to short-range wireless
networks.
A jury found Cisco liable for inducing customers to commit
patent infringement and awarded Commil nearly $64 million. A
federal appeals court threw out the jury award on multiple legal
grounds. The Supreme Court took the case to decide whether Cisco
should have been allowed to defend against the allegations by
presenting evidence that it believed in good faith the Commil
patent was invalid.
The U.S. Court of Appeals for the Federal Circuit, a special
court that hears patent disputes, sided with Cisco on that issue
last year. U.S. Solicitor General Donald Verrilli, the Obama
administration's lawyer at the Supreme Court, filed a brief urging
the justices to hear the case, saying the appeals court's ruling
for Cisco was incorrect.
In a third matter, the court agreed to consider a death penalty
case from Louisiana in which the defendant said he was
intellectually disabled and ineligible to be executed.
The high court said it would hear an appeal from death-row
inmate Kevan Brumfield, who was convicted in 1995 for the
first-degree murder of a Baton Rouge police officer. After Mr.
Brumfield's conviction was finalized in state court, a federal
judge found him to be intellectually disabled. But the Fifth
Circuit this year reversed the judge and ruled the state court's
death-penalty judgment should be left in place.
Write to Brent Kendall at brent.kendall@wsj.com
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