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Justices: Governments Get More Say On License Plates, Less On Road Signs


The U.S. Supreme Court weighed in yesterday on how the government should control a couple of very common forms of expression. It gave states pretty free reign over what goes on license plates, and it limited government regulation of signs. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In the license plate case, the court upheld a decision by the State of Texas not to issue specialty plates featuring the Confederate flag. By a 5-4 vote, the court said that since license plates are essentially government-issued IDs that will be viewed by the motoring public as an expression of the government's own opinion, a state is within its right to decide what messages to put on those plates. Writing for the court majority, Justice Stephen Breyer observed that if a driver wants to express himself with a message on his car, he can put it on a bumper sticker in even bigger letters.

While the Confederate license plate case had the sizzle, the court's other decision will rock the boat far more, casting a pall over nearly all sign regulations across the country. In the past, lower courts have upheld what were deemed reasonable sign regulations on the grounds that they were not aimed at suppressing any viewpoint. Now, however, the court has issued a broad, new constitutional mandate holding governments at all levels to the highest standard of proof in justifying sign regulations. Specifically, the court struck down a Gilbert, Ariz., sign ordinance because it imposed more stringent limits on temporary event signs than on political or ideological signs. Lawyers for local governments were shocked by the decision, saying it will wreak havoc with local, state and even federal laws like the federal Highway Beautification Act. That law grants routine exemptions for signs that mark historic monuments or even for signs offering tourists free coffee. William Brinton is counsel for the National League of Cities.

WILLIAM BRINTON: Somewhere between 99 percent and 100 percent of local governments are impacted by today's decision.

TOTENBERG: The court's decision, he observes, seems to call for uniform rules governing the size and placement of signs, how long they may remain up, et cetera. And that is particularly difficult to do, he says, when, for example, rules for political signs are compared to event signs. But Eric Rassbach of the Becket Fund for Religious Liberty sees the decision as the essence of simplicity.

ERIC RASSBACH: If you want to make a rule, don't pick and choose who the winners and losers are.

TOTENBERG: Three of the six justices in the majority - Alito, Kennedy and Sotomayor - sought to reassure worriers by listing a half-dozen acceptable sign rules. But as NYU law professor Burt Neuborne put it...

BURT NEUBORNE: We're in for a long, messy series of litigations.

TOTENBERG: At the end of the day, he observed, in the wake of the license plate decision, the government has much more power to speak itself. But on the subject of signs, the government has much less power to regulate how other people speak. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.