BY THE end of the oral argument in Walker v Sons of Confederate Veterans on March 23rd, the justices seemed caught between a Scylla and Charybdis. If they sided with the state of Texas, which had refused the Sons’ application to issue a special licence plate bearing the Confederate flag, the justices may be seen as giving state officials the green light to engage in official censorship. But a ruling in favour of the Sons would seem to force Texas to grant requests for licence plates with racial epithets, swastikas or paeans to terrorism, which may ultimately force the state to shut down its speciality plate programme altogether and forfeit the millions of dollars it collects from drivers each year. Slippery slopes whichever way you turn.

Today, a closely divided court took its chances with the Scylla. In a 5-4 ruling, the thoroughly pragmatic Justice Stephen Breyer held that since messages on licence plates are government speech, not private speech, the Sons’ own constitutional rights are not infringed upon when Texas declines to publish its design. States are free to say or not say whatever they want.

In justifying his position, Justice Breyer relied heavily on Pleasant Grove City v Summum, a ruling in 2009 that a city may refuse to accept a privately donated monument in a public park, even if it accepts other monuments from other private organisations. The monuments constitute government speech, the court held unanimously, so it is no violation of the First Amendment to deny particular groups the opportunity to express themselves with the imprimatur of the city.

While granting that licence plates aren’t exactly like public monuments, Justice Breyer argued that the circumstances are similar enough to be adjudicated under the same rubric. “When government speaks,” he wrote, “it is not barred by the free speech clause from determining the content of what it says.” Licence plates, he wrote, have long “conveyed more than state names and vehicle identification numbers.” They have also “communicated messages from the states.” From depictions of a “Hereford steer” and the “Old Man of the Mountain” on the Arizona and New Hampshire plates, respectively, to the “codfish” and “rider atop a bucking bronco” on the Massachusetts and Wyoming plates, states have been decorating their tags since 1917. And slogans have a long and noble history as well, starting with “Idaho Potatoes” in 1928 and expanding to the likes of “America’s Dairyland” in Wisconsin and “Keep Florida Green”.

Texas is no exception. “[T]he Texas Legislature has specifically authorized specialty plate designs stating, among other things, ‘Read to Succeed,’ ‘Houston Livestock Show and Rodeo,’ ‘Texans Conquer Cancer,’ and ‘Girl Scouts.’” And when it prints licence plates with designs from private organisations, the “governmental nature” of the message is clear:

The state places the name “TEXAS” in large letters at the top of every plate. Texas licence plates are, essentially, government IDs. And issuers of ID “typically do not permit” the placement on their IDs of “message[s] with which they do not wish to be associated.” Consequently, “persons who observe” designs on IDs “routinely—and reasonably—interpret them as conveying some message on the [issuer’s] behalf.”

This is where Justice Breyer’s opinion veers into the disingenuous, and Justice Samuel Alito exploits the weak spot to rather hilarious effect. Would a person who saw a Confederate flag on a car's plate "reasonably" interpret this as official Texas support for the Confederacy?

Here is a test. Suppose you sat by the side of a Texas highway and studied the licence plates on the vehicles passing by...If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the state of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?