Want al-Qaeda on that license plate? Our view

States issue specialty license plates as a way to make money from drivers who want to make a statement about their hobby, the school they attended or even the hamburger chain they like best.

Few are controversial, but the rest — the ones that take a side in a volatile political issue such as abortion — regularly land states in court.

The latest is Texas, which appeared at the Supreme Court on Monday because in 2011, it refused to approve a plate bearing the Confederate battle flag, sponsored by the Sons of Confederate Veterans.

The plaintiffs say the state abridged their constitutional right to free speech. Not so, says the state; it's just trying not to take sides in a divisive fight.

The free speech argument is prevailing, with the U.S. 5th Circuit Court of Appeals siding with the plaintiffs. But the deeper truth — exposed by the Supreme Court justices' questions — is that specialty plates create an impossibly knotty problem that states would be smart to avoid.

Pressed by the justices to explain the guidelines the state follows, Texas Solicitor General Scott Keller was left grasping for a satisfying answer.

Texas wants "to prevent offensiveness and vulgar speech and ... promote safety (and) celebrate the diverse interests that the state has," he said. That's a fine ideal, indeed. Even so, leaving state officials to judge which political speech is acceptable and which is not is an invitation to trouble.

The lawyer for the Sons of Confederate Veterans argued that pretty much anything should be acceptable.

Even a license plate with a swastika? asked Justice Ruth Bader Ginsburg. Yes, said attorney James George. Even a plate with a call to jihad? Yes. Even a plate with the worst imaginable racial slur, wondered Justices Elena Kagan and Anthony Kennedy. Yes.

Beyond that God awful prospect lies another potential problem: a state official who injects his or her own beliefs into the decision — a fierce advocate for or against abortion, for instance.

Chief Justice John Roberts suggested a solution we've favored for some time: States "don't have to get in the business of selling space on their license plates to begin with," he said. "If you don't want to have the al-Qaeda license plate, don't get into the business of allowing people to buy ... the space to put on whatever they want to say."

That common-sense approach artfully ducks the First Amendment, while leaving drivers many other ways to express themselves uncensored by the state — bumper stickers, mud flaps, window decals and on and on.

Putting the state in the expression business on license plates probably seemed an easy way to generate extra revenue. Litigation costs, angry debates and resentful citizens say it's a big and totally avoidable mistake.

USA TODAY's editorial opinions are decided by its Editorial Board, separate from the news staff. Most editorials are coupled with an opposing view — a unique USA TODAY feature.

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