New York Times

WASHINGTON — The question for the Supreme Court on Monday was whether Texas had violated the First Amendment by rejecting a specialty license plate bearing the Confederate battle flag. As the argument progressed, it became clear that many of the justices were not happy with either possible answer.

Only Justice Antonin Scalia seemed attracted to the main argument advanced by the state’s solicitor general, Scott A. Keller. Mr. Keller said that all 438 specialty license plates available to Texas drivers, including one promoting a hamburger chain, are the government’s speech and thus immune from First Amendment scrutiny.

The plates feature universities and sports teams. Some send messages like “Choose Life,” “God Bless Texas” and “Fight Terrorism.”

Chief Justice John G. Roberts Jr. was skeptical. “Texas will put its name on anything,” he said. “The only thing that unifies it is they get money from it.”

Justice Ruth Bader Ginsburg focused on the burger shops. “Is it government speech to say ‘Mighty Fine Burgers’ to advertise a product?” she asked.

Justice Anthony M. Kennedy said the vast assortment of available license plates suggested that the state should not be allowed to discriminate among potential messages, just as the government may not censor only certain speakers in a public park.

“Why isn’t this a new public forum in a new era?” he asked, adding that “people don’t go to parks anymore — they drive.”

In 2011, the board of the Texas Department of Motor Vehicles rejected a license plate honoring the Sons of Confederate Veterans and including a Confederate flag. The board justified its decision by saying that many people found the flag offensive.

“A significant portion of the public,” the board explained, “associates the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”

Justice Ginsburg seemed troubled by the board’s criteria. “It’s a nebulous standard,” she said.

Justice Stephen G. Breyer, joined by Justice Kennedy, pressed Mr. Keller for the standard the state uses to allow some plates but not others.

“I just think you have to have some kind of legitimate reason,” Justice Breyer said. “It doesn’t have to be much. It could be just a little.”

But neither justice seemed satisfied with Mr. Keller’s responses, which were vague and abstract.

The veterans’ heritage group won in the United States Court of Appeals for the Fifth Circuit, in New Orleans. The court said the proposed message on the license plate was private speech and that Texas had discriminated against the group’s view that “the Confederate flag is a symbol of sacrifice, independence and Southern heritage.”

In the early part of Monday’s argument the group seemed likely to prevail. But some justices seemed to grow uncomfortable with the implications of a ruling in its favor, which could make states choose between having any specialty license plates and allowing all sorts of vile and vulgar speech.

Justice Scalia asked about “dirty words” on personalized vanity plates. Mr. Keller said a ruling against Texas would require it to allow such plates along with specialty plates celebrating Al Qaeda and the Nazi party.

Chief Justice Roberts proposed a solution. “There is an easy answer to that,” he said, “which is they don’t have to get in the business of selling space on their license plates to begin with.”

By the time R. James George Jr., a lawyer for the heritage group, began his argument, he seemed to have amassed a majority. But he took a hard line, and it may not have served him well.

Justice Ginsburg asked about swastikas, and Mr. George said they would have to be allowed. She asked about plates promoting jihad, and he misheard her.

“Vegan?” he asked.

On receiving clarification, he said yes to jihad, too, along with plates urging the legalization of marijuana.

Justice Kennedy asked whether “a license plate can have a racial slur.”

Mr. George said yes.

Chief Justice Roberts suggested that it might be possible to ban some especially controversial messages. “Someone driving in Texas with a swastika is, you know, likely to trigger public violence,” he said.

Mr. George did not bite. “I just don’t think the government can discriminate on content,” he said.

Justice Scalia said Mr. George’s answers suggested an agenda. “You’re really arguing for the abolition for Texas specialty plates, aren’t you?” he asked.

Justice Kennedy, who until now had seemed to be on Mr. George’s side, seemed to turn.

“In a way, your argument curtails speech,” Justice Kennedy said. “If you prevail, you are going to prevent a lot of Texans from conveying a message.”

Justice Breyer said there were other ways for the heritage group to say what it likes. “Put up a bumper sticker,” he said.