frederick we are now going further down the road of using a slush fund is not good for fiscal accountability. it is not good restoring faith of the american people that we can face the tough decision and not retreat to rhetoric and gimmickry that is not really true. ..

but i no that the chairman wants to face this head-on and i no it is a challenge and the political environment. and i did want to breed of that we obviously not met the challenge with the budget as currently configured. i want to specifically ask you general austin, something that was troubling to me. it has been a determination that operation freedom signal is a new contingency operation. do do you see it as a new contingency operation? >> it is a continuation of our efforts, center. so in terms of the types of things that we are doing we are continuing to train and advise and assist the afghan security forces but in terms of how we account for the funding that we are allocating to that that is a different issue.

>> well, the reason i am asking is i am told that there is an effort underway of naming a new lead inspector general in afghanistan as opposed to the special inspector general on afghanistan. i think if that determination is made i want to make sure everyone understands that will impose additional burden. i no there is continuity. i do not understand the value right now though changing inspector general. the projects are ongoing. the special inspector general in afghanistan is aware and working. i do not get it. if there if there is really a sincere attempt to replace him by labeling this new contingency some one we will have some explaining to

do, i think to me and two others on on this committee as to why that would be a good idea. are you aware of an effort to do that at this.? >> i am not aware of the effort but certainly i will find out and look into it. >> that would be terrific. we're working very closely with the special inspector general's in iraq and afghanistan. the body of work you have done is incredibly helpful to our nation's military as we look at how we honestly confront sequestration one of the ways is being better stewards of the resources we have allocated to these efforts. most of the servicemembers who deployed to africa as part of the ebola response have begun returning home. home. is there any effort to keep track of the number of contractors around this effort and how many of them have been told that how many

of them remain? >> yes, yes, ma'am, there is a very very strict accounting that is done with oversight from the dod ig from the beginning and are cognizant of the challenges with contractor oversight and paying too much money for contract which is out of line with the usaid as well as the host nation. >> we would love it if you would share that with our office. also, if you could share with us how many contractors have been in iraq as a result of our efforts against isil now we are back to counting contractors and would appreciate an update on that number also. >> i we will take that for the record. >> thank you so much. thank you, mr. chairman. >> thank you, gentlemen for all your service. i no you spend many years

down range. i want to return to the topic senator mccain was addressing about our airstrikes. to understand you correctly to say there are now no iranian forces? >> they are isaf forces special operation forces, and federal police. as of this morning when i checked my commanders the shia militia and pmf have pulled back. >> by pulled back, do we mean they are still militias in the vicinity? >> i am sure they are still in the area. there. our forces probably on the east side of the river. as you know the city is on the west side of the river. >> we know the whereabouts?

>> to my understanding my last update he was not in the area. >> in any way and we implement the fire patrol masters to ensure we don't strike any of the shiite military forces or iranian elements in the area? >> we certainly have -- we have caused the iraqi security forces to develop a scheme to maneuver that can effectively accomplish a mission of clearing the town. our fires are supportive of that effort, and so we are focused on that. we we always do everything that we can to ensure that the -- there is not excessive collateral damage but our focus is on the isaf forces we are supporting.

>> would you consider it collateral damage? >> i would consider that unintended consequences. >> does he have freedom of movement within iraq? >> i believe he does. >> general six months ago president obama cited an example of the success of counterterrorism strategy. do you believe it is a success story? >> certainly with the draw of forces over the weekend it has put us in a different posture for particularly against the threat we were focused on. so it is much more challenging today than it was when we had people on the ground. >> general austin, do austin, do you consider it a success story today? >> certainly it is a troubled country today with the challenges it is facing

and the activity. i i think the country is in turmoil. >> general austin, approximately ten austin approximately ten months ago the president released five taliban commanders in exchange for bobo doll who yesterday was charged with desertion by his chain of command. i believe the house arrest agreement expires in two months. is that correct? >> i believe that to be correct, sen. >> do you know what we will happen to those taliban commanders? >> i do not. >> well will they have freedom of movement inside and outside? >> i think we would have to

consult the government and the elements in our government that are charged with monitoring the movement of these elements. i cannot answer that. i can take it for the record and try to do research. >> i would i would like to get an answer for that for the record. >> i will address this to general austin and rodriguez , given the situation in yemen if there were action by militants there to block the straight, i presume that american forces would immediately asked to reopen that? >> we would work in conjunction with our gcc partners to ensure that those straits remain open. it is one of our core interests to ensure we have free flow of commerce to both straits. we also work with both the host nations of africa as well as our european partners to support those efforts. >> thank you gentlemen. i you, gentlemen. i appreciate your answers and service to our country.

>> for the record, i would like a response to sen. cottons question. do you consider human a success story are not. yes or no. >> it is currently not a success story. >> it is not a success story today. >> thank you very much. >> when the pres. made that president made that statement he was talking about antiterrorist efforts, was he not? >> i believe that is correct >> he was not talking about yemen itself. he was talking about the success of counterterrorism. naturally the counterterrorism. naturally the deterioration of the system has compromise that. my question is how much has a compromise it? is that in the billions pending the dust settling in yemen? >> i think right now we will be doing work in conjunction with headquarters and our

other partners to look at how we regain situational awareness and an understanding of what is happening on the ground and we can continue to address the threats that emanate. >> thank you. i would like to briefly associate myself with the comments. it obviously does not go to the base budget. it is unpaid for. it is is just absolutely the wrong way to approach this problem and i hope that the congress can find a more realistic and responsible solution to sequestration. also, again because you talked to senator donnelly about this is in like seemed like it is critically important that we use the leverage we have which apparently was used in the battle. be sure that this is not a shiite militia led offensive if this is a war we have

lost. this has to be inclusive command i hope your relationship with the president and government emphasize that because it is essential to a successful outcome in iraq. the advantage. would you agree with that? >> i would. i would say further can i take every opportunity to emphasize those exact points to the leaders when i engage >> it sounds like this airstrike in the last couple of days were conditioned on that kind of consideration. >> this operation had to be under the control of the government wants the city is

cleared to maintain stability in the city and that force is to be an iraqi security force. so those things, those conditions were met early on in terms of the synchronization. so we were able to provide support. >> you can argue a lot of the problems are because of the government's failure to be inclusive. let's turn for a moment to afghanistan. we heard a wonderful strong, passionate speech this week. i i am concerned that we are still in a calendar driven status in afghanistan. even even though the president has allowed troops to stay through 2015 we are still talking about kabul only. do you believe that is going

to be sufficient in order to support the afghans? we have made such progress there. i would hate i would hate to see us pull out in terms of air support, authority for support and training and direct services. give me your thoughts on that. >> i certainly agree that knew leadership in afghanistan causes all of us to be encouraged and optimistic, and i think from what i have seen both president donnie do and also the ceo of dollars in terms of reaching out to the international community, in terms community, in terms of reaching out to the folks in the region as well it is all encouraging, the relationships with the security forces the supportive security forces, the statements of common goals with the us are all very encouraging. this gives us opportunities knew opportunities that we did not have before and we

have to think about what we want our relationship to be with afghanistan going forward and what it means for the region. >> i certainly hope you will counsel the white house to think seriously about what i would consider a modest additional investment to maintain the tremendous gains that have been had. had. it is not for sure that the regime in the government of afghanistan can withstand the taliban on their own. five minutes of midnight and see it all collapse would be a real shame. i hope you will learn is that on the policymakers based upon gen. general campbell and the other information you are receiving from the field. they need not only those troops but authorities. that will be crucial. carry that message.

>> thank you, mr. chair gentlemen, thank you for being here today and also to your staff. thank you for your many years of combined service. general i just want to mention in your testimony today, i would like to thank you for mentioning not only our active-duty forces but the reserve and national guard components. it's all one team one fight. i appreciate you acknowledging that today. something else you brought up in a couple others have mentioned is stressed stress and suicide with our active-duty members and our veterans those that have gotten off of active-duty. it is important we continue with resiliency programs and making sure not only are they physically fit for the fight but mentally fit as well. thank you for bringing that forward. a number of us are working on initiatives.

i would like to address my question and thoughts. last week was the 12th anniversary of our entrance into iraq. we have had 4000 4000 american servicemen and women that have lost their lives and we've had a number -- another 40,000 that have been injured in that war. and i want to thank you for your service and that war. all of you have engaged one point or another. many of our servicemen and women we will come home with not only invisible injuries but physical injuries that will impact their lives were many, many years. before we ever entered into iraq on march 20 2003 the iraqi kurds were already engaged and preparing the battlefield before we ever

got there. they have been an important part of our effort. and so i would like your thoughts on more involvement what there have been from 2,003 forward. we probably now with the elements. we went in back in -- 12 years ago. i did not initially make it all the way up to curtis ten very instrumental. most recently with their efforts in the current fight

they really have done a terrific job. i have talked with president barzani and his staff on numerous occasions on what we're doing with the requirements were and what they needed to. as they look at what they had done in terms of actually inflicting damage i think their efforts have really shaped this overall fight in a positive direction. they continue to do more on a daily basis. i would only add that a key part of the relationship has been the long-term relationship with an. they were a key partner with saw forces we were there from 2,003 for 2011 and

helped us address a variety of networks. i i believe that the great and enduring relationship we have had from a soft forced to kurdish force aspect really was one of the initial successes we were able to achieve when we went back late last summer. we we were able to quickly renew relationships, drawn partnerships, and get going quickly. to me that highlights the importance of that long-term relationship we have been able to develop. >> do you believe our resources would be best utilized if we were directly arming the past murder? >> that is a policy question i think they i think they would make good use of any resources that are provided. >> i think they have been an exceptional force and ally to our american forces in that region. to your staff for being here in support. thank you.

>> thank you. thank you to the witnesses for your strong testimony. i want to begin with yemen. i was intrigued with the account in news this morning about the saudi and other action in yemen and in particular the number of partners that have been part of this in addition to saudi arabia, bahrain, qatar, uae, jordan, morocco press reporting that egypt is involved and little surprisingly pakistan and sudan, some nine nations spring into action to deal with this threat of the takeover. i am gratified by that and want to see a region that we will stand up and deal with its own problems rather than telling us quietly that they think it is a problem and not doing anything. i was struck by the fact that those nine nations have not come together. they are involved but they

are not acting with dispatch even nearly a year in to the accelerated taking of territory. just as experts who has spent a lot of time the region what explains why these nine nations would react with such speed and force to the takeover but not be engaged in the fight against isil? >> sir like sir, like you, i am very encouraged by what we have seen recently with a number of nations coming together to address the problem. the core of these nations are gcc nations. i certainly believe that they all think that yemen is a very critical piece of real estate based upon geography. most important, it shares a border with saudi arabia. i think the gcc countries

are naturally predisposed to helping protect another gcc country. country. the relationships between the saudi's and egyptians and others are driving their participation. i would remind you you are very well aware of this but the night that we flew into syria for the 1st time we had five sunni arab led nations fly in that formation with us which is unprecedented. we continue to see them offer support in terms of material support and they have offered to train and equip forces but throughout they have remained in terms of flying strikes against syria so they have participated. as they begin to focus

naturally because of resources we will probably see less of an effort in syria. >> you indicated that you thought in response to earlier questioning that isil was our most pressing challenges but iran was our greatest long-term challenge a possible a possible explanation for the force of the action against human all of these nations believe iran is the more pressing challenge and don't think of isil as the pressing challenge. >> i i can attest to the fact that they do see isil is a pressing challenge. a big driver here is that the geography associated with this yemen bordering saudi and oman and clearly a direct threat to their homeland. >> each of you work in the military wayne but with

partners. aig, doj dea, dhs, the intelligences. there have been questions about the effect of sequester but would you not also agree that to the extent sequester affects your allied agencies that you work with that that is also an aspect of sequester that we need to take seriously if we are trying to avoid challenges to our national security? >> i agree, sen. >> i do, do, too, senator. >> i definitely agree, senator. >> general, the attack was particularly troubling. a small country but kind of a bright spot in terms of how this come out of the arab spring with the constitution with islamic parties participating in democracy, even stepping back from power. what has your observation been about the tunisian

government newly formed for newly elected governments reaction to the terrorist attack at the museum what is your assessment of how they are going forward and how we can help them succeed? >> their response has been effective. the military institutions are strong. it it was a stabilizing influence that they went through that transition command we continue to work to build capacities with some of our interagency partners, those elements were involved in the effort command we continue to share intelligence with them, and we will continue to build up their capacities and ensure that they continue moving in a positive trajectory. >> thank you. thank you, mr. chairman. >> thank you, mr. chairman gentlemen, thank you for your service. i wanted to let you no ten years ago as a marine corps

major i had the privilege of serving with general austin. one of the finest officers i have ever served with. i am heartened he is and this important position. >> not generally nice to marines, so i like to hear that. >> i see he has one on his staff keeping in full tradition of centcom respect for the marine corps, i appreciate that. >> general, i want to ask you a question relating to some clarification. something i think is important for us in the congress in the military and administration is to speak with language that gives our citizens a sense of what is happening. one of one of the things that you hear a lot about now, the president and administration talks about winding down combat operations combat operations are over we have

ended combat operations in afghanistan. that has been stated several times. but you also mentioned we have a robust ct effort. so are we so are we kind of speaking out of both sides of our mouths? 's and a robust a robust effort the very definition of combat operations? .-dot we still have combat operations going on in afghanistan? >> thank you for that question. we are obviously supporting our afghan partners. what could be termed as combat operations have their efforts. to the 1st to the 1st part of your question with respect to counterterrorism counterterrorism as we pursue this is not just a kinetic aspect. >> but it is kind of the epitome of combat operations. aren't american soldiers when conducting combat operations in afghanistan or counterterrorism operations,

isn't that the definition of combat operations? they are going in with weapons and killing bad guys, correct? >> we are not doing that today. >> there are know ct operations? >> there are, but they involve not only helping and enabling our partners who are helping us the conduct of discrete action that we are taking like kinetic strikes that are specifically against threats and then how we address the overall ideology and narrative aspect. >> ct operations are not members of the us military in action? >> right now today we are not putting people on unilateral us operations against forces on the ground in afghanistan. we are supporting our afghan partners as we get at those and doing other operations

related to those networks. >> okay. again, i think that clarification is important. it seems to me if we have special forces operators afghanistan in direct combat we should let the american people know. if you are saying that is not the case that there is no combat going on no sf actions, direct actions against al qaeda operatives. >> i am not saying there is no combat. there is no there is no unilateral us combat going on. we are working through partners, and when we do operations on the ground. >> do we have j tack on the ground? >> they are operating at command-and-control locations. >> but not on the ground? >> not accompanying forces

doing operations. >> you mentioned the whole of government approach with regard to isil. i appreciate that and the fact that you are focused on military aspect. what are the other instruments of power we are bringing to bear with regard to american power with regard to isil? you mentioned it in your testimony. what is it? i no it is not your round that you are responsible for, but it will be heartening to know what instruments of american power we are integrating into the fight with regard to defeating isis. >> a couple of important things must be done, as you know, in order to defeat this enemy. the kinetic pieces one issue, but you have to do some very constructive things to begin to cut of the enemy's ability to resource themselves.

countering threat financing is one issue and stopping the flow of foreign fighters or slowing down the flow of foreign fighters. both of those issues have to be worked by our whole of government in conjunction with other countries not only in the region but internationally. also there is a requirement or need to counter the narrative. i think that we need to do more. there are there are initial steps that have been taken to begin to do that but there is a lot of work yet to be done. >> thank you. thank you, mr. chairman. >> thank you, chairman, i want to thank the witnesses for being here for what you have done for our country. i wanted to ask general austin again a couple of questions about yemen. senator mccain pointed out in addition to the saudi's they're were nine other

countries participating in this coalition to assist. just to just to be clear, we have been obviously participating state department side on negotiations with iran very intensely for the last year at least. during that time what has around been doing? in part prompting the saudi's and others to engage in this. >> certainly iran has been enabling the activity as they have done what they have done. i would go further to say the iranian desire is to be a hegemon in this region. >> meaning regional domination. >> right.

as as it seeks to increase its influence in various countries it does so through the reach of the shia populations in this country's. that won't allow iran to dominate any specific country, but what it does do is increase sectarian tension and thereby serves as a destabilizing effort. >> let me be clear. we are talking support. i no you are familiar. we are talking about money and arms. we're not just talking about how we support you because you are shia. we are talking about actual support. >> yes, senator. again, through the shia -- >> through their proxies the

given the money and arms which is undermined our interest to try to deal with al qaeda. isn't that right? >> yes. >> the other thing i wanted to ask about his bahrain. is by rain. we have an important partnership, do we not? in fact we have the location of the united states 5th fleet. >> that's correct. >> what is iran doing with regard to the bahrain government right now which is a sunni government. as i. as i understand it, they are trying to destabilize that government which would threaten our interest there. >> correct. we see the same reach which increases sectarian tension and increases sectarian tension and serves as a destabilizing effect. >> which obviously it is a different country than yemen, but a similar playbook.

>> it is a similar approach. obviously there very different countries. >> yes. >> but we need to be clear with the activities of been. as i look at your testimony one of the things you pointed out is that iran routinely engages through the threat network. they are engaging in activity to support a party actors which threatens the sovereignty and security of israel which has been going on in addition to undermining interest in yemen. >> that is correct. >> so this is obviously as we look at the issue of the attempt at regional domination this is a deep concern long-term and short-term in terms of how the region can be

destabilized further. >> there is a significant concern for long-term effects in terms of this type of behavior destabilizing the region and having effects on other parts of the globe as well. >> and it could further fuel a sunni shia fight if they continue their efforts toward regional domination would you agree? >> i would. >> i just want to comment as well senator cottons question about the status of the taliban five. i no you will get back to him on it, but i find it shocking the fact that you are commander of afrikaans and the state department has not already coordinated with you. it is not putting this on you. my.is the fact that we have these -- you are the commander of centcom. these two countries it would

seem to me that he would be, i would hope, most closely consulted on this. i am kind of dumbfounded that they are not consulting you and the does not appear to be a plan. i look forward to the follow-up to this a ministration. it seems to me the commander of centcom needs to be brought into this in terms of the five potential commanders that could get back on the ground in afghanistan and threaten our troops. >> thank you mr. chairman. thanks to all of you here today and the men and women who serve under your command and all that you do to help protect us. last year i expressed some reluctance regarding the

syrian train and equip program based on concerns that any legal assistance we may provide might end up inadvertently or in some cases perhaps purposefully end up in the hands of some of the very extremists that we are attempting to fight against. that could possibly fuel further violence in the region. while i believe that the servicemembers under your command in the process of executing this program are the most skilled in the world i what they do. that that is really what gives this program the best chance of success. the losses of you has provided by the iraqi security forces last year and in yemen this year are stark lessons that the fluid and volatile nature of the middle east can compromise even our best laid plans. i i am further concern that for this program to have the

best chance of success the united states will need to become more militarily involved in this conflict that many americans may realize. sec. carter stated recently when referring to the force we train and equip in syria that we will have some obligation to support them after they are trained yet we do not know what that support would look like, nor do we know what the costs associated with that would look like. this this program is part of the administration strategy to address the isis threat and should be fully and openly debated so that the american people might have a say in how their military forces are used. since this program was conceptualized it was reasonable to expect a situation in which syrian rebels we are might face a larger were better equipped army larger or better

equipped enemy. why was the decision made before determining whether the united states would provide for the protection or support for the troops was they were trained and equipped. we will need an element on the ground. to to complement the work we're doing with our fires to begin to counter isil in syria. my best military advice as we go forward is as we introduce forces that we have trained and equipped then we should provide them support, not only looking to provide them fires but logistics and intel support as well. i think that i think that

gives them the best opportunity for success. >> do you think that the forces of aside in syria will attempt to task some of these opposition members we have trained and equipped? if so what level of military involvement should we expect? >> the likelihood that that can happen. we will try to as we put forces and. they are focused. that is the 1st task at hand. again, if they are attacked we should protect. >> what do we do if the forces that we train and equip end up attacking? >> initially that is not

what we are focused on. we will discontinue providing support to those forces if they vector off and do things that we have not decided to do initially and asked them to focus on initially. >> do you think the success of the opposition groups do you think that will require a new governing structure? if so, with the so, would the us military be involved in helping to facilitate that change? >> i think i think eventually forces will need to plug into some type of structure for sure. for sure. again, that is not what the military typically does, but this is a whole of government approach. >> thank you. >> general, i would like to follow up. these people we are training

if they are attacked we're not going to protection? are we going to protect them? >> my recommendation would be that we protect them no matter who is attacking. we have to protect these forces once we have trained them and put them on the ground. >> are we going to have any provision to protect them? >> we currently do not have that policy decision but as i -- >> so we will train them to go back into syria, and if they get beryl bombed we don't have a policy as to whether we protect them or not? >> currently that decision has not been taken. >> then why are we training them? >> i am hopeful that we will be able to tell them that. >> i am hopeful, too, but hope would hope really doesn't stop barrel bombing. can i ask you again when it

is that the saudi's notified you that they were going to begin attacks in human? >> sir i had a discussion the day of the attack. it was not much before that they actually started the attack. >> isn't that quite a commentary on our relationship? they would literally the day of their attacks they tell you that the united states of america that they are going to launch a major can think. really a fantastic indicator the deterioration of the trust and confidence that these countries particularly saudi arabia has an us and authenticates what has been quoted quite frequently the some people

believe it is better to be an enemy of the united states than a friend. this is really quite remarkable. again i do not know how you recruit young people to fight and tell them that they are going to go back into a country and not have a policy a policy and whether we are going to protect them or not. that is immoral. it is not only unworkable it is unworkable, it is immoral to tell people come to not be able to tell them if we train and equip them to go in and fight that we have not yet got a policy on whether we will protect them are not. i would say that that would also be something of a disincentive for recruitment i hope for the sake of these young people's lives that we are training now that we at least have a policy decision as to whether we will protect them are not.

of course the best way to do that is with a no-fly zone which has been recommended years ago without any result from this president. >> thank you. i want to follow the chairman's line of questioning. what do what do you believe that the strategy is for this new campaign? what is the ultimate goal? >> i do not know what the specifics of the saudi's goals and objectives are. i can tell you that they are interested, number one, and protecting our homeland. they have a border with yemen obviously. and also that they receive requests from the president of yemen to help with military assistance. >> what advice have you given or will you give the

president about what our role should be? >> our current position is that we will help the saudi's with intelligence and logistics and planning support and again they are great partners and very much appreciative of the help that we will provide the. >> what is your assessment of the likelihood of success? >> in human? >> yeah. >> we don't know the specific goals and objectives. i would have to know that to be able to assess the likelihood of success. >> i do hope you get that information sooner than later. more than 500 million in us military assistance can no longer be accounted for. women -- we must have bigger accountability.

how do something like that happen? what steps should the us be taking to protect or prevent losses like that in the future? >> so the $500 million, as i understand it the amount of investment over eight years that we have made. the military forces, security forces build capacity. this not only includes materials but training. as you know training can be costly. when we are there we have the ability to monitor how equipment is used. the embassy is no longer there and does not have an office of security cooperation that would typically do these things. we don't have that ability currently.

if we have the opportunity to go back in and partner with a knew government or a government then i think that will be one of our focus areas. >> given that they are still in control how do you believe we should do with al qaeda in the arabian peninsula given the state of yemen? >> thank you, senator. as we have done and will continue to do in every case where we do not have people on the ground but there is a threat that we need to be concerned about we will use every intelligence collection capability available to us to continue to monitor what is going on with the extremist network. we do have resources that are in the region that we can use to apply to counter this network once we have developed the appropriate

intelligence. >> and what do you see as the presence in the region? will that be affected by the state of yemen today? >> if i could ask a question get you to ask that question again i missed a peace of it. >> how do you see the threat of isil in that region? >> it is the most pressing threat. >> in yemen. >> in yemen that is undetermined. the most recent attack was attributed to a isil element in yemen but i think the intelligence agencies are still working their way through that to determine the veracity of whether or not this is a hard-core isil

element or someone claiming to be isil or what this really is. clearly aqa p is dominant. whether or not whether or not they can coexist is left to be seen. >> thank you very much. >> i think the witnesses. >> to follow up on something that was just saidreaking news alert that egypt and saudi arabia have begun a ground encouraging into yemen. that you have advanced notice of this? >> no i did not have advanced notice. >> thank you. >> quite a commentary. this hearing is adjourned. [inaudible conversations] [inaudible conversations]

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[inaudible conversations] >> tonight on the communicators more from the international consumer electronics show. >> throughout your day if there is something you just take it off. it will be simple and expand you will literally just toss it. completely autonomous. no remote required. smart enough to know the direction you tossed it. if it is a gentle toss it will stay close. if close. if you throw it, it will go farther away. it can work completely autonomously. >> tonight at 8:00 o'clock eastern on c-span2. >> book tv in prime time tonight and the focus is

congressional authors. senator john mccain and his book 13 soldiers a personal history of americans of war. at 950 new york democrat steve israel talks about his work called the global war on morris.

>> this weekend the c-span cities to her has partnered with cox communication. >> most famous. he was very much more than that born in 1912. we we are proud to have his work back in oklahoma where we think it belongs. he was an advocate for people who are disenfranchised those people who were migrant workers. in california literally starving. a vast a vast difference between the haves and have-nots and became there spokesman through his music. he he recorded very few signs of his own.

we have a listening station he did make so significant. >> this land is your land this land is my land from california to the new york islanders. >> watch all of our events saturday at noon eastern on c-span2 book tv and sunday afternoon at two on american history tv. >> the texas chapter of a group called a group called sons of confederate veterans applied for a specialty license plate with a design that featured the confederate battle flag. the state rejected the design saying many people find the confederate flag offensive and racist. the group sued for and last week the us supreme court considered whether the license plates of government

speech, in which case the state can't can refuse the license plate request or speech on behalf of the driver of the car, in which case taxes must allow the plates. >> your argument 1st this morning in case 14144 john walker versus the texas division of the sons of confederate version. >> thank you mr. chief justice, and may it please the court. messages on texas license plates our governments beach. the state of texas edges its name on to each license plate and taxes law gives the states all control and final approval authority over everything that appears on a license plate. texas is not a bridging any traditional free-speech rights. voters remain free to speak through a bumper sticker or window dekalb, but the first amendment does not compel any government to place its into monitor on the buttered battle flag on its license

plate. >> it's nebulous standing would be regarded as offensive to many people. is it government speech to say mighty fine burgers? ..

people could put a message of their choice would that be government speech? >> the portion that the government had final approval authority and sole control over that would be government speech. i the government doesn't have sole crowell or final approval authority over another portion, think that -- >> the for has the same kind of approval authority that it has here. it will allow people to say inoffensive things but if they say something that is offensive, they won't allow that. that would be government speech? >> it would be government speech, under the best reading of joannes together, you have final approval authority. but even -- >> i'm sorry. i don't understand. almost anything the government does it has final authority to veto. whether it's a school or a government web site. it always retains the authority to say no. the issue is, when can it say no? the constitutionally?

so i decent think it's nearly that. and inin suma the government created the words being advertised. so, isn't that substantially different because the government's not creating these words. >> justice sotomayor, in suma the court -- >> that the monument case. i'm talking about johannes. >> that's right in suma, private organization, the fraternal order of eagles, it put it name on the monument and then donated it to park in johanns the government created a prom to espouse the message, above is what's not dinner but even then, the secretary of agriculture did not write ad copy. so it's not as -- the government had control, just was not at every step of the way saying, this is how the message must be. but the end of the day had final profit authority. about to return to justice

alito's hypothetical and what the test should be, the test can include other elements and even if sumaa and johanns could be read as two-part test, for all sorts of reasons this is government speech. texas has its name on every license plate. there's a formal pros here of notice and comment and the board takes a public vote before approve anything special license plate -- >> do you want us to hold that because it's government speech, the government can engage in viewpoint discrimination? is that what i'm supposed to write? >> that's, justice kennedy, and the court recognize that. >> does that have any limits? pose somebody submitted a lion license plate to six that said vote republican, and texas said yes, that's fine. and then the next person submitted a license plate to texas and it said, vote democratic. and texas said no, we're not going approve that one. what about that? >> ity kagan don't think our

position would allow that. >> i would wouldn't it -- >> the establishment clause, the equal protection clause other independent constitutional bars could aemploy. >> this is not an establishment clause issue. i'm curious what constitutional constraints you think there are, and how they would play out as to the kind of hypothetical i just gave you. >> absolutely, justice kagan partisan speech, candid speech at jew citizen stevens concurrence in suma and justice -- the could be other bars the oregon supreme court -- >> all you have to say is whatever prevents texas itself in all of its other activities never mind license plates -- from saying, vote republican. right? >> absolutely. >> the same question. what stops texas from saying -- look at the election literature. vote republican. i think something prevents that. and whatever prevents that will

prevent it on the lance plates, too. no? >> that's correct, justice scalia, which is why the issue is one of government speech in general. the court has recognized unanimously the government can speak, the government's speech doctrine -- the government can speak even if it takes certain viewpoints -- >> what case do you want me to read to to the that the government can engage viewpoint discrimination when it's is own speech. the monument case? >> justice,end kennedy. suma would be the best example. >> is this a case where the state, the government has aided in creating a new kind of public forum? people don't go to parks anymore. if the government bought 17 soap books to put around the park, that's government property but the government can't prohibit what kind of speech goes on there why is this a new public forum in a new era? >> i don't think it's a public

forum for private speech. the court has never reek recognized a public forum for private speech when the government puts it its name on the message receiving notice and comment -- >> that's circular. the whole question is whether you can control the message. assuming the answer to the question. >> justice kennedy, i think thecourt has looked at governmental intent to determine whether there's a public forum for private speech, and for all the reasons we're pointing out this is government speech it is the flip side of why a public forum has not been created. so, i'm not quite sure -- >> i'm not sure why it's government speech since there's no identifiable policy at least it's arguable, that the states articulating. the idea is to get me money. >> mr. chief justice, singular message can be part of any test for government because government must speak in all

sorts of ways. the court in suma indicated the 352 structures in new york central park were all government speech and yet the -- it's a wide array of message such at alice in wonderland. >> here you could have conflicting message. what is the government policy between allowing university of texas plates and university of oklahoma plates? >> the state of texas can absolutely promote the educational diversity of citizens. >> what's the policy between permitting mighty fine burger plates and pretty good burgers plates. [laughter] >> mr. chief justice as an austin texas establishment, the state of texas, if it wanted to could promote that message. even if mighty fine burgers weren't a texas establishment texas is allowed to endorse speech and just because it would be generating -- >> it's endorsing speech? >> it is the government's speech. the analogy would be an endorsement of such as professional thief. if a professional athlete, for instance, places a logo or

product or otherwise on some apparel that the athlete is wearing, that's still the speech of the athlete. >> right, but the athlete doesn't advertise nike on his jersey and adidas on his shoes. you can see one message that athlete is endorsing this plan. texas can put its name on anything, and the idea this is their speech the only thing that unifies it is they get money from im. >> mr. chief justice -- >> it would if it could. >> the state of texas does not put its name on everything. it follows a formal process with a public vote -- >> you told me yourself, you began, you said its name i etched on the lance plate. >> every message on the license plate, yes that the state's message. >> how many of them are there? >> as of the beginning of this month, there were 438 specialty plates 269 of which were available for general public use. >> how many have you disapproved other than this one? >> we addressed that argentina. in our replea brief, pains 9 to

11. texas agencies have denied about a dozen plates. some of that information is in the record some is not. >> what other ones have you disapproved? >> the boards predecessor denied a pro life plate. the board itself denied a texas dps troopers foundation plate and the board's predecessor denied a does other plates. also -- >> on the ground of offense? >> the information is not clear as to what the grounds for those denials are. the legislature itself has repealed multiple special plates that were credited. >> could i ask mr. keller, of you good down to texas and just stare at license plates, are most of them just the standard license plates and then these 400 license plates you see rarely, or do most people actually have one of these specialty plates? >> well, there's a wide range of -- i believe most plates are still the standard plate.

>> but there's a substantial percentage that are not? it's not by any means unusual to see a specialty plate? >> it would not be unusual to see a specialty plate in the state of texas but the state of texas, by etching its name on it, can keep control of what appears on license plates. still the state's message. >> what is the limit of this arguement? that what concerns me. your answer to my billboard question was disturbing but suppose people still did good to parks and the state had an official state soap box at the park, and every once in a while a state official would mount the soap box and say give some official state announcement, but other times people who paid a fee would we allow goad up there and say something they wanted provided it was approved in advance by the state. would that be official state speech? >> i think we're starting to cross over interest a situation

what is called a subterfuge. if you are abridging traditional free speech rights and limiting access to a traditional public forum, the government speech is crowding out public speech. >> why hasn't this become traditional? i don't mean to interruptity alead to -- alito because over on the same point. >> i don't think it's become traditional because texas has always maintained control over its plates and always exercisedder toal control. so unlike a park, which has been held since time immemorial for the benefit of the public. >> you want us to say the public fora do not evolve? people don't go to parks anymore. they drive. >> justice kennedy, absolutely. the public traditional public forum can evolve over time, about the indicia of a extra digital public forum has to be

one that is open and texas has not open license plates dish. >> in a world in which you have approved 400 license plates and they're common in the state of texas and you have on disapproved a very select few it does seem as though you have basically given, relinquished, your control over this and made it's people's license plate, for whatever private speech people want to say. >> justice kagan, it would be odd to say it's private speech when the board is taking a public vote and receiving notice in comment. governmental function when the government wants to act and then placing its name on the license play. when the government is placing its name on the license plate it is accepting and signifying this is the government's message, and you have -- >> does it have notice and comment for every one of the 430 that is approved, every time there's a request? >> uh-huh. >> there is a notice and comment

proceed schnur. >> if it's a legislature created plate, the legislature could do it and then there wouldn't be an agency notice and comment proceeding. under existing law, notice and comment would be required for every specialty plate approved by an agency, which i all specialty plates that are not approved by the legislature. >> i think a good analog to this case would be the u.s. postal service's postage stamp program. the u.s. is placing its name directly on the medium thousands of stamps have been issued in the past and yet there's also private input allowed on what the postage stamps will look like and just as respondents can speak in all sorts of ways on a bumper sticker right next to lance plate or in the envelope on which a stamp would appear that doesn't mean that someone is allowed responsive speech to whatever appears on a stamp or whatever appears on a license plate. >> does texas also have specialty plates insofar as the letters or numbers of the plates

are concerned? i mean, can you get a license plate that says hot stuff, or something like that? >> justice scalia we do have personalized plates in texas. >> and are those censored? can you use a dirty word on those? >> the speech there is controlled completely by the state of texas. texas -- this is not in the record -- >> even though the individual selects hot stuff of whatever other message, so i guess if this is not allowed, we can't allow that, either. >> yes sir. >> right? dirty words, people are entitle eled to use dirty words. >> that's right. the court's holding would directly affect personalized plates. and -- >> i'm not sure your analogy to the postal service works because none of us can imagine the postal service having commercial advertisements on its stamps. a license plate from re/max reality. not going to see that on a postal stamp. >> mr. chief justice it may be

true the u.s. postal service has not chosen to engage in that type of expression but i don't think that defeats the fact that this is still government speech. for all of the indicia the court recognized. even justice souter's dissent in johanns and was looking for government disclosure, we have that here. we have texas' name on the license plate. also 'up tenable consequences can fall from an opinion recognizing that texas has to offer responsive speech. texas should not have to allow speech about al qaeda or the nazi party because it offers a license plate -- >> they don't have to get in the business of selling space on their license plates to begin with. if you don't want to have the al qaeda license plate, don't get into the license of allowing people buy their -- the space to put on whatever they want to say. >> mr. chiefity that would be an answer to all the government

speech cases. uma the confident didn't save if you don't want to accept the monument, don't allow monuments. so the government allowed them to select the messages its wants to promulgate and is allowed to supreme -- >> might but because they've done that since the time of the pyramids or whatever. but they haven't had license plate messages since time immemorial. so maybe that's why they shouldn't be considered just like the monuments. >> mr. chief justice, don't mean to suggest they're just like the monuments, but it's still a fixed medium and a tangible message is being displayed to a captive audience as the court recognized in those situations the government is entitled to select the messages it wishes to promulgate and are -- >> i'd rather have the plans plates than the pyramids. don't know we want to drive texas to having pyramids. >> ity scalia, we also want to retape our -- retain our license

plates. >> shows what this case is about. the respondents want texas to place its stamp of approval on the confederate battle flag through license plates and texas doesn't have to make that judgment. >> i don't want to beat a dead horse. what the best distinction you can give me between what you do with license plates and billboards, soap box and official state web site where people can put up a message they want subject to state approval? if we were to write an opinion that tried to draw a distinction between the license plates on one side and other things on the side what we say? >> texas has its name on it. i'm not sure the $. >> texas has its name on all ethe things too. >> in this situation we have exercised selectivity and control as my previous answer addresses that. all, we market this program to the public saying specifically that no one is entitled to

whatever design they want. rather the board of the legislature has to approve it. this is not a situation where out in the world, if you are to see a soap box in a park, that you would wonder is this government speak organize not the government speaking is the government abridging free peach rights? this is a case where texas maintains control what is says on the license plates and arch remains free to speak. speeches leafletting -- >> i don't think you answered justice alito's question. in every park you need generally a permit to do certain kinds of speech so the government controls that permit process and tells you that it can say no. so why is that different in the situations that -- it can't be merely control. the ability to veto.

that would then give you the ability to veto -- you could create a program in every public forum that controls in the same way. >> justice sotomayor, there's a difference -- we need to be clear about what approval means. if approval men's access to a forum and it's not government controlling every word of the message, i development think you have government speech. if it's simply -- >> we held that you can deny access to a park or to a forum on the basis of the content of the speech? >> justice content based regulation -- >> denying access on the basis content. that's a different situation entirely. >> justice -- that its correct. we are denying access. >> mr. keller, one of the concerns that raises -- and this goes back to what justice kennedy said -- is that outside the traditional area of streets and parks there's a new world, there are all kinds of new

expressive forums being created every day and as those come into play, as long as the state says hey, look, we're going to regulate everything for offense we're going to keep anything offensive out of this expressive forum, it does create the possibility that in this new world with all these in kind of expressive fora, the state will have much greater control over its citizen speech than we have typically been comfortable with. >> that's right, justice kagan for all of those reasons a narrow ruling in this case would possibly be a beneficial way to go. >> do you know if nye expressive fora that are opened by the state that are manufactured by the state that have the state's name on it as license plates do? i mean, if there a lot like that, i wouldn't really worry. but i don't know of any others. do you? >> no, justice scalia.

>> what can you tell me to help me which might not help others, that i don't think these categories are absolute. i think they help but they're not absolute. so i would ask the question first, this isn't government speech, in common english. it is the speech of the person who wants to put the message on the plate. the plate is owned by the state. the state says we don't want certain messages to be displayed. and my question is, why? why not? what is the state serving by keeping it off the plate. >> the state's interest is selecting the messages it wants to -- >> i'm sorry. then you have the republican example, democrats. not every interest is a justifiable interest. some are not and some are. theft why i ask my question. they keep some off, and they let some on.

what is their interest, which are the runs -- i'm asking a factual question. why if they kept off the ones they kept off while leaving on the ones they left on. they have no interest at all in making such a distinction, think since speech is hurt a little, they ought to lose. but if they have a justifiable interests, since you can put the bumper sticker next door think they win and therefore i'd like to know what their interest is. >> the state of texas' interest is propagating message that show a diverse background, educational backgrounds, products of texas -- >> yes -- >> texas likes each interest they athrough be put on their license plate. they like texas hamburger joints and probably would not approve a chicago hamburger

joint being on the texas license plate. they like some of these messages. others they don't particularly like. am i right? >> i'd like to get my answer. i am asking you what is the interest in texas and why does it keep off the messages it keeps off? >> in this particular example d. >> no. not just this example. there are set of things they've kept off. why? >> ity breyer -- >> a general rule. i think thity is asking you for a specific -- the justice is asking you for a specific. why would you -- >> i'll use an example of the texas dps troopers foundation plate that was denied there texas didn't want that on the license plate because it was concerned if a moat his pulled over -- >> go through this -- look i can think of many reasons i could make up. maybe they want to keep controversial political messages

off. identity said they have an interest in that, in assaulting to people texas doesn't sponsor this -- i just want to know what they really are. and now you have said one. what is the one yao just said. >> the texas dps troopers foundation plate. >> i'm interested in justice breyer's question. you're on the license plate approval board. what standard do you follow? when do you grant a request and when do you desunny? what is the smile think that's what justice breyer is asking. >> in texas regular layings provide that the -- regulations provide that the boardening deny messages that the public would find offensive and says the board can deny plates for any reason stand by rule -- >> then i think the lose because i don't see a state that can come in and say we keep off a private message and we'll tell you the reason later. we can do it for any reason we want. you're hurting speech. and i don't see texas' interest

in saying we can keep it off for any reason we want. that would be the republican democrat too. i think you have to have some kind of legitimate reason for keeping off -- doesn't have to be much. it could be just also -- >> texas can have legitimate ropes for not allowing -- >> why development you tell us what they are. >> that would be requiring something like a formal process, and -- >> don't assume -- i just want to know what they are. >> texas does not have to associate itself with messages it doesn't want to and finds offensive, and because texas has given that explanation here, we know that. many times government officials speak and don't disclose their motives -- >> but texas did and now you circle back to my first question. ity didn't just say, no,ed it said the message would be offensive to many people. so that -- if a message would be offensive to many people, that

is a standard that they're applying and i ask, isn't that too broad? >> no, justice ginsburg. the fact we have that discretion confirms this is government speech. melt reserve the remainder of my time. >> thank you counsel. mr. george. >> mr. chief justice and may it please the court. we're here because they wanted to have a license plate to raise money in fact for the state of texas to keep up mon. s which was the -- monuments which was the purpose of the whole process in this case. and the state of texas has gone about issuing an open invitation

to everybody to submit to them public designs for license plates and to create and thus has created a limited public forum for these license plates. >> can texas itself formally, let say by a joint resolution of the legislature, inners to the grand army of the republic and not the sons of the confederacy? can texas do that? >> the legislature can endorse anything it wants to. >> the state can. right? can the legislature endorse boston hamburgers? >> the legislature has created confederate heroes day in this case, and the people on my side of -- >> what about yankees or -- >> they created a holiday for

people -- for juneteenth when the slaves were freed. >> why this sticks in your craw when it's on a license plate that you knowledge that texas can do all of these things so long as it's texas speech. the only question here is whether this is texas' speech or not. if it is texas' speech all of these things can be said can't they? can't all of the things on the license plate -- >> texas speech by itself and is not joint speech because the -- >> just seem to me like a very significant issue. >> well. >> if that what you're concern about. as longing a texas says it's okay but if you put it on a license plate -- i don't understand what the theory is. >> well, the state has created a very successful money-raising program in which it solicits people to come in and submit their design for their license

plate so they can -- they have to submit the design, they have to put up some money to make the plate, and then the plate doesn't ever get published to anybody until the person -- somebody -- orders it from the -- >> suppose the message -- the an mix -- applicant said we want this design and the design is the swastika. is that speech that -- does whoever is in charge of the license plates -- do they have to accept that design? >> i don't believe the state can discriminate against the people who want to have that design -- >> somebody else says i want to have jihad on my license plate. >> jihad on the license plate?

there's obviously a district court from ohio in which infidels was to hold be -- >> what is your answer in this case as to justice ginsburg's heap the cal, yes or no? must the state put those symbols or messages on the plates at the request of the citizens? yes or. no. >> yes. >> how been make pot legal. >> say again? >> make pot legal. >> yes. >> that's okay? and bong hits for jesus. [laughter] >> yes. so you're really arguing for the abolition of texas specialty plates, aren't you? >> i'm arguing that if the state -- >> i couldn't make a better argument in that direction than what you have been doing. >> we have got along about it a long tithetime before we got -- so. >> so in a way your argument

curtails speech. normally if you prevail, you're going to prevent a lot of texans from conveying a message. you have to agree with that. >> i would -- if the state continues to use the same standard, which is it might offend anybody the state can deny the plate. if that's the standard then the -- they exercise their discretion on the stat -- statutory standard that it might offend somebody -- >> you have no alternate standard in order to have a proper or solution that seems wise for justice againstburg's hypothetical. no standard. >> the answer to having a standard that controls people's speech is that the standard has to be pretty low hanging fruit

as -- in the christian law students association college of hastings vs. martinez justice aleta in the dissent for the centers said offensive speech is something that we hate is something that we should be proud of protecting. >> that's in that context. but i'm trying -- you say they can or they cannot? have a standard which says we're trying to keep offensive speech off the license plate. >> as long as the -- >> yes or no. >> it's in the eyes of the beholder, of course. >> they can do that. >> they can't have that. >> can or cannot? >> cannot. >> okay. now, i see what you're saying. but if i or two go back to sort of the basic underlying thought here is speech hurt? >> yes. >> the answer is, yes it is. the private speech is somewhat hurt. a lot in well put up a bumper sticker. you can't a lot.

it doesn't get the official imprimatur. what they're trying to do is to prevent their official imprimatur from being given to speech that offends people. people development like it put up a bumper sticker. we have two interests in opposite directions, in many cases we try to weigh those things and the other things don't tell us the answer, and i would guess -- i don't see the big problem t with speech even that texas considers offensive in parts for robes justice scalia says put up a bumper sticker. what the problem? >> well, i -- the culture of creating specialty plates began in texas in 1965. we have been doing this and we have gone bonkers with the people buying these thing in the state. there's 50,000 people with the -- >> that's a lot of money, isn't it? about $8,000. >> say what? >> is it about $8,000 to get one

of-the-plates. >> a little more than that. >> i have a different question which is, i actually do think that this i hybrid speech. it's both government and the individual speaking at the same time. but that goes back to what justice scalia said. we said we can't compel the individual to put something on their license plate that they disagree with. >> we had that case. >> so, why isn't the reverse true to the government? if you're going to ask me to put my name because the law requires it the state's name on a license plate why can you compel us to do something we don't want to endorse? >> well, the -- >> why shouldn't it work both ways? >> the reason is that this has become -- it's the numbers. it's become a limited public forum for putting up messages.

>> how do i know which is the government and which is only the individual? i wouldn't have known that pro anything was sponsored by some states and not others. or endorsed by some states but not others. so how die know that a -- how do i know that particular license plate the government doesn't endorse? >> you can't tell whether the government wants your speech in advance in this program. you have to submit what you think you want and then the -- >> that implies a certain degree of approval. >> and of course there is approval. just like there's approval for someone to speak in a park. the columbus ohio case -- >> that was brought out earlier, time, place regulation can you

can't have content based regulation. this is a content basis. this content the state doesn't want. >> they have a standard that is -- that the lowest common denominator. if any person could be offended, they can deny it. that is their standard, which -- >> that's why -- it would be offensive to many people. >> no, ma'am i think the statute says actually, any person. so -- >> of course mr. george,off had a standard like that in a case in a normal case where we were regulating private speech, of course we would find that impermissible. but the question whether this is a different kind of context and that's go back -- i thinkity skill ya said it about the nature of license plates. there's a clear regulatory purpose here. it's the government that actually make the license plate. i think the license plate continues to be public property if that right.

you have to return the license plate. it has the state's name on it. it's herely -- clearly the official identification that that state gives with respect to a car. why doesn't all of that make this is a very different case from the typical forum cases that we usually address? >> well, the reason is that we do have hybrid speech, and they created a billboard opportunity and they have since they can make everybody have a license plate, they said, we're going to credit a billboard opportunity, and put messages -- let you put messages on it and pay us for using our billboard. then the they to some people, if don't like your message because you're a republican or democrat or you want to say mighty fine

burgers, instead of whopper burger. they can do that. that arbitrary control of speech based upon a standard that it might offend anybody, they either net to get rid of the program or open up the program to everybody else. if somebody publishes a speech they don't like justice o'connor in the columbus, ohio, state, suggested just put a number that -- the klu klux klan. >> i asked my question before, if remember it because i wanted an answer. it was -- i'm trying to get rid of the conceptual basis here. forget the public forum, et cetera. for gift all that -- forget all that. is speech being hurt? the answer is, yes. but not much. because they can put a bumper

sticker. you look at the other side of it and you say, does the state have a legitimate interest here? and the state says yes. our interest is that there are messages we like, messages we don't care about, and messages we don't like, and we have a system for keeping the last off because it is the government speaking, which represents the citizens, and the citizens do -- it's their government and they don't want just in the example justice scalia gave to have their government associated with messages this government doesn't want. that's the basic idea. now, i think you'd see, we see the other da da da ate. what your response. >> the response is the forum has been created -- >> forum. it's a conceptual -- i can't tell whether a license plate is a forum or three-part test. i can't get that. i'm trying to go back to the

basics. >> one of the ideas that you have articulated and others on this court, is that what would the reasonable observer believe this was? for example would they believe that the speech is the state speech or would they believe it's the person who bought the plate, because there's no -- nothing gets communicated. >> how about both? is the state's license plate, has texas on it, big letters, so texas said, yes we have to approve it. yes, we approve a lot but there's some we don't approve because it's our speech. of the it may be the car owner's peach as well but it's our speech. >> both the state has dozens of

potential designs for plates that don't carry anybody else's message, and they have 4 0 -- 480 designs for organizations and 50,000 personalized, and the issue in this case is the person who puts the license plates on their car is the one that communicates the message. the other people are just giving approval. >> suppose the state had many fewer plates from which to choose. let's say they have the standard plate and then they have a plate for everybody college or university in the state. that's your choice. would that be government speech? >> certainly is government speech in the sense that in part government speech. the ability to choose some government -- universities in the state and if the standard by which they issue those is that we're going to put one for all the colleges in the state and that is the standard?

of course that okay because it is a standard that has -- they chose or the legislature chose and i suspect that you can have everybody who has a college can get in this program. >> suppose they broad 'it. not only all the colleges and universities but all the places in texas of historic interest or natural features of the state. you have a lot more. >> they actually do those and anywhere not spored by anybody. they're state-created for and they charge more money -- >> answer the hypothetical. first comes and next, escape -- scenic places -- >> they can do. >> suppose there's a little town that thinks it's really scenic and there's a way in which they can petition to get on this list. at some point if it's -- if you have just standard state plate,

of course that's government speech. if you have 5,000 different variations that people can create for themselves it becomes a lot harder to say that government speech. where would you draw the line? >> my view is that when the people get to create a message themselves and then an organization in this case, create the message for themselves and then the people who look in the catalogue pick out the license plate that they want and put it on their car, then the speech is the speech of the person who communicated it -- >> my problem with this is, how do i know? there are three categories of plates, i understand. there's the official state plate. there are specialty plates created by the legislature. and there are specialty plates

created by an individual. how do i tell the difference between the legislative plates which are government speech, and the private plates? do i need to? what i do know is what i said at the beginning. it's both people speaking and i think both people endorsing each other's message in some way. so why should the government be compelled to accept speech it rejects because it thinks it's wrong? >> the first place -- >> and doesn't want to be associated with directly. >> i understand. the first place, the way people pick out plates there's a big long catalogue with 400 different special plates -- 4 0 grosses every day -- and people pick them out of a catalogue. out of a web site, and they pick the one they want to pick and put it on their license plate. the communication of the

information on the license plate actually is controlled entirely by the people who pick the plate. >> what about justice alito's hypothetical? the direction of his question was, supposed the state, all by itself has ten messages, 20 messages 200, 2,000 messages. you can choose. but the state makes up all the messages and gives you the choices. what result? >> the result is if the state has control -- controls all -- picks all the messages and then the people from whom it picks -- who it sell thursday plates to -- >> i know that's the result of the hypothetical. i want to know the legal result. the first amendment answer. >> well, the state can design all kinds of license plates that it wants to choose -- >> does that mean as i proposed and justice alito's questions --

consistent with the -- >> when people -- other people submit the design they that's not the hypothetical. the state has 5,000 plates and the state makes them all up and you can choose. is there a first amendment violation, ii don't believe i the state does everything it's the creator of the message and the speaker if the driver. >> what if private people can submit messages but all had to go through the legislature. >> my view is it's a much more difficult case for us if the legislature passes a statute because that is a legislative act and a clear act of the state. >> what's the difference, then? if you think that would be all right, texas has said the dmv does it, not the legislature different branch of government but government just the same. >> i understand that. and the issue is whether or not

the -- in the cases we have court of appeals cases that don't distinguish between legislative action and nonlegislative actions and those that do. it is my judgment that the state has a greater claim making its speech when the legislature passes the bill and the governor signs it, then the statute is clearly explanation or expression of the state. >> in that regard whenever anybody buys a license plate -- going back to that i take it that if i object to the message on the new hampshire plate, live free or die have a right to be disassociated with that. >> yes. >> okay. well, if the state, which represents many people in texas, doesn't want be to associated with the particular message, why doesn't it have the right to say, we don't want that? we don't want that association?

the state represents x million people. they don't want to be associated with this message through their official -- what's the difference? >> the difference is they invite people to make their -- they charge people and have them pay for the manufacture of the license plates by giving them the chance to design a message. that's what they do. they -- the people who come up with these things pay up the front-end costs, put up $8,000 collateral and it's a money, making scheme they useful the fact that they choose to apparently twice in history, there may be more but we can't document anymore -- ever turned anybody down. this is not a forum which people actually -- they make any decisionby besides an economic digits. it's factual matter. that's what happens.

>> counsel, it's a somewhat technical question. do you have an objection to the materials that your friend has cited from outside the record? >> to the extent he has cited issues relating to the other design? i do not have an objection to that because -- it's. >> it's the extra record materials. >> i think almost certainly accurate from wham we found since we filed our brief and i -- the fact that we have gone from 350 to 480 organizational designs since the case was tried, which is not in the record either but i don't doubt that -- sell a lot of organizational plates since then and they keep a better tally than we do. >> so the choice that texas has -- am i right -- that in your view, is if they're going

to have these vanity plates, have to be open to everybody, or they can set -- shut the program down and nobody gets vanity plates but maybe if the legislature passes a law or laws saying this plate is okay that might be okay. so if it is the choice between everything or nothing, with the exception of what the legislature does is okay? >> i believe that the best analysis is the legislature or the motor vehicle commission discriminates against people's speech on the basis of the content of the speech. that is stock serious first amendment concerns and is probably illegal, although there may be' exceptions so that. that is what i think the better rule is. we have conflicts in circuits

about that and this court has not addressed that -- that is not this case but i believe it is an issue -- >> mr. george, could i take you back to the chiefity's question for a moment and make sure i understand it. mr. keller indicated that there are a number of other occasions in which the state has disapproved plates and which the state has done that on the grounds of offense. do you have any objection to those representations. >> to to extent they were didn't on the grounds of offense, die. because he has one that i can -- that we have verified and that one is that there was a concern about a danger on the drivers thinking that somebody is' state trooper plate maple made them a state trooper. >> what if the argument were not simple police offensive but ahigher degree incitement or

likely to -- someone in texas with a swastika is likely to trigger public violence. is the level of the state's interests at all pertinent to your position? >> well, this court's law on incitement, going back to brandonberg versus ohio, and the klu klux klan rally that this court decided was not incitement, is pretty thin at this point in our history because i don't know what the rule of incitement would be today. >> mr. george, just the worst of the worst, whether that's the swastika or the most offensive racial epithet you can imagine and if that were on aline plate where it really -- a license plate where it really is provoking violence somebody is going to ram into that car -- >> i don't think people teche government can discriminate on content. they can put on the license plate they disagree with this is not the state's speech.

and big orange letters. and this disclaims that speech perfectly legitimate. >> where is that going fit on the license plate? [laughter] >> because that's -- you can put -- we have taxation without representation on the district of columbia's license plate and that's a political message. they can put -- >> your position is that if you prevail, the license plate can have a racial slur. that's your position? >> yes. >> i don't think there's any consistent position otherwise, although the state can disclaim it undoubtedly on the same license plate. >> do you have to put the taxation without representation on your d.c. plate or can you ask for a clean plate and. >> i don't live here but i believe it is required. >> if somebody object is guess it's like live free or die right? >> they can put it -- take it

over. but you can put obviously the disclaimer idea justice o'connor came up with that in her concurrence in the columbus, ohio, klu klux klan cross on the hill case, and i thought that was a pretty good idea that we have a disclaimer when you don't like the speech. and you don't believe it's appropriate. the state can do that. and i think that's largely part of the answers. this is not -- certainly not purely governmental speech because the action of the state is only approval. as to the pleasant grove city of utah case monuments are in fact unique circumstances. this court had decided perry

versus -- darton versus perry years ago, involving a map of the state capital grounds with all the monuments in it. those monuments -- when that case was decided over 100 years the monument in question has been there 45 years. monuments are different than any kind of speech in a park because of the nature of the creation. you couldn't -- you'd have less in common with monuments every seven feet which you can't do that. and that case turns on those facts, and i believe it is absolutely correctly decided. i'm also convinced that the jonas versus livestock board is correctly decided because it started with the statute passed by congress, telling the department of agriculture to do something, marketing material, have it submitted back to the secretary of agriculture, let him approve it, and go market

it and impacts on imported beef to support it. >> do you know how much money texas makes from this? >> it's not a line item in the budget but lots. >> that's all this is about. isn't it? >> yes. [laughter] >> that why texas is in the business. and so people get to -- they like what they're saying and they don't get to do business if they don't like what they said. >> thank you counsel. mr. keller you have three minutes remaining. >> you have very limited rebuttal time. i did have one question. you were asked the question about the republican, the democratic distinction. there is first amendment standard you can use to deny that plate? >> i believe it would be government speech and therefore, would there would not be a first amendment problem but i believe it would not be

allowed because other constitutional bars would apply. >> just as if a monument were put up in a public park, it would be the government speaking, however it would not be allow understand other constitutional provisions. if can suggest a way to avoid the billboard problem. when the government has it name on the speech and is part of a regulatory process or a program of the government's and there's formal notice and comment, and there's a public vote and there's no abridgement of traditional free speech rights that's government speech. ity breyer to address the others that texas has here, texas wants to prevent offensiveness and vulgar speech and confusion wants to celebrate the diverse interests the state has. justice sotomayor, you're right even if this is hybrid speech and takes to to tango in this situation. you need both a motorist and the state propagating the message,

that's still government case. all government cases have been on that posture. all of our cites in our reply brief and our opening brief to tight 483 of the texas administrative code, those have been renumbered since the filing of our reply brief but the sneaps is the same. this is not just about texas making money although decision does make money. this is about the state of texas not wanting to place its stamp of approval on certain messages and the speaker is not entitled to imprimatur of the state of texas on whatever message it wishes to put on the license plate. thank you mr. chief justice. >> thank you counsel. the case is submitted. >> if there's something you can't to capture, you take it off your wrist, and it will be very simple to take off your

wrist and it will expand and it will be as easy as gesturing. you'll just toss it, and it completely autonomous. no remote required. it's smart enough to know the direction you toss and it the pressure of your toss. so it's a gentle toss it will stay close. i if you throw it it goes further away and will compose a photo, take a photo and come back completely autonomously. >> the communicators tonight at 8:00 eastern on c-span2. >> it's booktv in primetime tonight. our focus is congressional authors. kicking off at 8:30 p.m. eastern with juror nonmccain and his book "13 soldiers: a person history of americans at war." at 9:15, steve israel talks bit his work called "the global war on morris. "at 10:05'm, it's marco rubio,

and then we wrap up at 10:25 with former massachusetts congressman barney frank. he appeared on our "after words" program to talk about his book. ... the history and literary life of tulsa, oklahoma. >> most famous for his writing but he was much more

than that born in 1912. we are proud to have his work back in oklahoma where we think it belongs. he was an advocate for people who are disenfranchised those people who were migrant workers from oklahoma kansas and taxes during the dust bowl era found themselves in california literally starving and he called this vast difference between those two the house and the have-nots and became a spokesman through his music. >> he recorded very few signs of his own. we have a listening station that features 46 of his songs in his own voice. that is what makes the recordings that he did make so significant and so important to us. ♪ this land is your land. ♪ this land is my land