The United States Supreme Court on Monday is set to hear a dispute over whether Texas has the authority to bar the issuance of a specialty license plate featuring the Confederate battle flag.
The controversy arose in 2009 after the group Sons of Confederate Veterans asked the Texas Motor Vehicles Board to approve a specialty license plate that prominently displayed the Confederate flag.
In the century and a half since the Civil War, the Confederate battle flag has come to represent a symbol of Southern heritage for some. But for many others, including African-Americans, the flag is viewed as a symbol of fear, intimidation, and oppression.
Cognizant of this reaction, the Motor Vehicles Board voted to reject the license plate.
The Sons of Confederate Veterans filed a lawsuit, charging that the Texas board – which has approved messages conveyed by 350 other specialty license plates – had engaged in unconstitutional viewpoint discrimination in violation of the First Amendment’s free speech clause.
A federal judge ruled for the state and dismissed the lawsuit, but the Fifth US Circuit Court of Appeals reversed, ruling that the board engaged in unconstitutional censorship by rejecting the license plate based on the viewpoint it expressed.
In its brief to the US Supreme Court, Texas argues that it has done nothing to abridge the group’s freedom of speech.
“The respondents have every right to decorate their cars with bumper stickers or placards that display the Confederate battle flag. But they cannot commandeer the state into promoting the Confederate battle flag on a state-issued license plate,” the Texas brief says.
“The [Sons of Confederate Veterans] are not seeking to vindicate their freedom of speech; they are trying to coerce the State of Texas into propagating a message and image that it does not wish to convey,” the brief adds.
The federal appeals court ruled that since Texas offers a wide range of specialty license plates with state-approved messages for sale to motorists who embrace those messages, it could not single out certain objectionable or offensive messages from inclusion in the specialty plate program.
At the core of the Texas argument is the assertion that the state-issued license plates – and their messages – are government-endorsed speech and that the government is entitled to decide what to say and what not to say.
“On each license plate, Texas communicates a message within its sole control, and consenting motorists assist in spreading that state-approved speech,” Texas Solicitor General Scott Keller wrote in his brief.
Lawyers for the Sons of Confederate Veterans counter that the messages on specialty license plates are not government speech. Instead, the messages belong to those private individuals, businesses, and groups who designed the specialty license plates. They also belong to each driver who chooses to attach a specialty plate – and its message – to his or her motor vehicle.
Since the specialty plates are private speech, the group argues, the government may not censor that speech merely because it might be offensive to some.
“The [board] denied Texas SCV’s application for a specialty plate for one reason – because the plate ‘might be offensive to any member of the public,’ ” R. James George wrote in his brief on behalf of the Confederate veterans’ group.
“This ‘potential offensiveness’ standard is not a constitutionally valid standard and is a recipe for viewpoint discrimination,” he said.
“The [Texas board] gave its imprimatur to the viewpoint that the Confederate battle flag is a symbol of racism, and discriminated against those who view the flag as a historic symbol of the Confederate soldier’s sacrifice, independence, and Southern heritage,” Mr. George said.
George’s argument isn’t just that Texas engaged in viewpoint discrimination. He also says Texas is being hypocritical.
Texas celebrates January 19 as an official state holiday to honor Confederate veterans. It is called Confederate Heroes Day.
The state displays Confederate memorials on the grounds of the Texas Capitol, and sells replicas of the Confederate battle flag in the Capitol gift shop.
“The state apparently does not believe that the ‘message’ of the Confederate flag is offensive to the public, or, if it is offensive, the state certainly does not shy away from its expression because of such offense,” George wrote in his brief.
The specialty license plate proposed by Sons of Confederate Veterans sought merely to express the same message, he said.
The Texas solicitor general argues that if the high court upholds the Fifth Circuit’s decision barring viewpoint discrimination in specialty license plate programs, it would require Texas and all other states issuing specialty plates to provide plates expressing any opposing viewpoints.
“Untenable consequences would follow if a viewpoint-neutrality requirement is imposed on states that retain sole control over messages on their license plates,” Mr. Keller said.
“States that issue Fight Terrorism or World War II Veteran plates should not be compelled to print license plates approving of Al Qaeda or the Nazi party,” he said.
The issue has also arisen in the context of the debate over abortion. Many states have decided to issue Choose Life specialty plates. The question is whether those states must also issue Respect Choice plates as well.
The opportunity for opposing viewpoints is significant. Texas offers some 350 different specialty plates, including Choose Life, Rather Be Golfing, Mighty Fine Burgers, and God Bless Texas.
George said the high court has never directly addressed the underlying legal question.
“The specialty plates at issue here are either private speech or government speech,” he said. “If they are private speech, the [Texas board] cannot discriminate based on viewpoint, and offensiveness is an impermissible standard. If they are government speech, the government is free to say whatever it wants....”
The case is Walker v. Sons of Confederate Veterans (14-144). A decision is expected by late June.