Editor's note: Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.
(CNN) -- Can a state ban license plates that display the Confederate flag?
A court of appeals in Louisiana recently ruled that the Texas Department of Motor Vehicles Board violated a nonprofit organization's free speech rights when it denied the Sons of Confederate Veterans' application for a specialty license plate featuring the Confederate flag.
The court waded into a controversial issue that has roiled the politics of several states. In Georgia, which has offered such plates for more than 10 years, State Sen. Jason Carter, the grandson of President Jimmy Carter, has intimated that if he is elected governor of Georgia, he will not stop the state from issuing license plates featuring the Confederate battle flag. He has said citizens have a right to the Sons of Confederate Veterans-backed license plate, which features a stylized Confederate flag.
In the case of Texas, the court's opinion said, a two-step analysis should apply to the question of whether citizens have a right to these specialty plates.
First, whose "speech" is a specialty license plate? The citizen? Or the state? If the plates are government speech, then the analysis ends: the state wins, and the citizens (the Sons of Confederate Veterans) lose. The government not only has a right to speech, it is entitled to select whatever views it wants to express.
What is government "speech," anyway? One example is the government's discretion to choose—and reject—works of art displayed in a public park, because citizens would assume that art in a park is government speech.
When the government speaks, a citizen has no legal basis to complain, because the Free Speech Clause only prevents regulation of a person's speech, not the government's own speech. In the case of a public park, for example, a city can erect a monument to veterans of the Spanish-American War, and decline to erect a donated monument to Nazi veterans.
According to most courts, license plates, even when owned by the government, are private speech. This is because we associate the message on the plate with the driver, and not the government.
It makes some sense: if you pull up to a Corvette with PLYBOY1 vanity plates from Ohio, you roll your eyes at the cheesiness of the driver, and not at the Ohio legislature. Ultimately, it seems, that when the government decides to rent out space on its property, then it loses some control over the message on that property.
Once the court determined license plates are private speech, it moved on to the next step. By rejecting the plate because it was offensive, the board engaged in what is called impermissible "viewpoint discrimination." It's true that sometimes the government can discriminate against speech because of its subject matter if it preserves the limited forum's purposes. On the other hand, discrimination because of the speaker's specific motivating ideology, opinion or perspective is presumptively unconstitutional.
The court said, "By rejecting the plate because it was offensive, the board discriminated against Texas Sons of Confederate Veterans' view that the Confederate flag is a symbol of sacrifice, independence and Southern heritage. The board's decision implicitly dismissed that perspective and instead credited the view that the Confederate flag is an inflammatory symbol of hate and oppression."
Also interesting was the court's observation that Texas' specialty license plate program features other plates that honor veterans, including Vietnam veterans, female veterans, and Buffalo Soldiers. It's a thought-provoking secondary question: Are Confederate veterans entitled to the same respect we give other veterans?
Once the court concluded that the board discriminated against the Sons of Confederate Veterans, the court concluded that the group's license plates are protected private speech. The Sons of Confederate Veterans appears to have won this battle.
But both the Sons of Confederate Veterans and the state of Texas have lost the war: of common sense.
As much as fans of the law enjoy a good First Amendment case, practical citizens might hold both sides in contempt—eye-rolling, head-shaking, social contempt. Because while determining the extent of our free speech rights is valuable, it comes at a steep price: litigation costs and time. For squandering our resources, both sides are at fault.
The Sons of Confederate Veterans is at fault, but not for the group's controversial views. No, this indictment is leveled at the Sons of Confederate Veterans, and all license plate rabble-rousers: You have all the rest of the square footage of your car other than that license plate to festoon with whatever message you like. Heck, if you have an orange 1969 Dodge Charger, you're free to name it after a Confederate general, paint a giant Confederate flag on the roof, and have the horn play Dixie. Not only would that be protected speech, if it were still the 1980s, you'd have a hit TV show on CBS. You have the entire rest of your car to "speak" -- why insist on having your message on the 30 square inches of Texas license plate that's going to cause problems?
The Texas Department of Motor Vehicles —in fact, every DMV that offers specialty or vanity plates -- is also equally to blame. Selling this space on government plates is a thinly veiled and unnecessary money grab by the state. Plus, whatever revenue these generate has to be offset by litigation costs when a controversial group like, say, NAMBLA, North American Man/Boy Love Association, applies for its own plate. Once the government decided to make a buck off license plates, it opened its own Pandora's glovebox.
It's true that the Confederate flag is a divisive symbol. To many, it represents such notions as heritage, rebellion and possibly even state sovereignty. To others, it represents slavery, small-mindedness and even treason.
Make no mistake, the limits of speech on license plates have yet to be fully defined, but the government brought this debate to our commute by selling ad space on its license plates.