The Lone Star State has no shortage of specialty license plates including “Texas 4 Ever,” “Ducks Unlimited” and”Fight Terrorism.” But state officials drew the line when one organization sought to have their logo — the Confederate flag — depicted on a plate.
On Monday, the Supreme Court will consider whether the decision to exclude the Sons of Confederate Veterans (SCV) from the specialty license plate program violated the organization’s free speech rights under the First Amendment.
Most states have some kind of specialty license plate program and this is the first time the justices will take up the issue to explore the rules for distinguishing between government and private speech.
“The case is important because it provides an opportunity for the justices to clarify legal doctrines that continue to confuse the courts, officials and citizens,” said Richard W. Garnett of Notre Dame Law School. Garnett said he believes that the ultimate ruling could impact not only state specialty plates but “all of the many, many ways that government property and funds facilitate expression and communication.”
In Texas, drivers can choose to have standard issue plates or plates with messages authorized by the Texas legislature. But there is a third alternative. Individuals, non-profits or for-profit businesses can also pay a fee and create a design subject to the approval of the Texas Department of Motor Vehicles Board (DMVB). It is this third category that is at issue before the court. These plates are designed to raise revenue and they can be rejected by the DMV if the design is found to be “offensive to any member of the public.”
The SCV says it submitted an application for a plate featuring the battle flag because it seeks to honor the reputation of soldiers who fought for the Confederacy during the Civil War. When the DMVB ultimately voted against the plate design, the group sued.
In considering SCV’s challenge, the justices will have to first decide whether what is on the license plate constitutes government speech. If it does, then it is not subject to constraints under the free speech clause of the First Amendment.
“When the government is speaking for itself, it is generally allowed to say, or not to say, what it wants,” said Garnett.
Indeed, Texas argues that the speech is government speech, and that the state is allowed to select the message that is it willing to publicly support.
“Texas is not willing to propagate the Confederate battle flag by etching that image onto state-issued license plates that bear the State’s name,” Solicitor General Jonathan F. Mitchell argued in briefs. He said that drivers could decorate their cars with bumper stickers, “but they cannot commandeer the State into promoting the Confederate battle flag on a state-issued license plate.”
But if the justices decide that the speech on the plate is that of the driver — so called “private speech” — then the court will have to decide whether Texas can exclude the speech on the grounds that it was deemed offensive.
“Generally, when the government creates or opens up a forum for private speech, it cannot take sides and allow some messages and viewpoints but not others,” Garnett said.
In court briefs, lawyers for the SCV stressed that a visitor to the gift shop in the Texas Capitol can buy replica Confederate currency and miniature Confederate flags, yet when the SCV sought to express the same message it was rejected. They argue the speech is private speech and the government is not allowed to favor one speaker over another.
“The DMVB 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,” they wrote.
Gregory M. Lipper, a lawyer at Americans United for Separation of Church and State, filed a brief in support of SCV and agrees that what is written on the license plate represents private speech. He says the justices will need to determine “whether Texas is simply limiting the scope of the program — certain topics are allowed, others are not — or whether Texas went further and illegally censored SCV’s speech because the State disapproved of its views.”
The court will ultimately give guidance to other states with similar programs. For instance lower courts have divided over plates that say “Choose Life.” And while Texas rejected SCV’s application, the plate is available to residents in Alabama and other states.
A decision in the case is expected by early summer.