The state of Texas’s decision not to issue a license plate that incorporates the Confederate battle flag violates the First Amendment, according to a divided panel of the United States Court of Appeals for the Fifth Circuit. The majority opinion by Judge Edward Prado concludes that Texas engaged in impermissible viewpoint discrimination by implicitly disfavoring the view that “the Confederate flag is a symbol of sacrifice, independence, and Southern heritage” and crediting the viewpoint that “the Confederate flag is an inflammatory symbol of hate and oppression.”
As a matter of law this is a genuinely difficult case, although for reasons unrelated to whether Texas engaged in viewpoint discrimination by refusing to print license plates that display a symbol used by racist, slaveholding traitors. As a general rule, the government is not allowed to discriminate among viewpoints when it regulates the speech of others, but it has wide discretion when it offers its own viewpoint — thus, the government can fund a campaign urging children not to do drugs without having to give equal time to supporters of illegal drug use. The most important, and the most challenging, legal question presented by this case is whether state-issued license plates are a form of private speech or a form of government speech.
Judge Prado’s opinion for the majority concludes that license plates reflect the views of the person who displays them on their car, and thus Texas could not exclude the viewpoints of people who support the Confederacy when it decides which plates to offer. There is, indeed, strong precedent indicating that drivers have a First Amendment interest in the message displayed on their license plate. In the 1977 Supreme Court case Wooley v. Maynard, the justices held that a New Hampshire resident could not be required to display the state’s motto “Live Free or Die,” which was printed on his state-issued license plate, under the First Amendment.
In dissent, Judge Jerry Smith argues that a more recent case, the Supreme Court’s 2009 decision in Pleasant Grove City v. Summum, changes this calculation. Among other things, Smith rejects the idea that the messages displayed by a license plate must be either government speech or private speech — they may be both. In Summum, Smith explains, the “overwhelming majority” of the government-displayed monuments at issue in that case “were designed, built, and donated by private actors; and at least some portion (if not all) of the privately donated monuments bore the inscription, name, and/or written message of the donors.” And yet, the fact that these monuments conveyed private donors’ viewpoints did not prevent the Supreme Court from concluding that the government could be selective in determining which monuments it wanted to display in a public space. Similarly, Smith argues, Texas should be allowed to be selective in determining which messages it displays on its license plates, even if these messages also reflect the viewpoints of private individuals.
As federal appeals courts are divided on the question of if and when states are required to issue license plates conveying messages the state would prefer not to convey, it is fairly likely that this case will be heard by the Supreme Court if Texas appeals.