Texas does not want to issue license plates depicting the emblem of a traitorous regime that waged war against the United States in defense of slavery. As it turns out, however, the question of whether or not they can refuse to do so — which the Supreme Court will take up on Monday — is not particularly easy, and supporters of the Confederate flag have a strong First Amendment argument on their side.
Last July, a divided panel of the the United States Court of Appeals for the Fifth Circuit held that Texas violated the First Amendment when they refused the Sons of Confederate Veterans’ (SCV) request to issue license plates which incorporate the Confederate battle flag. According to Judge Edward Prado’s majority opinion, this denial implicitly disfavored the view that “the Confederate flag is a symbol of sacrifice, independence, and Southern heritage” and credited view that “the Confederate flag is an inflammatory symbol of hate and oppression.” Doing so, according to Prado, is viewpoint discrimination, which is not permitted under the Constitution.
The reason why this is a difficult case, however, is that it is not entirely clear whether the First Amendment applies at all to state-issued license plates. Generally speaking, the government may not engage in viewpoint discrimination when it regulates others, but the government is free to say what it wants when it speaks with its own voice. This is why, for example, the government can fund a program advising children to “just say no” to drugs, without also having to provide equal funding to another program urging kids to get high.
In its brief to the Supreme Court, Texas claims that the messages that appear on state-issued license plates are the state’s own speech, and thus the state is free to screen out views that they do not wish to express. The SCV, according to Texas, “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.”
Texas also warns that the Court could open up a floodgate of absurd or offensive plates if they side with the plaintiffs. “A State is fully within its rights to exclude swastikas, sacrilege, and overt racism from state-issued license plates that bear the State’s name and imprimatur,” Texas proclaims, adding that a “State that issues ‘Fight Terrorism’ specialty plates is not required to offer specialty plates with messages that praise al Qaeda.”
The SCV counters the claim that license plates are government speech by emphasizing the amount of individual discretion that goes into selecting a specialty plate that was designed by a private individual or group. “People and organizations who want to have a specialty plate create a proposed plate and request approval of the design,” the SCV’s brief explains. “A committee of the DMV approves the design, but people who want to display the design on their vehicle choose the plate, pay the extra cost, and normally install them on their vehicle. These people then publish the message when they drive their vehicle in public.” Specialty plates, they argue, are not government speech, they are personal speech.
The SCV’s brief offers a long list of examples of other plates that are available in the state. They include various plates promoting different universities, a plate for NASCAR fans, numerous plates for veterans and whimsical plates such as “Rather Be Golfing” or “Texas It’s Like a Whole Other Country.” They also include political messages ranging from “Choose Life” to “Insure Texas Kids” to a plate touting the “Texas State Rifle Association.” According to the SCV, “[t]here is no record of any other specialty plate application ever being denied” by Texas other than the Confederate flag plate.
A group that wants to display a Confederate flag may not be the most sympathetic plaintiff to bring this kind of lawsuit, but it is worth noting that similar battles have raged in other states on questions such as whether states with “Choose Life” plates must also provide a specialty plate to abortion supporters, or whether the state may have a plate promoting a pro-gay message. If the Supreme Court holds that Texas’s plates are government speech, that could potentially cut off claims brought by other groups seeking a specialty plate as well.
Both parties have precedents on their side supporting their claims. In the 1977 case Wooley v. Maynard, the Court held that a New Hampshire resident could not be forced to display the state’s motto, “Live Free or Die,” which was incorporated into the state’s license plates. That suggests that the words that appear on a license plate are individual speech, not government speech, and thus are covered by the First Amendment.
Texas, however, can look to the 2009 decision in Pleasant Grove City v. Summum, an odd case involving a Utah park which displayed permanent monuments donated by private groups. Though one of these monuments depicted the Ten Commandments, the Court held that it was not a First Amendment violation to exclude a proposed monument featuring the “the Seven Aphorisms of SUMMUM,” a set of principles considered sacred to the Summum faith. Monuments erected on government land, the Court’s opinion in Summum reasoned, constitute government speech even if the monuments were privately financed and donated by private groups or individuals.
The city that controlled the park, Summum explains, “has ‘effectively controlled’ the messages sent by the monuments in the Park by exercising ‘final approval authority’ over their selection” of these monuments. That seems to suggest that Texas, which has also exercised a degree of control over which messages are displayed on its license plates, may also be able to claim that those messages are government speech.
That said, Summum is not an ideal precedent for Texas, as that decision was rooted in the observation that it would be highly unusual to require a landowner to display a message on their own land which they do not embrace. “It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated,” the Court reasoned. Cars, however, are typically the property of the driver, so Summum is not entirely on point with Texas’s case.
Ultimately, Texas’s strongest argument may be a practical one. Should the state have to produce a pro-Al Qaeda plate because it also promotes a message opposed to terrorism? Or, does the fact that Texas provides a “Stop Child Abuse” plate require it to also issue plates touting the view that child abuse is awesome? If Texas loses, the opportunities for trolling could be limitless.
Nevertheless, the Supreme Court has not normally been particularly sympathetic to this kind of concern, and for good reason. The Confederate battle flag is an offensive symbol, but that’s exactly the kind of speech the First Amendment is supposed to protect.
Four years ago, the Court sided with the notoriously anti-gay Westboro Baptist Church, holding that church members were wrongly held liable for protesting a fallen marine’s funeral with signs like “Thank God for Dead Soldiers,” “Don’t Pray for the USA,” and the church’s infamous “God Hates Fags” slogan. If Westboro enjoyed robust First Amendment rights during a malicious attack on a family consumed by grief, then why shouldn’t an interest group who wants to honor long-dead and treasonous soldiers who took up arms in defense of slavery?