Can states refuse to issue Confederate flag license plates?

The US Supreme Court agreed on Friday to take up a case testing whether a group called the Sons of Confederate Veterans has a free speech right to force the state of Texas to distribute a specialty license plate featuring the Confederate battle flag.

The underlying issue in the case is whether state-authorized vanity license plates are a form of government speech or are, instead, the private speech of drivers who agree to pay extra registration fees to display a particular message on their vehicles.

The case raises fundamental questions about free expression and government regulation of speech.  

The legal dispute stems from a decision by a state board in Texas rejecting a private proposal for a Confederate flag specialty plate. The board said the flag was offensive to many residents who view it as a symbol of racial hatred and oppression.

The Sons of Confederate Veterans (SCV) sued, arguing that Texas was violating its right to free speech under the First Amendment.

A federal judge sided with the state, throwing out the lawsuit. But a federal appeals court reversed that decision, ruling that the Texas board had engaged in viewpoint discrimination by rejecting the proposed Confederate veterans’ license plate.

The New Orleans-based Fifth Circuit said displaying a Confederate flag license plate would be the private speech of the vehicle owner, not the government, because a reasonable observer would know that the message of the plate was the expression of the individual driver, not the government.

Texas offers more than 350 specialty plates with messages including "God Bless Texas," "Be a Blood Donor," "Rather Be Golfing," "Choose Life," and "Stop Child Abuse."

Specialty plates in Texas can originate from action by the state legislature. Or they can originate from proposals from any group or individual. That’s what happened with the SCV.

The board rejected the application because it determined that the Confederate battle flag would be offensive to a large number of people. The SCV maintains that a Confederate flag specialty license plate would be a symbol meant to honor Confederate soldiers and Southern heritage.

The question in the case is whether the Texas rejection of their request was permissible content-based regulation or impermissible viewpoint discrimination.

The Fifth Circuit said that Texas officials who rejected the SCV application engaged in unconstitutional viewpoint discrimination.

“By rejecting the plate because it was offensive, the board discriminated against Texas SCV’s view that the Confederate flag is a symbol of sacrifice, independence, and Southern heritage,” the appeals court said.

“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,” the appeals court said.

The appeals court noted that Texas offers vanity plates for a number of other veterans groups, including Korean Veterans, Vietnam Veterans, Women Veterans, Buffalo Soldiers, Operation Iraqi Freedom, and World War II Veterans.

Given the state’s willingness to permit other veterans’ vanity plates, the court said that it appeared that the only reason the SCV plates were rejected was because of the viewpoint the group expresses.

“We understand that some members of the public find the Confederate flag offensive. But that fact does not justify the board’s decision: this is exactly what the First Amendment was designed to protect against,” the Fifth Circuit panel said.

The court said the government may not attempt to selectively shield the public from some messages because they are more offensive than others.

Lawyers for Texas urged the high court to take up the case and reverse the Fifth Circuit.

In recent weeks, the high court had also considered taking up a dispute in North Carolina over whether a decision by that state to offer a “Choose Life” specialty license plate also requires North Carolina to produce a specialty plate with a competing message like “Respect Choice.”

Some critics of this viewpoint-neutral approach question whether it might be carried to absurd extremes. They suggest states that issue “Fight Terrorism” specialty plates may be required to issue plates in support of Al Qaeda.

The federal courts of appeals are divided over how best to resolve the underlying First Amendment issues.

In 2006, the Cincinnati-based Sixth Circuit ruled that Tennessee’s “Choose Life” specialty plate was a form of government speech because the state legislature voted to authorize and issue a plate with that message.

Five other appeals courts have reached a different conclusion. They have ruled that specialty license plates are private speech entitled to First Amendment protections.

It appears the justices have decided to hold the North Carolina case, pending a decision in the Texas case.

The cases are Walker v. Texas Division, Sons of Confederate Veterans (14-144), and Berger v. American Civil Liberties Union (14-35). The cases will likely be argued in March or April.