High Court To Decide If Texas Violated Freedom Of Speech Over Confederate Flag License Plate

On Monday, the Supreme Court will hear a case that may decide if a Confederate license plate may be denied. The case, which is viewed as a First Amendment issue, is one of many high profile cases the high court has on its docket this year. In addition to the freedom of speech case, the court also has an important marriage equality case to decide.

The First Amendment case, which originated back in 2009, was considered important enough to be heard by the high court. The question that the Supreme Court must decide is, does the license plate speak for the government or the individual? This has been a question for years concerning many First Amendment issues.

In 2009, the Texas branch of the Sons of Confederate Veterans submitted a design for a specialty license plate. The design included the Confederate flag, and the intention was to honor to the men who fought for the Confederacy in the Civil War. At that point, the Department of Motor Vehicles board voted on the proposal after receiving many opinions against the plate. The license plate was denied twice, and the reason was the DMV board felt the design was an offensive celebration of slavery.

The SCV then sued the DMV, stating the denial of the specialty license plate was a clear violation of free speech. Texas responded by saying that since license plates were government property, they could decide what went on them.

A federal court then ruled in favor of the state and dismissed the lawsuit. The case was revived when the Fifth US Circuit Court of Appeals reversed the ruling. The court concluded that the DMV board engaged in censorship of free speech based on the viewpoint it conveyed.

The irony is that Texas does celebrate an annual Confederate Heroes Day, but the state asserted in their brief that it “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.”

The SCV shot back that since the state of Texas already does acknowledge a Confederate holiday, how do they find this license plate offensive? The state not only celebrates this particular holiday, but they also fly the Confederate flag on the grounds of the Texas capitol. R. James George, a lawyer representing the SCV, asserts that the state of Texas is being hypocritical.

“The State apparently does not believe that the ‘message’ of the Confederate flag is offensive to the public, or, if it is offensive, the State certainly does not shy away from its expression because of such offense.”

Of course, Texas came back with their own response to the U.S. Supreme Court, saying they have done nothing to censor freedom of speech.

“The respondents 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.”

The state’s brief to the high court also asserts the SCV is attempting to make Texas promote an image they do not wish to be associated with.

“The [Sons of Confederate Veterans] are not seeking to vindicate their freedom of speech; they are trying to coerce the State of Texas into propagating a message and image that it does not wish to convey,”

Texas Solicitor General Scott Keller is arguing to the high court that if they allow this particular plate to be released to the public, what other plates will be allowed? At the present time, other states have issued license plates that express a pro-life stance. Does that then mean that there should be a Respect Choice plate?

Solicitor General Keller argues in his brief to the court, “States that issue Fight Terrorism or World War II Veteran plates should not be compelled to print license plates approving of Al Qaeda or the Nazi party,”

SCV Attorney George contends that the question of whether this is individual speech or if the government is promoting a viewpoint has never truly been addressed.

“The specialty plates at issue here are either private speech or government speech, if they are private speech, the [Texas board] cannot discriminate based on viewpoint, and offensiveness is an impermissible standard. If they are government speech, the government is free to say whatever it wants.”

A decision from the high court is expected late in June, 2015.

[Image Credit Texas Department of Motor Vehicles/Handout via Reuters]