If the government rejects a Confederate flag license plate, does that violate the First Amendment?
What about one taking a strong stand on abortion, or something even more controversial?
Those are questions that Supreme Court justices will take up on Monday when they hear argument in Walker v. Sons of Confederate Veterans, a case originating in Texas that will test whether it is the government or drivers who are “speaking” on specialty license plates and what either might be allowed to say.
The case goes back to 2009, when the Texas branch of the Sons of Confederate Veterans, which honors soldiers who fought for the Confederacy in the Civil War, submitted a design proposal for a specialty license plate to the Texas Department of Motor Vehicles that included a Confederate flag. The DMV board that voted on the proposals fielded angry public comments and twice rejected the plate as an offensive celebration of slavery, according to the Supreme Court-focused news site SCOTUS blog.
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The SCV sued, saying the DMV is violating the free speech rights of drivers who would select the license plate. Texas countered that license plates are government property on which the government can decide its own message. (The First Amendment guarantees that the government won't abridge individuals' right to free speech, but the government is allowed to police its own “speech.”)
Texas which does celebrate an annual Confederate Heroes Day asserted in a case brief that it “is fully within its rights to exclude swastikas, sacrilege, and overt racism from state- issued license plates 14 that bear the State's name and imprimatur.”
In its own brief, the SCV shot back that having the annual holiday shows that “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.”
The case has attracted some unusual bedfellows, with the American Civil Liberties Union, pro-life groups, and even the satirist P.J. O'Rourke filing briefs in support of the SCV.
The AP said Texas offers 350 varieties of specialty plates (including ones devoted to restaurants, the Boy Scouts, and blood donations) that brought in$17.6 million in revenue last year. The state does offer license plates commemorating “Buffalo soldiers” black regiments that fought Native Americans in the 19th century.
“There are a lot of competing racial and ethnic concerns, and Texas doesn't necessarily handle them any way but awkwardly sometimes,” Lynne Rambo, a professor at the Texas A&M University School of Law in Fort Worth, told the AP.
Five federal appeals courts have ruled in favor of the non- profit SCV, according SCOTUS blog, including, most recently, the U.S. Court of Appeals for the Fifth Circuit.
Several other states have allowed similar license plates. Around the time the Fifth Circuit ruled in the Texas case,the leaders of the North Carolina state legislature also appealed to the Supreme Court with the hope of protecting a state law that allows an anti-abortion “Choose Life” message but forbids an abortion-rights “Respect Choice” message, according to SCOTUS blog.
In a 1977 case, the high court ruled that the state of New Hampshire could not force its famous “Live Free or Die” plate on a resident who objected to it, saying in its decision, that state made people “use their private property as a ‘mobile billboard' for the State's ideological message” in violation of their First Amendment rights. The SCV has cited the case, Wooley v. Maynard, while Texas has cited other precedent that allows the government to regulate its own speech.
The court will now decide what kind of speech the cases present and which plates can persist. A decision is expected in June.