SCOTUS Rules Against Confederate Plates — Because States Have Free Speech, Too

The licensed plate at the center of a Supreme Court case.
The licensed plate at the center of a Supreme Court case.

If you're a driver registered in Texas and you want to customize your license plate with a picture of the Confederate flag, well, you can’t.

Says who? you may ask, clutching your confederate flag like a toddler clutches its coveted dirty blanket.

Says the Supreme Court of the United States, in a recent 5-4 decision. But before you start rebel-yelling about your own free speech, the Supreme Court wants to remind you that states have freedom of speech, too.

According to the Supreme Court, should you want to show your enthusiasm for the stars-and-bars on a government-issued, state-representing license plate, then that would actually be violating the freedom of speech of the State of Texas, which, in this case, gets the trump card over your own personal speech freedoms because it owns the plates.

See, the government can restrict private expression of free speech if it occurs on certain government property, property that is not typically a forum for such expressions— like state-issued license plates. And individuals can’t compel the state to say something it doesn’t want to say through government property.

According to the ruling written by Justice Stephen Breyer, state license plates work as government IDs. The Texas Department of Motor Vehicles owns and has to approve each specialty plate. That sort of control gives the government the ability to pick and choose what kind of custom messages they want (or, in the Confederate case, don't want) to be associated with.

If approved, the custom part of the plate would then share space with the typical state slogan or flag or color-way— an association so physically and symbolically close to the State of Texas that the custom message on the plate basically becomes the message of the state as well, the Supreme Court argued.

Plus, Texas has a history of using specialty plates for its own purposes, creating plates with messages like "Keep Texas Beautiful" or "Moms Against Drunk Driving" or "Fight Terrorism" — messages made by and for the state, examples of Texas exercising its own free speech rights through its license plates.

Although Texas accepts applications for custom specialty plates, the applications are subject to review by the DMV, and Texas law states that the DMV can deny an application if the design "might be offensive to any member of the public."

So when the Sons of Confederate Veterans submitted a specialty plate design that included a confederate flag in 2009, it's easy to understand why the Texas DMV might have been a little weary about putting an image so strongly symbolic of racism and hatred on the same plate as an outline of the state of Texas. The DMV denied the application. A lawsuit followed, and five years later the case landed in the Supreme Court.

The Supreme Court's decision seems grounded in common sense and, therefore, pretty cut-and-dry. But the dissent, led by Justice Samuel Alito, raises an interesting point.

"If a car with a plate that says 'Rather Be Golfing' passed by at 8:30 am on a Monday morning," Alito wrote in the dissent, "would you think: 'This is the official policy of the State—better to golf than to work?'"

Actually, that doesn't sound so bad. 

For anyone who feels like browsing the whole decision, here it is:


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