Supremes Are Looking at Texas Confederate License Plates

The Sons of Confederate Veterans argue that having the Confederate flag on their vanity plates is a freedom of speech.
The Sons of Confederate Veterans argue that having the Confederate flag on their vanity plates is a freedom of speech.

You'd think that the concept of Confederate license plates would go over wonderfully in Texas, but surprisingly that's not exactly the case. When the Sons of Confederate Veterans state branch (think mostly guys who like to dress up in gray wool and who really love all things Confederate) applied for a specialty license plate, the state decidedly didn't go for it. This led to some legal wrangling and now the issue has bounced all the way to the home of the Nine itself.

Yep, the U.S. Supreme Court has agreed to hear the case, Walker v. Texas Division, Sons of Confederate Veterans, Inc., looking at whether Texas had the right to reject a specialty license plate application from the state chapter of the Sons of Confederate Veterans.

This all started about five years ago when the Sons of Confederate Veterans applied for a specialty license plate showing the Confederate flag along with the name of the group and the year it was established, 1896. After several votes, the board for the Texas Department of Motor Vehicles, which handles the state license plate stuff, denied the application, saying that some people would interpret the Confederate symbol in negative and offensive ways (i.e. they might just conflate the Stars and Bars with slavery, the Old South, racism and the KKK, for starters.)

A district court agreed with the board but the case got kicked up to the U.S. Fifth Circuit Court of Appeals. The panel of three judges issued their ruling in July. In a 2-1 ruling, the Fifth Circuit sided with the Sons of Confederate Veterans, finding that the state was wrong not to approve the license plate. "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 majority said.

Attorney General and Governor-elect Greg Abbott argued against the decision in a brief filed on behalf of the state. "After this ruling, it is not apparent how the state could exclude profanity, sacrilege or overt racism from its specialty license plates," Abbott wrote in his brief.

Texas and the Fifth Circuit usually get along swimmingly, but the two parties found themselves at odds on this issue. That's less surprising when you consider that Texas, unlike true Deep South states like Georgia and South Carolina, has never been super into the whole Confederate flag thing. Maybe it's just because Texas has always been in more of a Lone Star state of mind, but while some states started changing their flags to carry that remnant of the Civil War (coincidentally a lot of states got into the idea of slapping the Confederate flag onto their state flag right about the time that desegregation got rolling, beginning with Brown vs. Board of Education) Texas seemed content to let people who wanted to get all Confederate do so on their own time with their own bumper stickers and flags.

Despite a vehement protest from Judge Jerry Smith, the Fifth Circuit ultimately chose free speech in this case. The Fifth Circuit judges decided that an average person would be able to look at a Texas-issued Confederate-flag-toting license plate and understand that the plate was a personal statement and not representative of the state. The Fifth also ruled that they needed to protect the free speech of the Sons of Confederate Veterans. "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 majority said.

Now that the Supreme Court has agreed to take up the issue, the question will come down to whether the state has control of its license plates or whether license plates are more private than public property and thus protected by freedom of speech, according to the Washington Post.

Meanwhile another appeals court found that Tennessee could issue "Choose Life" license plates because the plates are volunteer statements not directly connected to the state. There are similar cases percolating in the courts, though the Supremes haven't opted to add either the Virginia case (the state was issuing "Choose Life" anti-abortion plates and was found by an appeals court to be in violation of the Constitution) or the Tennessee case (the appeals court in that case found that the state could issue "Choose Life" plates because the plates are considered volunteer statements not directly connected to the state, according to Bloomberg). The Supremes will hear the case in the spring and issue a decision before the end of term next June.


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