U.S. Supreme Court Will Consider Significant Speech Doctrines in License Plate Case

Sons of Confederate Veterans

Sons of Confederate Veterans specialty license plate. (Texas Department of Motor Vehicles)

The U.S. Supreme Court will address two important concepts when it hears argument in Walker v. Sons of Confederate Veterans: government speech and viewpoint discrimination.

The case concerns whether Texas officials could deny a specialty license plate program to the Sons of Confederate Veterans (SCV).  Government officials denied the group a plate because the group’s plate logo contains a picture of the Confederate battle flag.   The SCV sued, contending that state officials violated its First Amendment rights.

One of the state’s argument concerns the government speech doctrine, under which a governmental entity has a right to speak for itself.  However, SCV argues that the specialty license plate is more private speech than government speech.

If the speech is considered private or even mixed (government and private), then First Amendment protections apply and it’s unlikely officials could ban the SCV plate.

SCV argues that when people see a vehicle with a specialty license plate affixed to the car, people associate that plate with the driver or owner of the vehicle more so than with the government.

Such a “private speech” aspect leads to the second important doctrine in this case – viewpoint discrimination.  The most fundamental of all First Amendment free-speech principles is that the government generally cannot discriminate against private speakers based on their viewpoint.  SCV contends that the state discriminated against its viewpoint that the Confederate flag is a symbol of heritage and history rather than a symbol of hate.

State officials contend that their decision to deny the specialty license plate was viewpoint neutral because they have not approved of a specialty plate that disparages the Confederate flag.

David L. Hudson, Jr., is First Amendment Ombudsman for the Newseum Institute’s First Amendment Center.

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