Confederate Flag Plates Ruled Government Speech

Sons of Confederate Veterans

Sons of Confederate Veterans’ proposed specialty plate.

Even when you select a specialty license plate for your car, it’s the government speaking, the U.S Supreme Court ruled Thursday.

In a 5-4 decision, the court ruled that specialty license plates – generally showing logos and slogans of private groups – are government speech, effectively immunizing Texas state officials from a First Amendment challenge.

Texas officials had denied a request by the Sons of Confederate Veterans (SCV) for a specialty plate, noting that many members of the public found display of the battle flag of the Confederacy to be offensive because it’s also used by racist groups like the Ku Klux Klan.

The SCV contended that Texas officials had engaged in illegal viewpoint discrimination – treating some speech or expression worse because officials did not like the viewpoints or messages conveyed.

A federal district court judge had ruled in favor of state officials, but a divided federal appeals court panel reversed, ruling in favor of the SCV.

That set the stage for the Supreme Court showdown, in Walker v. Texas Division, Sons of Confederate Veterans.

“In our view, specialty license plates issued pursuant to Texas’s statutory scheme convey government speech,” wrote Justice Stephen Breyer for the majority.

The problem First Amendment advocates have with this approach is that when people see a specialty license plate, they generally associate that plate with the driver or owner of the car, not the state.  In others words, the plate is more private speech, than government speech.

Justice Samuel Alito expressed this well in his dissenting opinion:  “As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?”

At the very least, a specialty plate is a combination of private and government speech, what some have termed mixed speech.

And, while Texas censored the SCV because it didn’t like the Confederate Flag or was fearful that many other people didn’t like the Confederate Flag, the First Amendment protects a whole range of speech that offends.

Former U.S. Supreme Court Justice William Brennan wrote in another case that arose out of the Lone Star state  – Texas v. Johnson (1989): “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

A great danger with the majority opinion is the failure to limit or cabin the government speech doctrine. Government officials may be able to censor a much broader range of private speech simply by claiming some level of governmental involvement.

That is bad for the First Amendment and freedom of expression.

David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute.

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