Dead Confederates, A Civil War Era Blog

Federal Court: State Acted Within Authority on SCV Plates

Posted in Memory by Andy Hall on April 15, 2013

scv_plate3-200x109I was sure wrong about that one. While I thought the case would turn on the Equal Protection Clause (because the state issues specialty plates to everyone and their dog already), and thus go in the SCV’s favor, the court rejected that notion, in part because the SCV has recourse to other avenues (such as direct action by the Lege) to get that accomplished:


Although suggesting a petitioner for judicial relief should look to the legislative branch for assistance is usually the practical equivalent of there being no relief available, here the Texas Legislature can and frequently has approved a variety of plates — including controversial plates, such as ‘Choose Life’ — by direct legislative action.


As it happens, the Lege is in session in Austin right now, so there’ s six weeks left to get some action on this, if the Texas SCV chooses to go that route.

I also thought this, from the ruling, was interesting:


The SCV repeatedly argues the fact the Buffalo Soldiers plate was approved indicates SCV was subjected to viewpoint discrimination. . . . [The] SCV speculates Native Americans would be offended by the Buffalo Soldiers plate, because of the role played by African-American troops in the frontier wars of the nineteenth century. However, the record does not support this assertion: in contrast to the chorus of negative public comments raised against the SCV’s plate, there appears to have been no significant objection to the Buffalo Soldiers plate, rendering SCV’s assertion the Buffalo Soldiers plate is equally derogatory at best purely speculative.


This encapsulates what I was trying to get at when I wrote this post. Whether the SCV thinks that the Buffalo Soldiers “should” be viewed as offensive to Native Americans as the CBF is to some others, the evidence that that’s the case just isn’t there. It was a weak argument to begin with, and while I’m surprised at the court’s decision, I’m glad they saw that part of it the same way.

Still, it’s a surprising outcome I didn’t expect. On to the Fifth Circuit in New Orleans!

H/t Kevin.



6 Responses

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  1. M.D. Blough said, on April 15, 2013 at 9:40 pm

    I’m surprised too. Most of these cases actually are decided on First Amendment grounds, arguing that the government actor is engaging in a content-based restriction on speech which is must meet the strictest standard of constitutional review. The government rarely wins these cases. I read the decision. I think the judge did some serious hair-splitting in finding the license plates weren’t any kind of public forum. We’ll see how the Fifth Circuit rules. I do think the SCV made a serious strategic error with the Buffalo Soldiers argument.

  2. Billy Bearden said, on April 17, 2013 at 9:13 pm

    I do not think that Texas used Rutherford Institute, nor was the Viewpoint Discrimination argument utilized. Hopefully they will appeal. For myself, I have seen 1st hand a Sioux Indian protest Buffalo Soldier reenactors.

    • Andy Hall said, on April 17, 2013 at 9:21 pm

      I’m sure it will be appealed.

      As for the protests against Buffalo Soldiers, I know that they’re out there. Some even turned up to get sound bites when the SCV plate was being discussed. But apparently there was not much of “chorus” (the court’s term) when the Buffalo Soldiers plate was up for review and public comment.

    • M.D. Blough said, on April 18, 2013 at 12:36 am

      Billy-I’ve read the opinion ( which is attached to a Courthouse News article ( As the judge states on page 19 of the decision, “Rather, the case wholly turns on a matter of law—whether the First Amendment required the DMVB to accept the SCV’s specialty plate application.” So viewpoint discrimination was definitely argued (witness the heading on page 31 of the opinion, “C. Viewpoint or Content Discrimination”. The judge was ruling on motions for summary judgment filed by both parties. If there was evidence of any protests, chorus or otherwise, then it was the SCV’s responsibility to attach it to their motion for summary judgment. BTW, considering that it the only defendants in the matter were the members of the Texas Department of Motor Vehicles Board in their official capacities and the only issue was the decision to refuse to grant the SCV license plate application unless what you saw (1) occurred in Texas and (2) related to the decision to issue the Buffalo Soldiers plate which was made at the same Board meeting at which the SCV application was rejection (no one spoke against the Buffalo Soldiers plate at the Board meeting).

  3. U. S. Grant said, on April 19, 2013 at 1:16 pm

    This case is not over. It is viewpoint discrimination and violates the First AND 14th Amendments to the United States Constitution because the government has allowed 276 other specialty plates, all of which COULD be offensive to someone in some way. The State of Texas has to allow the SCV their plate or disallow the other 276. The rule about not allowing obscene symbols does not fly because the Confederate Flag is not obscene. it may offend some people but as I said there may be something on all 276 other plates to offend someone as well.

    • Andy Hall said, on April 19, 2013 at 1:18 pm

      “This case is not over.”

      I think I said exactly that.

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