Dead Confederates, A Civil War Era Blog

Supreme Court to Hear Texas License Plate Case

Posted in Memory by Andy Hall on December 5, 2014


I’m a little surprised they agreed to hear this one:

The Supreme Court agreed this afternoon to rule on a state government’s power to set up a specialty license plate program that controls the messages that may be displayed.  It accepted for review an appeal by the state of Texas, seeking to defend a state agency’s refusal to allow an organization to use a Confederate flag on a specialty plate because it found that display offensive. . . .

The key issue in the license plate case (Walker v. Sons of Confederate Veterans) is whether the messages that are displayed on specialty tags are a form of government speech, so that officials can decide which to allow or to forbid.  If, however, they represent the views of the car or truck owner, then the government’s power to veto a message is more tightly restricted.

In a 1977 ruling, in Wooley v. Maynard, the Court treated a license plate message as a form of private speech displayed on private property, but it did not rule explicitly whether this was government speech or private speech more generally.  In the 2009 decision in Pleasant Grove City v. Summum, the Court decided that a government entity has a right to speak for itself, and thus has the authority to refuse to accept a symbolic monument for display in a public park.

The Court was asked in the Texas case, and in a separate North Carolina case that is now apparently being kept on hold, to clarify a split among federal appeals courts on whether vanity plate messages are to be treated as government or private expressions.  In the Texas case, a group that seeks to preserve the memory and reputation of soldiers who fought for the Confederacy sought state approval for a plate design that included the Confederate battle flag.

Ultimately, after a series of conflicting votes, a state agency turned down that design, saying that many people regard the rebels’ flag as associated with hatred toward groups.   The Texas Division of the Sons of Confederate Veterans sued, and ultimately won a decision by the U.S. Court of Appeals for the Fifth Circuit, declaring that specialty plate messages are a form of private speech, and that the state agency had engaged in forbidden viewpoint discrimination.


I’m not a fan of the plates, but for reasons I’ve outlined previously, my own view is that the Fifth Circuit ruled correctly. We’ll see what the Supremes have to say next spring.



8 Responses

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  1. Al Mackey said, on December 5, 2014 at 10:52 pm

    Question, Andy: Hypothetically, can a KKK group design a license plate with a KKK hood on it and have the state issue those specialty plates, since it is private speech?

    • Andy Hall said, on December 5, 2014 at 10:57 pm

      I doubt that’s come up. But it is relevant — as I understand, there have been cases where the Klan successfully litigated to be part of adopt-a-highway programs in other states, and got to have their names emblazoned (at state expense) on big roads signs touting their volunteerism. That seems to me to be a parallel case on the same principle.

  2. OhioGuy said, on December 5, 2014 at 10:55 pm

    I agree, Andy, I don’t like the CBF and cringe every time I see it displayed outside a museum or in a clearly historic context relating to the late insurrection. However, these misguided folks have a right to express their viewpoint. And, I believe that this is a private expression. This is not Germany, where there is no First Amendment and the government can outlaw the display of Nazi symbols. As I’ve said before, why don’t these folks get a clue at start using the Bonnie Blue flag, or one of the CSA national flags, to represent their heritage. Makes me think that at least some of them kind of like the association of the CBF with the KKK and other less than honorable parts of the South’s history. If it’s “heritage not hate,” why use a symbol that the African American population of our country uniformly views as a symbol of white supremacy, segregation and slavery?

  3. Jimmy Dick said, on December 6, 2014 at 12:26 pm

    I have a strong feeling that the SCOTUS is going to rule that the plates can feature the symbol of ignorance, racism, and tyranny on them in the name of freedom of speech. I also think that this will be quite useful in identifying stupid ignorant racist white trash, where they live, where they work, and where they go. I expect trailer courts full of SCV plate bearing vehicles to pop up. But since the organization can only attract 30K people due to their advertising of an ignorant and factually incorrect history in connection with displaying their support of racism and oppression I’m not too concerned.

    Basically, it speaks well that so many potential members refuse to join a group that openly advocates racism.

    • Harvey Johnson said, on December 8, 2014 at 8:05 am

      Mr. Dick:

      Last month’s vote in South Carolina demonstrates Southerners can honor their Confederate Heritage and the Rebel flag w/o being racist. They voted an African-American to the U.S. Senate and *simultaneously* elected a lady governor who favors flying the flag on the Capitol grounds. See below:

      [link deleted]

      • Andy Hall said, on December 8, 2014 at 8:40 am

        It’s more accurate to say that Governor Haley wants to maintain the status quo and not revisit the flag issue at all. My impression is that she would prefer to avoid the subject altogether, which seems entirely understandable to me.

  4. H. E. Parmer said, on December 7, 2014 at 11:10 pm

    I can’t wait to see the new Satanic specialty plates. I bet they’d be a big seller with the death metal crowd.

    • Andy Hall said, on December 8, 2014 at 7:42 am

      It’s Oklahoma that’s learning a lesson about unintended consequences. They passed a law allowing privately-funded religious monuments on their state capitol grounds, and now have to deal with an application from the satanists. High-damn-larious.

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