It is ironic that the Supreme Court’s decision about the display of the Confederate Battle Flag on Texas license plates came out when it did. The decision was issued on June 18th. The night before that, a young man who revered the Confederacy, attempted to “start a race war,” by murdering nine African-Americans who had gathered in their church to study the Bible. A nationwide flap ensued about the “stars and bars” flag and other symbols of the Confederacy, including the statue of Jefferson Davis which is prominent on the University of Texas campus.
The Supreme Court’s decision does not deal with the symbolism of the flag at all. The Court did not address the emotionally charged issues the flag provokes. The issue was whether the display of this emblem on a state-issued license plate was an expression of the views of the owner of the car, or of the government. It’s a tricky question. The state issues the license plate and provides for much of the content of it. But Texas, like many other states, allows people to purchase a “specialty plate” that displays a message of their own choosing.
The Sons of Confederate Veterans (SCV) designed a specialty plate that promoted their organization and featured the Confederate Battle Flag. They sought approval of the specialty plate, and were denied. The Texas Department of Motor Vehicles noted that “a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”
The SCV sued, and took the matter to the U.S. Supreme Court. The argument was pretty simple: this is my license plate, on my car, and I ought to be able to say what I want. You don’t have to be a constitutional scholar to know that free speech is protected by the First Amendment. And free speech frequently involves saying things that others may find demeaning, offensive, or even hateful. There was also a “viewpoint discrimination” argument. After all, Texas approved plate designs involving other flags and symbols, some of which are offensive to some groups. For example, a plate design honoring “Buffalo soldiers” was offensive to some Native Americans. Despite that, the DMV approved their specialty plate.
There is no question that the SCV would have prevailed in this case if the Court had determined that the message on the license plate was the personal expression of the person who purchased the specialty plate. After all, people can put a Confederate flag bumper sticker on their car and can fly the flag on their private property. So why not on a license plate that I buy with my money to put on my car?
By a 5-4 margin, the Supremes determined that the license plate was the expression of the government, not the individual. The Court held that the government is not limited by the Free Speech Clause of the First Amendment. It can freely choose what it wants to say, what it wants to promote and what it wants to discourage. As the majority opinion notes, “Were the Free Speech Clause interpreted otherwise, government would not work.” Cities could not promote recycling. Schools could not promote vaccination.
This does not mean that governments are as free in their expression as private individuals are. The Court notes that “Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech.” For example, governments cannot promote religion because of the Establishment Clause. Texas schools cannot use public funds to advocate for passage of a bond issue because of state law restrictions. Nevertheless, this decision strongly supports the notion that a governmental unit, such as a school district, can promote certain causes without violating the First Amendment. It would seem logical that school districts could promote such things as regular attendance, reading books to children, volunteering in the school and other good causes relating to the primary mission of the school.
As usual with Supreme Court cases, the dissenting opinion is more interesting. Justice Alito had a bit of fun pointing out that one Texas specialty plate actually promotes the Oklahoma Sooners! He wonders if a person seeing the OU logo on a Texas plate might think “that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?”
The case is important and worth your lawyer’s attention. It’s called Walker v. Texas Division, Sons of Confederate Veterans, decided by the U.S. Supreme Court on June 18, 2015. It was the four liberals (Breyer, Ginsburg, Kagan, Sotomayor) teaming up with Justice Thomas to form the majority.
DAWG BONE: PUTTING THAT OU LOGO ON A TEXAS LICENSE PLATE MAY BE LEGAL. BUT IT’S WRONG.