The U.S. Supreme Court has backed Texas’ decision to forbid specialty license plates sporting an image of the Confederate flag, a ruling that could have national implications for how free speech protections apply to government services.
In a 5-4 ruling released Thursday morning, the court ruled that messages on license plates constitute "government speech," as the state of Texas had maintained in court filings and oral arguments.
"A person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message," Breyer wrote. "If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate."
The four justices that joined Breyer in the majority were Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayer and Elana Kagan.
'We don't need to be scraping old wounds'
In a dissenting opinion, Justice Samuel Alito suggested it was absurd to assume all of the messages on hundreds of state-approved specialty license plates were government speech. He noted that Texas has approved license plates for out-of-state colleges that compete against the University of Texas, including Notre Dame and the University of Oklahoma.
"Would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?" Alito wrote.
The Sons of Confederate Veterans applied in 2009 for a specialty license plate bearing the group’s logo, which features the flag of the Confederate States of America. Proceeds from the proposed plates would have raised money to place markers on the graves of Confederate soldiers and create monuments for Confederate heroes.
The Texas Department of Motor Vehicles denied the application after a number of groups including the Texas NAACP called the proposed plates offensive. While running for president in 2011, Gov. Rick Perry brought national attention to the issue by publicly backing the DMV’s decision and stating in an interview, “we don’t need to be scraping old wounds.”
The Sons of Confederate Veterans challenged the DMV’s decision in federal court, but a district judge upheld the state's decision to restrict what it determined to be offensive content. The group appealed to the U.S. 5th Circuit Court of Appeals, which reversed the lower court's decision. The court said the DMV had unlawfully discriminated against the Confederate group's belief that the flag was a symbol of Southern heritage in favor of those who were offended by it.
Government speech or free speech?
During oral arguments in March, the Supreme Court justices engaged in a spirited debate with Texas Solicitor General Scott Keller on whether free speech protections should extend to specialty license plates.
“Messages on government license plates are government speech,” Keller told the justices. “The state of Texas etches its name onto each license plate and Texas law gives the state sole control and final approval authority over everything that appears on a license plate.”
Several justices questioned whether Texas could claim any authority over the messages on its plates, noting that even businesses like Mighty Fine Burgers, an Austin hamburger chain, andREMAX of Texas have their own state-approved plates.
“Texas will put its name on anything and the idea that this is their speech, again, the only thing that unifies it is they have — that they get money from it,” Chief Justice John Roberts said.
Justice Anthony Kennedy wondered whether Texas had inadvertently created “a new kind of public forum” through its specialty license plates program.
“Do you want us to hold that because it’s government speech, the government can engage in viewpoint discrimination?” Kennedy asked Keller.
Some justices expressed frustration that the state did not have a clear policy for rejecting a proposed plate. When Justice Elena Kagan asked about other plate designs the Texas DMV had rejected, Keller said some had been rejected without a clear reason being stated in the public record.
“The plate's owned by the state,” Breyer said. “The state says, ‘We don't want certain messages to be displayed.’ And my question is why? Why not? What is the interest that the state is furthering in keeping certain messages off the plate?”
For all their skepticism toward the state’s argument, the justices seemed to push back just as hard against Jim George, the lawyer for the Sons of Confederate Veterans. Ginsburg quizzed George on hypothetical plate designs that the state of Texas might reasonably want to reject.
Could the state reject a plate design that included a swastika? Ginsburg asked. What about a plate with the word “Jihad?” What about a “Make Pot Legal” plate or one that said “Bong Hits for Jesus?”
George maintained that the state did not have the authority to reject any of those hypothetical plates.
“They either need to get rid of the program or they need to open up the program just to everybody else,” George said.
“Your position is that if you prevail, a license plate can have a racial slur?” Kennedy asked George later. “That's your position?”
“Yes,” George said. “I don't think there's any consistent decision otherwise.”