Supreme Court

Supreme Court Says Texas Ban on Confederate Flag License Plates Does Not Violate First Amendment

"When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says."

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In a 5-4 decision issued today, the U.S. Supreme Court held that the Texas Department of Motor Vehicles Board did not violate the First Amendment when it refused to create a specialty license plate bearing an image of the Confederate flag.

The case of Walker v. Sons of Confederate Veterans originated in 2009 when the nonprofit group Sons of Confederate Veterans, Texas Division, sought to sponsor a speciality license plate under a state program which generally allows nonprofits to submit their own designs. But the Texas Department of Motor Vehicles Board refused this particular application, arguing 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." In response, the Sons of Confederate Veterans filed suit, charging the state with violating the First Amendment to the U.S. Constitution.

Credit: C-SPAN

Today the Supreme Court ruled in the state's favor. "When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says," declared the majority opinion of Justice Stephen Breyer. Because license plates are not "public forums," Breyer maintained, the state is free to exclude whatever messages it deems offensive. "Just as Texas cannot require [the Sons of Confederate Veterans] to convey 'the State's ideological message,'" Breyer wrote, the Sons of Confederate Veterans "cannot force Texas to include a Confederate battle flag on its specialty license plates."

In a surprising twist, Breyer's majority opinion was joined not only by his three fellow liberal justices, but also by conservative Justice Clarence Thomas. To say the least, it's not everyday that you find Thomas, Breyer, Ginsburg, Sotomayor, and Kagan comprising a majority bloc.

Writing in dissent, Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy, accused the majority of taking "a large and painful bite out of the First Amendment."

According to Alito, Texas has converted "specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That," Alito concluded, "is blatant viewpoint discrimination."

The Supreme Court's opinion in Walker v. Sons of Confederate Veterans is available here.

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  1. So government cannot be compelled to “speak” in a way that it might find distasteful, but small businesses must do so for “Public Accommodation” reasons. Sure why not.

    1. It is consistent if your assumption is that it is government’s job to police wrong thinking.

  2. Isn’t “Texas ban on Confederate Flag License Plates” a-bit misleading?

    1. What’s misleading about it?

      1. Refusing to create a specialty plate isn’t a ban. The headline reads as though Texas won’t allow Confederate plates of any kind.

        1. Well, since Texas is the only entity that is legally permitted to produce license plates…

          …or are you reading it as “Those fuckers from Alabama with their SoCV plates are in for it when they reach the border?”

          1. My initial interpretation was – holy crap, anyone driving through Texas with a vanity Confederate license plate holder or plate is trooper-fodder.

        2. “The headline reads as though Texas won’t allow Confederate plates of any kind.”
          Yes, that’s exactly what happened. Go to the Texas DMV specialty plates page and count those with *any* sort of confederate symbolism.
          They have causes, professions, schools (including Midland High School), spors teams, military. Heck, they have one for “Dr. Pepper”. Nothing confederate or even Civil War.

          1. That would mean that they won’t issue Confederate plates of any kind. If they didn’t allow them, they would stop cars from any states that do as well.

            1. I’m having a pronoun failure. Who are the ‘they’ to whom you refer? Are they all the same ‘they”?
              Texas won’t allow the plates. Other states do. Virginia for example has Special Interest plates for Civil War, Robert E. Lee, and Sons of Confederate Veterans (both car and motorcycle)

              1. “They” refers to the government of Texas in all instances.

          2. I bet you could get away with using the 1st Confederate Flag rather than the Battle Flag.

  3. Isn’t “Texas ban on Confederate Flag License Plates” a-bit misleading?

  4. The majority relied heavily on circular logic and on speculation as to people’s mental states. Alto did a good job of skewering the notion that specialty plates are government speech.

  5. So does this mean states won’t be able to put religious statements on license plates anymore?

    Oh, wait…the feds still put them on money. Nevermind. FYTW.

    1. No. The law gave more power to the state to decide, not the reverse.

      States are still allowed to accept Confederate Flag designs if they wish. Texas refused, and the decision was that Texas was allowed to refuse.

      1. I thought the entire justification for religious tags was that the state didn’t select the tags. This opinion would seem to gut any idea of viewpoint neutrality.

    2. The court noted that license plates are speech by the state government. Have they done that before? If not, we should see some lawsuits soon that use this precedent to try to get things like “In God we Trust” off license plates.

      1. I wouldn’t be surprised if you’d see those lawsuits, since we’ve seen such lawsuits before (and also about chaplains and prayers). This decision alone wouldn’t control that, though.

        Coins and prayers and so forth are already unambiguously government speech.

      2. No, they haven’t?and that’s exactly what I’m thinking. Except not, because, you know, “In God we trust” is on money and anyone who tries to do something about that is just a whiny atheist whining about being offended.

        What I can’t figure out is why any government speech at all is legal except what’s absolutely necessary for government to execute its duties as outlined in the relevant constitution. Now they shouldn’t be allowed to print any message on a license plate other than “pay your taxes and don’t murder people.”

          1. I have come here to chew bubblegum and kick ass… and I’m all out of bubblegum

            1. The sunglasses give me a fuckin head-ache.

        1. Um I take umbrage with their ability to print any messages at all. Think of all the beautiful gridlock if they weren’t able to say anything at all.

          1. Well, I take umbrage with their existence. But even according to their own bullshit, it’s not clear why they’re allowed to speak.

            1. True.

            2. They are allowed to speak because they are a collection of individuals who are allowed to speak. Just like any corporation, club or other group of people.

              I don’t know why speech is an issue here at all. State governments decide what goes on license plates. How is that controversial or new in any way?

              1. It’s is potentially controversial in a number of ways. License plates were traditionally viewed as a limited forum created by government for private speech, not as a form of governmental speech. That is why having a vanity plates with religious themes did not implicate the Establishment Clause, because it was individuals speaking and not government. This ruling potentially turns that on its head. Furthermore, if certain plates are more popular than others, there is potentially an equal protection claim, as government is promoting some ideas/groups/etc. over others. It also raises the question for the justification for added costs for vanity plates, if they are really merely government speech.

                1. This case is not about vanity plates. It is about special plate designs. Big difference. Vanity plates clearly are individual expression. The special designs, even if people get to vote on which ones should be available, are a rather different thing. Is Texas banning a vanity plate that says “CNFDRAT” or something, or just the special plate design honoring confederate veterans or whatever it is?

        2. I don’t see how government speech can be a thing at all. Speech is something that individuals do.

          Whatever it is, license plates with messages are annoying. I suppose it generates voluntary revenue, but I’d bet that it is not being used to lower taxes somewhere else.

          1. You should dust off your copy of the Citizens United and Hobby Lobby cases. Groups and organizations still have the ability (and right) to speak. On their own behalf.

            1. I think you misunderstand my point.

              They don’t have the ability. Only the individuals comprising them do. Speech is opening your mouth and saying something.

              Sorry, I refuse to go along with using “speech” to refer to all sorts of communication. That’s what “press” is in there for. Speech is speech.

              1. Except there are decades of SCOTUS precedent that says you’re wrong. Organizations can speak as organizations, independently of their members. And common sense tells why. If they didn’t, an organization (whether it be the NAACP or the Reason Foundation) couldn’t get a permit to speak or host a rally or organize a parade as an organization. Each individual person in his or her own capacity would have to do so separately. Apple wouldn’t be able to issue press releases in its own name, so how would businesses communicate with consumers.

                The reality is that while you are correct that separate personhood, and all of the accompanying benefits, for organizations is a legal fiction, it is the state of the law. Organizations can speak independently of people.

                1. SCOTUS never gets anything wrong? You are still missing my point.

                  I’m really just quibbling about the words used, but I think it is important. I think that any organization absolutely has the right to put whatever message out that they want, by whatever means. I in no way disagree with that.
                  My problem is with the abuse of the “press” part of the first amendment. It has been taken to mean “professional journalists” in many cases and that is just wrong. Speech and Press should be taken together to mean an absolute freedom of expression for any individual, group or organization.

                  So I will continue to insist that speech is just what it says: someone speaking, whether that be as an individual or on behalf of a corporation or anything else. You can’t speak collectively because each mouth is controlled by only one individual. Press covers all of the non-speech means of communication, which can also be employed by any individual, group or organization.

    3. Yeah, that’s the thing. The court said that the license plates are the state’s speech. That they are not billboard’s allowing people’s speech.

      That means that religious statements on license plates are statements by the state. Not statements by the people.

      1. If that’s true it means all statements on license plates are statements by the State.

        So the next time you see A55MAN on a license plate, that’s the government’s official message.

        It’s a stupid decision.

      2. This just confused me. Can the state decide to approve a pro-life license plate and reject a pro-choice plate? Normally that would be viewed as the state limiting free speech based on content.

        Now, that situation would represent advocacy by the state.

        What if they accept both? Sounds like multiple personality disorder.

        1. Yeah. Expect further lawsuits. My prediction is states get to do whatever they feel like, multiple personality or not, and no one will ever have standing to complain.

      3. See the offical Texas “Dr. Pepper” license plate.

  6. “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”

    *** rising intonation ***

    I think I see how King V. Burwell will play out ….

  7. Breyer maintained, the state is free to exclude whatever messages it deems offensive.

    I don’t see it as a problem that the state BMV wouldn’t use taxpayer money to print controversial license plates. But the kind of overly broad language they’re using for this sets precedents for other, unrelated cases.

    Couldn’t they just include a mandatory trigger warning bumper sticker to go along with the license plate.

    1. Yeah, I’m not upset about the decision, but I’m annoyed that Thomas didn’t write a better, more speech protecting decision rather than assigning it to Breyer (which has to be a first.) Breyer is terrible.

      Probably Thomas switched votes after Alito and Breyer were already circulating their assumed majority and dissent, making the opinions switch roles.

      1. Did Thomas vote the way he did because he’s black? Yes, Did Scalia, Alioto, and Roberts vote the way they did because they’re white? Yes. Did they all violate their supposed principles? Yes. Is that a first? No.

    2. The problem is that if they are going to print ANY license plates that carry a personal message, I don’t see how they can block ones that are offensive.

      “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”

      Insofar as you accept the idea of the government as a type of corporate entity that can “speak” in a legal sense (and I do think that makes sense), I agree with this.

      The problem is that Texas isn’t “speaking” when it creates vanity license plates. It’s giving it’s citizens a forum with which to speak.

      I suppose you could argue that the state of Texas has a type of ownership of the forum, and so has the power to decide what it will and will not allow. But that seems to dangerously, dangerously erode the First Amendment, if not run completely opposite of it.

      I’d say that if Texas is going to allow people to use license plates as a speech forum, it has to allow all speech. The alternative is to say that license plates are not speech forums. I’m OK with either. The latter seems to be the best solution, though.

      1. Well, they did rule that they are not speech fora. They are government speech, and the government is apparently allowed to say what it wants. The problem is why that is the case?where the government derives the power to speak about anything other than the execution of its duties as outlined in the constitution.

        1. They are government speech, and the government is apparently allowed to say what it wants

          OK, so I now understand that is what the ruling said. But that is not how license plates have ever been treated in practice. People can personalize license plates, that is the point.

          1. Yes, and those have generally been considered a public forum, or something similar, IIRC. But this isn’t about vanity plates; it’s about the tagline on the license plate. Like when you get a special “for the children” or “alum of XYZ” or something plate.

            1. Same logic applies

            2. Those are also vanity plates.

      2. States that have privatized BMVs (e.g. I think Mitch Daniels did that in Indiana) could pretty much completely get around this issue, and others…

      3. I agree. In state schools and state departments only. (Hunting plate that hoes to Dept of Fish and Game for example.)

      4. The best solution would be to eliminate vehicle registration. Then people can put whatever they want on the back of their cars.

      5. I think there is a distinction to be made between vanity plates where people choose the letters and numbers for their registration and the special message plates offered by the state. The former certainly looks like a forum for individual expression. The latter, not so much, unless they are going to make a different custom plate for everyone.

    3. They charge extra for the plates. Specialty plates are money makers, that’s why there are so many of them.

  8. license plates are not “public forums,” Breyer maintained

    So, that means we can remove our private license plates, right? RIGHT?!

  9. Just as Texas cannot require [the Sons of Confederate Veterans] to convey ‘the State’s ideological message…’

    Unless they want to drive a car, in which case whatever ideological message Texas puts on its license plates is very much required.

      1. I like to think of that as more of a threat than an ideological message.

  10. Existence would be very plastic without wind.

    1. Starting the party a little early today, AC?

    2. Wind farms take kinetic energy out of wind. They’re using environmentalism to make us all plastic, statist puppets. You’re a poet by saying so much with so little, here. +1 Economy of Words

  11. Last “Thomas plus four liberals” decision I can remember is US v. Bajakajian, where Thomas wrote an opinion saying that a case of civil forfeiture went too far in taking all of someone’s money for a petty crime, violating the Eight Amendment.

    1. The petty crime of failing to report the cash.

    2. taking all of someone’s money for a petty crime

      Even though they likely got their money back, the process is still the punishment.

    3. Is Thomas possibly viewing this as an example of Federalism? If that was the case, I’d expect a concurrence, but that could explain it, maybe.

  12. Once the state opens up vanity plate designs to non-profits, then claims the right to select what art is offensive and what is not, it most certainly an issue of denying access to disfavored speakers of otherwise equal standing. Like it or not, the opening of access to designing vanity licence plates makes them a public forum.

  13. So does this mean my Sons of Mexican Loyalists will be simularly banned or is it a very narrow group who fought on the losing side of a revolution?

  14. According to Alito, Texas has converted “specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That,” Alito concluded, “is blatant viewpoint discrimination.”

    Goatfucking Jesus. Further proof, as if any were necessary, that Alito is sliding rapidly into some sort of debilitating dementia.
    Get back to me when they start arresting people with confederate flag bumper stickers.

    1. I don’t see a problem with what Alito is saying – saying that “[w]hen government speaks, it is not barred by the Free Speech Clause from determining the content of what it says” is begging the question of whether or not it is the state speaking. As long as the state is willing to produce specialty plates for groups it seems to me they certainly are egaged in content-based discrimination by deciding which groups are offensive and which are not. I am offended by the fact that my tax dollars are taken to support billionaire Arthur Blank and his Atlanta Falcons (marketed, of course, as “your” Atlanta Falcons just as a FU to the taxpayers) but that doesn’t stop Georgia from issuing Atlanta Falcons plates.

  15. If you take the need to state license plates at face value, specialty plates shouldn’t be allowed. Many of Pennsylvania’s are entirely illegible, but both Texas and Pennsylvania have excellent, clear default plates.

  16. So long as bumper stickers are still legal, this whole case is just pointless trolling.

    Custom license plates or specialized designs all seem a bit off. Government mandates a visible government identifier, then offers to “personalize” it further for an extra fee.

    Pardon the Godwin violation, but it’s like Nazis offering concentration camp prisoners the option of having a choice of font in what number they will tattoo them with.

    1. And yet look how many people pay for the privilege.

    2. This is not a question of whether a state is required to provide customizable license plates, but rather if they do, can they pick and choose “acceptable” messages.

  17. There are so many of these “specialty” plates in Montana, you could paint any goddam thing you wanted on a license plated sized piece of metal and stick it on your car, and unless a cop actually ran the number, nobody would know.

  18. I guess this plate is an establishment clause violation, right?

    1. That site is great. I’m moving to TX and putting this on my truck.

  19. I thought that once government made its fora available for speech, it wasn’t allowed to discriminate based on content?

    What’s the difference between Texas saying “we won’t allow Confederate imagery on the license plates we make available to the public” and NY saying “we won’t allow anti-Palestinian/pro-Israel messages in the ad space we make available to the public”? Because I’m pretty sure the courts have ruled that latter is not allowed, but apparently the former is.

  20. “In a surprising twist, Breyer’s majority opinion was joined not only by his three fellow liberal justices, but also by conservative Justice Clarence Thomas.”

    I don’t see how it’s surprising given

    (a) Justice Thomas’ interest in federalism and

    (b) his, shall we say, sensitivity to racial issues (contrary to certain critics who think he’s just a smoked cracker)

  21. You know who else had a Confederate license plate?

  22. Alito has it exactly right. Those specialty plates ARE small billboards, the public pay extra to have them. If they don’t pay they get the standard ugly nes.

    Funny how I was certain Kagan and Sotomayor were with the majority.

    I wonder what proof or subatantiation the Texad DMV presented to prove their statements about the percieved “meaning” of that Confederate Battle Flag….. they are wrong, and I’d be curious to know the research behind their adamant and unfounded declaratioin.

  23. The Supreme Fools blow it again.

  24. Who is “Clarence Thomas”? There is no “Clarence Thomas”. The true name of the man you are referring to is LONG DONG SILVER.

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