WASHINGTON — The Supreme Court ruled Thursday that Texas is allowed to reject a license plate design that featured a Confederate battle flag. In a 5-4 decision authored by Justice Stephen Breyer the Court held that, “When the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”
“We hold that Texas’s specialty license plate designs constitute government speech,” Breyer wrote in an opinion joined by the unusual line up of Justice Clarence Thomas, Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor and Justice Elena Kagan. Breyer said that “Texas was consequently entitled to refuse to issue” the plates that were submitted by a group called the Sons of Confederate Veterans (SCV) and prominently featured the controversial Confederate battle flag.
The group sought to honor the reputation of soldiers who fought for the Confederacy during the Civil War.
Breyer said that because private speech was not at issue in the case, “just as Texas cannot require SCV to convey the State’s ideological message, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates.”
The decision is likely to affect specialty license plate programs in other states including a circuit split below concerning “Choose Life” plates concerning the issue of abortion.
“Many other states have similar specialty license plate programs, and today’s decision gives these states the power to control what messages it will permit on these plates,” says Mary Rose Papandrea of Boston College Law school.
In Texas, drivers can choose to have standard issue plates or plates with messages authorized by the Texas legislature. But there is a third alternative, and that was the question before the Court: individuals and businesses can pay and create a design for their license plates subject to the approval of the Texas Department of Motor Vehicles Board (DMVB). The plates are designed to raise revenue, and the DMV could reject the application if it was found to be “offensive to any member of the public.”
Texas argued that the speech is government speech, not private speech, and that the State is allowed to select the message that it is willing to support.
“Texas is not willing to propagate the Confederate battle flag by etching that image onto state-issued license plates that bear the State’s name,” Solicitor General Jonathan F. Mitchell argued in briefs. He said that drivers could decorate their cars with bumper stickers, “but they cannot commandeer the State into promoting the Confederate battle flag on a state-issued license plate.”
The Court took the unusual tack of including a picture of the proposed plate in its opinion.
“Free speech is a fundamental right to which all Americans are entitled, and today’s ruling upholds Texas’s specialty license plate program and confirms that citizens cannot compel the government to speak, just as the government cannot compel citizens to speak,” Texas Attorney General Ken Paxton said in a statement. “There remains many other ways for motorists to express their views on their vehicles.”