Thursday, June 18, 2015

Supreme Court Rules 5-4 on Texas Ban on Confederate License Plates

The Sons of Confederate Veterans plate design that started the issue.
The Supreme Court ruled today that license plate designs represent state speech and not personal speech, and consequentially that the Texas DMV has the right to reject submitted specialty plate designs for ideological reasons.  In a truly rare turn, the swing vote was not Kennedy, who voted with the conservatives.  Instead it was Thomas, who voted against the conservatives and with the liberals for possibly the first time in his life.

In April 2011, the Texas DMB board did something it rarely does – it rejected a specialty plate design.  In this case, it was offered by the Sons of Confederate Veterans, ("SCV") and it featured a “Confederate battle flag” (incorrectly asserted as such – it was the battle flag of the Army of Northern Virginia).  They were initially deadlocked, but then civil rights groups caught wind and it rapidly turned to a unanimous rejection.  Then the SCV sued.

SCV was good to go on the appeal, as the appellate court ruled that the rejection amounted to the state inserting its own speech into the speech of its citizens.  The Supreme Court reversal is an unusual one, in that it distinguishes itself from many precedents preventing the government from asserting its own speech into the speech of its citizens.  In this case, license plates, which are a feature of a vehicle, must have a design approved of by the State.

The New York Times reports that the flag does appear on license plates in Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia.  It is not clear if any of those states will ban those designs now that the Federal Supreme Court has made clear that doing so passes First Amendment review.