Supreme Court Says Texas Can Ban Confederate Flags on License Plates

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 23, 2015

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The mass murder at the Emanuel African Methodist Episcopal Church in Charleston has focused attention on the symbolism of the Confederate flag – including the one that continued to fly at full-staff above the South Carolina Capitol in the days following the attack.

According to the Washington Post,

The flag has become a symbol of cultural identity, primarily for white southerners, while African American civil rights groups say it represents the South’s willingness to fight a war in order to preserve slavery.

Confederate FlagThe South Carolina flag is a relatively recent tradition — it was first flown above the Capitol in 1962 – as a symbol of defiance to the Civil Rights Movement.

This particular flag is governed by special rules. According to a press secretary for the governor, “the governor does not have legal authority” to order the flag lowered to half-staff, as other state flags have been. Only the South Carolina General Assembly can do that, and it ended its legislative session on June 5, before the killings.

However, just as South Carolina clings to this symbol of the past, another Southern state has rejected its use on license plates.

Specialty Plates

Texas offers vehicle owners a choice between generic license plates and specialty plates.

As reported by the International New York Times, Texas allows hundreds of types of specialty plates, for college alumni, sports fans, and service organizations.

However, the state refused to authorize license plates bearing the Confederate flag sponsored by the Texas division of the Sons of Confederate Veterans (SCV).

The state board that reviewed plate applications found that “many members of the general public find the design offensive” and 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

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The Supreme Court Decision

The SCV group fought for the license plates all the way to the US Supreme Court, which ruled 5 to 4 that the state didn’t violate the First Amendment when it refused to allow the plates.

The Court noted that

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

The Court stated that “government would not work” otherwise:

How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?

Thus, held the Court, “when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”

In the Court’s view, the license plates conveyed “government speech,” and that people used the specialty plates to suggest that the government endorsed the message on them. Otherwise, motorists “could simply display the message in question in larger letters on a bumper sticker right next to the plate.”

Nine other states do allow drivers to choose plates that feature the Confederate flag.

If you have questions…

If you have questions about the First Amendment and free speech, you may wish to consult a Constitutional law expert in your area.

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