Confederate Plate Ban in Texas Struck Down

     (CN) - Texas violates free-speech rights in refusing to issue specialty license plates with the Confederate battle flag, the 5th Circuit ruled.
     The Texas division of the Sons of Confederate Veterans sued members of the Texas Department of Motor Vehicles Board in Austin three years ago after its application for a specialty license plate was deemed potentially offensive.
     A group made up of male descendants of Confederate veterans, the SCV describes its mission as honoring and keeping "alive the memory of the Confederacy and the principles for which Confederates fought, thus giving the world an understanding and appreciation of the Southern people and their brave history."
     The proposed license-plate design included the organization's name and its seal bearing the Confederate battle flag. SCV argued that nine other states, all of them Southern, issued similar license plates.
     Noting that the board had accepted a request for plates honoring the Buffalo Soldiers, even though they were "offensive to Native Americans because the all-black cavalry helped fight Native Americans in the Indian Wars from 1867-1888," SCV also argued that the rejection of its proposal amounted to viewpoint bias.
     A federal judge sided with the state, granting it summary judgement and ruling the board had made a reasonable, content-based regulation of private speech - as opposed to public speech by the government.
     In a 2-1 reversal Monday, the 5th Circuit deemed the rejection "impermissible viewpoint discrimination" that violated the group's free speech rights.
     Texas failed to show that its decision was based solely on the "objective inquiry" of how members of the public would react to the license plate, according to the ruling.
     "In explaining its denial of Texas SCV's application, the Board stated it denied the plate, 'specifically the confederate flag portion of the design, because public comments have shown that many members of the general public find the design offensive,'" Judge Edward Prado wrote for the majority in New Orleans. "By rejecting the plate because it was offensive, the board discriminated against Texas SCV's view that the Confederate flag is a symbol of sacrifice, independence, and Southern heritage. The board's decision implicitly dismissed that perspective and instead credited the view that the Confederate flag is an inflammatory symbol of hate and oppression."
     Prado cited the state's history of approving plates for veterans of other wars as further proof of viewpoint discrimination.
     "We understand that some members of the public find the Confederate flag offensive," the 20-page opinion states. "But that fact does not justify the board's decision; this is exactly what the First Amendment was designed to protect against."
     Though Judge Jerry Smith said he agreed "with much of the cogent and well-written majority opinion," his 20-page dissent took issue with the majority's use of a "reasonable observer test" and would have affirmed the lower court's ruling.
     In deciding whether the plates are purely the state's speech or that of private citizens, the majority created a "false dichotomy," according to the dissent.
     "Because Texas cannot constitutionally force its citizens to carry its message on their cars, there will always be an element of private expression in specialty license plates - no matter their method of distribution or the author of their design - because the driver must have voluntarily chosen to accept a Texas plate," Smith wrote. "If an affected element of private speech is enough to foreclose application of government-speech doctrine, then the majority's reasoning reduces to this: Texas may not speak on its license plates."
     SCV officials did not immediately respond to a request for comment Monday evening.