ORLANDO (CN) – Florida legislators trampled free speech by rejecting a specialty license plate that features five Confederate flags and two coat buttons worn by Confederate soldiers, a federal judge ruled.
Florida’s specialty plate program requires organizations to submit their applications to the Department of Highway Safety and Motor Vehicles. Once an application for a specialty plate is approved, the department submits a plan to the Legislature, which then passes a bill to create the specialty plate.
In 2008, the Florida division of the Sons of Confederate Veterans, a heritage organization for descendents of Confederate soldiers, submitted an application to create a “Confederate Heritage” specialty plate. Although group met all the application requirements, the Florida legislature never enacted their proposed license.
Sons of Confederate Veterans and its vice president John Adams, who serves as the chairman of group’s Confederate Heritage Plate Program, challenged the constitutionality of Florida’s specialty license program, arguing it did not specify any criteria to be applied in the approval process, allowing the state to engage in viewpoint discrimination.
A federal judge previously dismissed the group’s claims against various Florida legislators, including the president of the Florida Senate and the chairman of the House Committee on Infrastructure, finding those individuals were protected by legislative immunity. The court agreed, however, to let the group sue the highway department’s executive director, Electra Theodorides-Bustle.
Theodorides-Bustle argued that the specialty license program did not violate the First Amendment since specialty plates constituted government speech, which is not subject to scrutiny under the Free Speech Clause.
U.S. District Judge John Antoon II disagreed, ruling that specialty plates were private, rather than government, speech. Specialty plates “serve as ‘mobile billboards’ for the [sponsoring] organizations and like-minded vehicle owners to promote their causes” Antoon wrote (brackets in ruling). The variety of available specialty plate messages further suggests that specialty plates are a means of communicating private speech, Antoon added.
A section of the specialty plate program that provides the Legislature with “unfettered discretion to engage in viewpoint discrimination when declining to approve a specialty license plate application” is unconstitutional, the court ruled. While the section provides instructions regarding the application steps and how to submit the plan to the Legislature, it does not specify any criteria to guide the Legislature when making a decision on the application, Antoon wrote.
Severing the unconstitutional provisions from the remainder of the section would remove the mechanism for approving specialty plate applications altogether, according to the ruling. No other section of Florida law provides such a mechanism.
Theodorides-Bustle had also contended that the Confederate descendants failed to state a claim for relief and that the suit was barred by the 11th Amendment.
Antoon rejected both arguments. The court ruled that the highway department was responsible for reviewing specialty plate applications and developing the plates, and that Theodorides-Bustle was a proper defendant since she had the authority to enforce the challenged statute.