By Michael A. Lindenberger
Texas has every right to declare the Confederate battle flag too divisive to be emblazoned on its specialty license plates, the Supreme Court ruled Thursday in a 5-4 decision that capped a heated debate over government regulation of speech.
Writing for the majority, Justice Stephen Breyer said messages of any kind stamped on a state license plate are "government speech," not private messages protected by the First Amendment. That's true even if, as in Texas, officials have routinely approved plates designed by hundreds of schools, businesses and organizations, the court ruled.
"When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says," Breyer wrote.
Justice Samuel Alito's fiery dissent argued that when a government opens up a forum -- in this case space on its license plates -- to outside groups, it can't pick and choose which messages are offensive and which are OK.
In 2013, the Texas Department of Motor Vehicles board rejected as too controversial a proposal by the Texas chapter of the Sons of Confederate Veterans to sell a plate featuring its logo, which includes an image of the Confederate battle flag. It would have raised money for the group.
The request prompted an hours-long public hearing full of emotional appeals about the meaning of the flag. Was it a way to honor Confederate veterans, as supporters of the plate argued? Or has it come to represent hate and terror for black Americans who see only its use by racist groups over the years? The board unamiously decided it would not allow the plate.
The flag's meaning is no abstract argument: Hours after the court's ruling was released, South Carolina authorities announced that the white man being held in connection with Wednesday night's racist massacre of members of a historic black church in downtown Charleston had driven a car adorned with a Confederate license vanity plate.
Already disappointed by the court's ruling, the Sons of Confederate Veterans' national spokesman reacted bitterly to the news out of South Carolina Thursday afternoon.
"Now to hear that this son of a [expletive] had a Confederate plate," said former U.S. Rep. Ben Jones of Georgia, famous for his role as Cooter in the television show The Dukes of Hazzard. "That said it all for me. Those people are the ones who are defining this issue and not the millions and millions of good people who see it as a symbol honoring their ancestors. It's a crying shame."
He blamed racists for tarnishing a flag that he said should honor all descendants, white and black, of soldiers who fought for the South as did two of his great-grandfathers.
More than anything, it's that history of hate that led to Thursday's dispiriting decision, he said.
"There's nothing we can do about it. You can't appeal the Supreme Court," he said. "But it won't make me feel any differently. Except to make me more angry at the bigots and racists who desecrate the Confederate symbols."
Thomas plus liberals
Whether that part of the flag's history played a role in the unusual composition of Thursday's majority is impossible to say. But the court's lone black justice, conservative Justice Clarence Thomas, joined with its four liberal members to uphold Texas' right to block the plates bearing the flag. Thomas, a Georgia native, did not write separately to express his views on the case.
His vote was enough to put the rest of the court's conservatives on the losing end. Alito warned in his dissent that the decision could affect far more than what motorists see and don't see on Texas license plates.
"The court's decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing," Alito wrote.
The ruling overturns the 5th U.S. Circuit Court of Appeals, which sided with the Sons of Confederate Veterans.
R. James George, the Austin lawyer who argued the case before the high court for the group, agreed that the implications were troubling.
"This is a sad day for the First Amendment," George said.
The Sons first conceived of the specialty plate bearing its logo as a fundraising gambit in 2007. The idea had the support of Jerry Patterson, who who sponsored the group's design when he was state land commissioner.
A panel of Texas Department of Transportation workers initially voted to approve the design, but a supervisor decreed a new vote should take place. When legislators created a newly independent Department of Motor Vehicles, the new agency had jurisdiction over license plates.
Attorney General Ken Paxton hailed the victory.
"Today's ruling upholds Texas' specialty license plate program and confirms that citizens cannot compel the government to speak, just as the government cannot compel citizens to speak," Paxton said. "There remain many other ways for motorists to express their views on their vehicles."
Buffalo Soldiers plate
In his dissent, Alito noted that at the same meeting where the Confederate plate was considered, the board approved a plate honoring the Buffalo Soldiers, as black members of Army's 10th Cavalry Division were known.
That 5-3 endorsement came despite objections by some American Indian groups, who said the role the unit played in the brutal treatment of Indian tribes in the 19th century evoked its own kind of horror for them.
Alito cited that as proof that the board was engaging in the kind of viewpoint discrimination the Constitution has long been held to forbid.
"The board rejected the plate design because it concluded that many Texans would find the flag symbol offensive," Alito wrote. "If the board's candid explanation of its reason for rejecting the SCV plate were not alone sufficient to establish this point, the board's approval of the Buffalo Soldiers plate at the same meeting dispels any doubt. The board rejected one plate and approved the other."
Breyer did not address the Buffalo Soliders plate decision in the majority ruling.
George, the Austin lawyer, said the statute that governs the specialty plates program allows the board to reject any plate that it deems might be offensive.
"That's a standard that is really no standard at all," he said. "You can't think of anything that doesn't potentially offend someone."
Texas' specialty license plate program has been around in one form or another since the 1960s. Since 1994, the program has produced nearly $200 million in revenue, though in many cases it is split with charitable groups.
BY THE NUMBERS
$17.6 million: Revenue collected in 2014 from specialty plate registrations
$191.6 million: Estimated revenue from all plates since 1994
876,971: Number of specialty plates registered during 2014
$76 million: Revenue since 1994 from personalized plates, the most popular choice
$3.9 million: Revenue from Texas A&M specialty plates since 1994
4,979: Registered Texas A&M plates in 2014
$1.86 million: Revenue from University of Texas plates since 1994
2,731: Registered UT plates in 2014
At least nine: The number of states that allow Confederate plates: Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee and Virginia.
SOURCE: Texas Department of Motor Vehicles
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