Confederate Group Wins Florida License Plate Skirmish in Federal Court
Judge calls legislative interference in issuing specialty tags unconstitutional
By: Kenric Ward March 31, 2011
Florida Confederate license plate
In a decision that could affect the issuance of future specialty license plates in Florida, a federal judge overturned the state's rejection of a Confederate tag. Judge John Antoon said the state acted unconstitutionally in rejecting a specialty plate for the Sons of Confederate Veterans. The group had paid the requisite fees and complied with all conditions applicable to the sale of the tag, but the Legislature blocked its issuance.
"By placing unfettered discretion in the hands of government officials to grant or deny access to a public forum, section 320.08053, Florida Statutes, creates a threat of censorship that by its very existence chills free speech," wrote Antoon, a judge in the Middle District of Florida. "This threat of censorship is heightened when the speech at issue is controversial, as it is in this case. Indeed, the fact that the speech is controversial strikes at the very heart of First Amendment protections," the judge stated.
"Accordingly, because section 320.08053 (2009) implicates private speech rights and provides the Legislature with unfettered discretion to engage in viewpoint discrimination when declining to approve a specialty license plate application, it is unconstitutional under the overbreadth doctrine." Orlando attorney Fred O'Neal, who represented the SCV, said in an e-mail: "We had hoped the judge would have ordered the DMV to issue our plate directly (i.e., without legislative approval) or, in the alternative, to shut the door for everyone else by declaring the statute creating the approval process unconstitutional (i.e., if we can't get our plate issued, then no one should be able to get a plate issued). The judge went with the latter."
John Adams, head of the Florida SCV, said Confederate license plates have been issued in nearly a dozen other states, including two versions in Virginia. A survey by the SCV indicated that as many as 30,000 Floridians would purchase the plate. Adams criticized the Florida Legislature for "arbitrary and capricious" action in rejecting the SCV tag, which had received administrative approval from the Department of Motor Vehicles. A state report signaled trouble back in 2004 when it was suggested that legislative involvement could politicize the process -- a problem identified in Judge Antoon's decision.
"I'm working the phones to get this [plate] amended onto another license plate bill. Ultimately, the rest of this statute has to get cleaned up," Adams said.