The U.S. Supreme Court will consider whether Texas officials must issue a license plate depicting the Confederate battle flag, accepting a free-speech dispute with implications for dozens of states with similar specialty-tag programs.
The court today agreed to review a ruling that Texas violated the Constitution when officials rejected an application by the state chapter of the Sons of Confederate Veterans while issuing more than 350 other specialty plates. Those include tags that say “Stop Child Abuse,” “Operation Iraqi Freedom” and “God Bless Texas.”
The case will determine how much power states have to control the topics and designs of their specialty plates. A federal appeals court said officials can’t favor one viewpoint over another in choosing which proposals to approve.
That ruling will have “untenable consequences,” Texas officials led by Attorney General and Governor-elect Greg Abbott argued in their appeal. “After this ruling, it is not apparent how the state could exclude profanity, sacrilege or overt racism from its specialty license plates.”
The case will test a court that in other contexts is broadly supportive of speech rights. Most federal appeals to consider the issue have said states can’t discriminate on the basis of the message a group seeks to convey on a license plate.
Texas has a board that approves every license plate design before it is issued to the public. Drivers who want a special plate pay an extra fee, with the money going in part to state agencies and in part to charitable and nonprofit groups.
The disputed plate design consisted of a battle flag surrounded by the words “Sons of Confederate Veterans 1896.” The Texas board said many members of the public found the design offensive.
The New Orleans-based 5th U.S. Circuit Court of Appeals ruled against the state in a 2-1 decision.
“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 majority said.
A central question will be how the court classifies license plates. Texas contends they qualify as government speech, immune from any requirement that they be viewpoint neutral.
The Texas chapter of the Sons of Confederate Veterans urged the Supreme Court not to hear the case. The flag “is a symbol that should be a topic for open debate, without the government censoring one side or the other,” the group argued.
The same issue has arisen in the context of the abortion debate. In February, a three-judge panel said Virginia was violating the Constitution by distributing plates that say “Choose Life” while refusing to issue ones that bear an abortion-rights slogan. The state is one of 29 that issue “Choose Life” plates.
The American Civil Liberties Union has asked the Supreme Court to review that decision. The justices today took no action on that appeal and probably will defer acting until they resolve the Texas case.
The court will hear arguments early next year and rule by June in the case, Walker v. Texas Division, Sons of Confederate Veterans, 14-144.