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Does your license plate speak for you or your state?

Mar 24, 2015

USA Today

Does your license plate speak for you or your state?

Richard Wolf, USA TODAY 9:17 a.m. EDT March 23, 2015

WASHINGTON -- Drive across the vast expanse of Texas and you're liable to see license plates celebrating everything from Dr. Pepper and Mighty Fine Burgers to Horned Lizards and Wild Turkeys.

Nothing is more popular in one of the nation's most conservative states, however, than the U.S. military and its veterans. No fewer than 92 of its 385 specialty plates honor their service.

But when it came to adding a 93rd such license plate -- one commemorating Confederate soldiers -- Texas balked. Its refusal, following objections raised by residents who equate the Confederate flag with slavery and oppression, will be taken up Monday by the Supreme Court.

The case combines one of the most basic legal concepts -- freedom of speech -- with conundrums such as: Who is speaking, the government or the driver? Can subject matter be limited, or specific viewpoints? Must states give equal time to both sides of an issue -- say, both "Save the Sea Turtles" and "Kill the Sea Turtles?"

Moreover, if license plates have limits, how about memorial bricks and tiles on municipal or school property? Advertisements on city buses? Government web sites?

This is how a simple case about license plates becomes a crucial test of the First Amendment, pitting freedom of speech against government authority.

"You may disagree with our opinion, but we are honoring those people who in their time sacrificed all," says Ben Jones, a former Democratic congressman and chief of heritage operations for the Sons of Confederate Veterans, which boasts about 30,000 members. "We're not ashamed of our ancestors."

"Government speech is on the line," says Lisa Soronen, executive director of the State Local Legal Center, which advocates for state and local governments at the Supreme Court. "This is crucial stuff for us."

Every state in the nation offers specialty license plates. Maryland alone offers nearly 800, including one for the Sons of Confederate Veterans. It's somewhat surprising, therefore, that the issue of license plate censorship is just arriving at the Supreme Court.

The plates cost extra to purchase, with the proceeds usually split between the states and the sponsoring organizations. Sons of Confederate Veterans plates first became available in Mississippi in 2003, with the money helping to restore Civil War-era flags. Today they are offered in eight other states: Alabama, Georgia, Maryland, Louisiana, North Carolina, South Carolina, Tennessee and Virginia.

The contested Texas plate -- the first one ever turned down by the Department of Motor Vehicles Board -- features a Confederate battle flag framed by the words "Sons of Confederate Veterans 1896." A faint Confederate flag also appears in the background. Proceeds from sales would go toward preservation and education efforts, including the group's youth camp, where teenagers can learn how to fire muskets and cannon.


As the American Civil Liberties Union acknowledges, "the Confederate battle flag was the banner for those who supported slavery and sought to break our nation apart. It later served as a rallying sign for those seeking to maintain racial separation in all facets of life, from the voting booth to the wedding chapel."

Yet the ACLU defends the group in a friend-of-the-court brief. So does the conservative Becket Fund for Religious Liberty and the libertarian Cato Institute, which notes that Texas recognizes April as Confederate History Month and Jan. 19 as Confederate Heroes Day.

"Everything offends someone," says the Cato brief, which received an assist from satirist P.J. O'Rourke. "Freedom produces barbs, points, and rough edges, and any attempt to sand those down will not only result in less freedom, it will create a less interesting, dynamic, and robust society."

Marshall Davis, public information officer for the Texas Division, Sons of Confederate Veterans, denies any racist intentions.

"When I put this plate on my car, it will be to honor my soldier-ancestors," Davis says. ""We deplore racist groups. We deplore the fact that our flag was misused, that the Klan waved that flag."

The most controversial license plate on the market -- and the one involved in the most court cases -- bears the simple message "Choose Life." It's available in 29 states, but in North Carolina, two federal courts have ruled the state cannot offer it without also allowing plates preferred by abortion-rights advocates. That case is pending at the Supreme Court.

In Indiana, a license plate designed by the Indiana Youth Group to support lesbian, gay, bisexual and transgender youths proved so controversial that the Legislature created an oversight committee to review specialty plates.

Texas, backed by 11 other states, contends the messages on license plates should be considered government rather than private speech, and therefore not subject to First Amendment challenges. The states reason that drivers can use bumper stickers, window decals or paint jobs to display private messages.

The state also argues that it is not discriminating against a point of view, since it has not approved a license plate with the opposite message -- in this case, disparaging Confederate veterans. And it notes that states often approve one message without its alternative -- "fight terrorism," for instance, or in the District of Columbia, "taxation without representation."

Proponents of free speech say the driver, not the state, does the speaking by displaying the license plates. If governments are allowed to limit such speech, they say, it will lead to increased censorship on college campuses and against religious minorities.

Their side is supported by four federal appeals courts, while just one has ruled that license plates are a form of government, rather than private, speech.

While the Supreme Court has been a vigorous defender of free speech rights -- going so far as to sanction military funeral protests and so-called animal "crush" videos -- it also has ruled that governments can set guidelines for their own property or advertisements.

For that reason, it's not impossible that the court will rule against the Confederate flag.

"It's an easy target. Hollywood's always portrayed the South as mean-spirited and backwards," bemoans Jones, a Virginian who played Cooter on the popular 1970s TV show Dukes of Hazzard and later served two terms in Congress from Georgia.

But as for the license plates, Jones says Texas should let bygones be bygones. After all, he says, "we can't do anything about the fact that Grandpa fought for the South."


Justices frown on state censorship of license plates

Richard Wolf, USA TODAY 5:09 p.m. EDT March 23, 2015

WASHINGTON — State programs that allow special interest groups to design license plates could be jeopardized based on Supreme Court justices' complaints Monday about Texas' denial of a plate commemorating Confederate veterans.

A majority of justices appeared to reject the state's contention that hundreds of license plates endorsing everything from blood donors to Mighty Fine Burgers represent government speech and can therefore be censored at the government's discretion.

But if the Confederate flag must be allowed, they reasoned, perhaps swastikas and racial epithets do as well. That realization appeared to lead some justices to conclude that specialty-plate programs used by most states to raise money may be the problem.

"They're only doing this to get the money," Chief Justice John Roberts said of Texas' specialty-plate program, which charges groups that seek the plates. The solution to blocking potentially offensive messages without infringing on free speech rights, he said, might be that "they don't have to get in the business of selling space on their license plates to begin with."


Does your license plate speak for you or your state?

The case was filed by the Sons of Confederate Veterans, which has specialty plates in nine other states but was blocked by Texas motor vehicles officials after some residents protested that the Confederate flag symbolizes slavery and division. It is similar to lawsuits in other states, many of which focus on state programs that allow the anti-abortion "Choose Life" license plates.

All 50 states have specialty-plate programs. At least half of them offer more than 100 such plates; Texas offers more than 400. While some are chosen by the state Legislature or the Department of Motor Vehicles Board, others are proposed by groups of citizens or organizations. Only rarely are they rejected.

The central argument is over who is talking — the government or the motorist. Texas Solicitor General Scott Keller said the government is talking because it "etches its name onto each license plate." For that reason, he said, it can pick and choose which plates to approve.

A majority of justices appeared to reject that argument, given how many license plates the state has approved. Justice Elena Kagan said the state effectively relinquished control of the program to paying customers, making it a "people's license plate." Justice Stephen Breyer said because state officials claim they can reject any plate for any reason, "Then I think they lose."

Noting states pad their budgets with income from the specialty-plate programs, Justice Samuel Alito said, "That is really all this is about, isn't it?"

As soon as Sons of Confederate Veterans lawyer R. James George stood up, however, things began to go south for his side.

If Texas must approve the organization's license plate featuring a Confederate flag, Justice Ruth Bader Ginsburg said, how about a swastika? George said the state would have to approve that, too.

"Suppose somebody else says, 'I want to have jihad on my license plate?'" Ginsburg asked, a reference to the flip side of state plates urging "Fight Terrorism."

Apparently mishearing her, George responded, "Vegan?"

"Jihad," Ginsburg repeated.

That, too, would be OK, the lawyer said.

"How about 'Make pot legal?'" Ginsburg asked. Same response.

"And 'Bong hits for Jesus?'" she asked, a reference to a 2007 Supreme Court case in which the justices ruled that schools could suppress speech promoting drug use. That too, George replied.

"You're really arguing for the abolition of Texas specialty plates," Justice Antonin Scalia, who had been Texas' only vocal supporter, said.

"They either need to get rid of the program or they need to open up the program just to everybody else," George said.

Another possibility, voiced by some justices, might be to allow states to offer a menu of state-approved license plates but not accept proposals from the public. If the court rules that Texas must allow the Confederate plate — and, by extension, nearly all others -- that could be states' best option.