Supreme Court says states can block Confederate flag license plates

WASHINGTON — States that sell specialty license plates promoting everything from "Choose Life" to "Conserve Water" can prohibit images like the Confederate flag, the Supreme Court ruled Thursday.

In a 5-4 decision, the justices said Texas' specialty license plate program is a form of government speech. The First Amendment does not prohibit the state from rejecting some designs, they said.

"States have long used license plates in this country to convey government messages," Justice Stephen Breyer wrote for the majority, which included the court's other more liberal justices along with Clarence Thomas. Just as the state cannot force drivers to espouse a particular message, he said, drivers cannot force a state to espouse theirs.

The decision frees all 50 states to police their specialty license plate programs as they see fit. Had the court ruled against Texas, it could have forced states to change or curtail their programs, lest they be forced to permit virtually any messages from appearing on state-issued license plates.

The immediate impact is a setback for the Sons of Confederate Veterans, which had challenged Texas' denial of its license plate. The group argued it was merely honoring those who fought for the South. Some state residents said the image of a Confederate flag symbolized racism and division.

"The idea of inclusion, diversity, and tolerance apparently does not apply under law to those of us whose heritage is unpopular in some quarters," said Charles Kelly Barrow, the organization's commander in chief. "This is a sad day for the First Amendment and for mutual respect and bridge-building among Americans of different viewpoints."

Four justices, led by Samuel Alito, would have allowed the Confederate license plate and blocked states from refusing messages they find objectionable.

"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," their dissent said.

"Specialty plates may seem innocuous," Alito added. "They make motorists happy, and they put money in a state's coffers. But the precedent this case sets is dangerous."

To illustrate his point, Alito imagined sitting along a Texas highway and seeing more than 350 specialty plates whiz by -- plates honoring colleges and universities, fraternities and sororities, even "a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver."

"Would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?" he said.

But Breyer's majority opinion noted that without limits, states would be forced to permit conflicting messages.He said drivers can use bumper stickers to convey a personal message, but "placing it on the license plate would suggest, at least to some observers, that it is the state that is conveying the message."

"Texas offers plates that pay tribute to the Texas citrus industry. But it need not issue plates praising Florida's oranges as far better," Breyer said. "And Texas offers plates that say 'Fight Terrorism.' But it need not issue plates promoting al-Qaeda."

The case, Walker v. Texas Division, Sons of Confederate Veterans, became a major test of the First Amendment, pitting freedom of speech against government authority. The court was faced with several tough questions: Who is speaking, the government or the driver? Can entire subjects be limited, or specific viewpoints? And must states give equal time to both sides of an issue?

Four federal appeals courts had ruled in favor of free speech, while only one had said license plate messages were a form of government speech not subject to the First Amendment.

Sons of Confederate Veterans specialty 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 have gone toward preservation and education efforts, including the group's youth camp, where teenagers can learn how to fire muskets and cannon.

The court's 5-4 lineup was unusual, with Thomas -- perhaps its most conservative justice -- aligning with the four justices named by Democratic presidents.

"One has to wonder whether Justice Thomas's vote was not at least in some measure affected by the particular license plate at issue -- displaying the Confederate flag," said Georgetown University School of Law professor David Cole.

Ben Jones, national spokesman for the Sons of Confederate Veterans a former congressman from Georgia who played Cooter on the popular TV show "The Dukes of Hazzard," called the decision "way wrong."

"Why are my ancestors being lumped in with Nazis and jihadists?" Jones said.

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 two federal courts have ruled that North Carolina cannot offer it without also allowing plates preferred by abortion-rights advocates.

That case, also pending at the Supreme Court, likely will get sent back now with instructions for the appeals court to follow the new precedent -- presumably by allowing the state to offer the "Choose Life" plate only.

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

Proponents of free speech argued that the driver, not the state, does the speaking by displaying the license plates. If governments are allowed to limit such speech, they said, it would lead to increased censorship, such as on college campuses or against religious minorities.

That's a threat Alito pressed in his dissent.

"If the state can do this with its little mobile billboards, could it do the same with big, stationary billboards?" he wrote. "What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve?"\

Proponents of free speech bemoaned the court's ruling. "For states like Texas, specialty license plates have always been about the money, not the message," said Steven Shapiro, legal director at the American Civil Liberties Union. "By allowing states to censor private speech they deem offensive, today's decision is a step backwards for the First Amendment."

The Supreme Court has not shied away from permitting controversial speech in the past. It has gone so far as to sanction homophobic protests adjacent to military funerals and videos depicting animals being crushed. In both those cases, only Alito dissented.