In a case that examined the First Amendment implications of such restrictions, the nation's high court ruled Thursday that such rejections don't amount to discrimination because the government – not the motorist – is doing the speaking.
That distinction was at the heart of the court's decision in Walker v. Sons of the Confederate Veterans. In concluding that such speech belongs to the government, justices in the 5-4 majority said license plates are "essentially" government identifications that serve a government purpose. As government speech, they're not subject to stringent free-speech protections.
Writing the majority opinion, Justice Stephen Breyer said the government can promote or restrict viewpoints in its speech. "When the government speaks, it is entitled to promote a program, to espouse a policy or to take a position," he wrote. "In doing so, it represents its citizens and it carries out its duties on their behalf."
The decision reverses a lower-court ruling which found the Texas Division of Motor Vehicles had violated the First Amendment rights of the Sons of Confederate veterans when it rejected the group's application for a specialty plate that contained the Confederate flag and phrase "Sons of Confederate Veterans 1896." Nine other states already offer such Stars and Bars license plates, but Texas had rejected the application on the grounds that it could be offensive.
That's a troubling precedent, says Ben Jones, a former Democratic congressman from Georgia who is involved in the Sons of Confederate Veterans organization.
"I think it's a very dangerous trend going on," Jones told Autoblog. "The ruling is an enormous disappointment to us, and in a way, it caves to the pressures of the politically correct movement, and revisionist historians who are having their day."
Though the Texas board which rejected the application said the Confederate flag is a symbol that expresses hatred toward certain groups that find it "demeaning," Jones, perhaps better known for playing Cooter on The Dukes of Hazzard television show, argued the Stars and Bars has been unjustly tarnished by a "fringe" minority who use it for hateful purposes.
He said the Sons of Confederate Veterans are upset about being portrayed as bigots and racists and lumped in with other hate groups. "We're wondering why, 150 years after Appomattox, why our ancestors are being condemned and compared to Nazis and jihadists," he said.
In earlier court arguments, Justice Ruth Bader Ginsburg had asked whether allowing the Stars and Bars would eventually lead to also allowing swastikas on license plates. In Thursday's ruling, Breyer noted that Texas was not required to supply license plates that both carried anti-terrorism messages and ones that supported al-Qaeda.
At least in the realm of license plates, the government now can determine what's a symbol of hate or merely one of proud Southern heritage. If the government lacked the ability to make such determinations, it'd be rendered inept, Breyer argued.
He supported that argument with a hypothetical: Say a state was promoting a vaccination and immunization drive for children. Without the ability to promote its position, a government agency may also need to provide equal weight to anti-vaccine arguments. Breyer was joined in the majority by Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and – in a surprise to some court-watchers – Justice Clarence Thomas.
Three justices dissented on the fundamental question of whether the speech on license plates belongs to the government or private people. Justices Samuel Alito, Antonin Scalia and Anthony Kennedy argued the majority "passes off private speech as government speech, and in doing so, establishes a precedent that threatens private speech that government finds displeasing."
In his dissent, Alito argued that specialty messages commonly found on license plates in Texas and elsewhere are clearly speech made by private individuals. Onlookers, he said, would never assume the government promotes specific universities, favorite burger restaurants or NASCAR drivers, which are some examples of the 400-plus specialty license plates available in Texas.
"This capacious understanding of government speech takes a large and painful bite out of the First Amendment," Alito wrote. "Specialty plates may seem innocuous. They may make motorists happy, and they put money in a State's coffers. But the precedent this case sets is dangerous."