Preview of Walker v. Sons of Confederate Veterans: Confederate Flag License Plates

How do you feel when you see a Confederate Flag? Proud? Angry? Terrified? Whatever your reaction, you would probably concede that under the First Amendment individuals have the right to display this symbol, for example on a bumper sticker on their cars. But would it make a difference if the flag were on a license plate?

For some people, the Confederate battle flag is simply a symbol of their past, expressing pride in their ancestors and their heritage. For others, it is a symbol of White Supremacy expressing support for the institution of slavery and the practices of racial segregation and discrimination -- the moral equivalent of a Nazi swastika.

The Facts

The Sons of Confederate Veterans requested the Texas Department of Motor Vehicles Board to approve a specialty license plate featuring the Confederate battle flag. The Board unanimously denied the request. The federal District Court ruled in favor of the Board, but a majority of a panel of the Fifth District Court of Appeals reversed and ruled in favor of the Sons of Confederate Veterans. The case is now on appeal to the United States Supreme Court.

Under Texas law, the Texas Deparatment of Motor Vehicles Board may issue a new specialty license plate either on its own or in response to an application from a nonprofit corporation. When a nonprofit organization proposes a plate, the Board must approve the plate's design. Texas law specifically provides that the Board:

may refuse to create a new specialty plate if the design might be offensive to any member of the public.

The Motor Vehicles Board turned down the request, finding:

The Board ... finds it necessary to deny [Texas Sons of Confederate Veteran's] plate design application, specifically the confederate flag portion of the design, because public comments have shown that many members of the general public find the design offensive, and because such comments are reasonable. The Board finds that a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.

The Issues and the Decision of the Lower Court

There are two issues in this case. First, is the content of a specialty license plate "government speech" or "private speech."? Second, if the content of a specialty license plate is private speech, is the law that gives the Motor Vehicle Board the power to disapprove specific designs "content based" or "viewpoint based"?

The panel of the Fifth Circuit Court of Appeals ruled in favor of the Sons of Confederate Veterans on both counts. The court found that specialty license plates are private speech, not government speech, and the court ruled that the Board's decision against the Confederate Flag plate was viewpoint based, not content based. As such the Board's decision was unconstitutional. The Court stated:

We understand that some members of the public find the Confederate flag offensive. But that fact does not justify the Board's decision; this is exactly what the First Amendment was designed to protect against.

The Law -- Content Neutral, Content Based, and Viewpoint Based Laws

Here's the legal background necessary to understand this case. All laws and official actions restricting freedom of speech can be divided into three categories. Laws and other governmental actions that affect speech are either "content neutral," "content based," or "viewpoint based."

Laws that are content neutral are laws that regulate expression not because of the ideas being expressed but because the time, place, or mode of communication causes some objective harm. The constitutionality of content neutral laws is evaluated under a weak form of intermediate scrutiny, and these laws are usually upheld as constitutional. Noise ordinances, for example, are content neutral laws. No-one wants a sound truck blaring advertisements or political messages or religious views or anything else at 2:00 a.m. in a residential neighborhood.

This law and the Board's decision aren't content neutral, though. The harm that results from offensive or hateful license plates has everything to do with the ideas being expressed. Accordingly the Board's decision is either "content based" or "viewpoint based." What's the difference between those two categories?

Both content based and viewpoint based laws are adopted to prevent harm that results from the expression of certain ideas, but there is a crucial difference between the kinds of harm each type of law addresses. Content based laws are adopted to prevent objective harms such as violence, fraud, crime, or intimidation. Examples of content based laws are laws against incitement to riot, breach of the peace, intimidation, perjury, fraud, false advertising, defamation, or child pornography. In general new content based laws are evaluated under the standard of "strict scrutiny." Content based laws are constitutional if they are necessary to serve a compelling governmental interest.

Viewpoint based laws, on the other hand, are adopted simply because the government disagrees with the ideas being expressed. The government is not seeking to prevent other harms that may flow from the expression; the government simply disapproves of what the individual or group is saying, and so passes a law prohibiting them from expressing that idea. Laws that prohibit the burning of the American flag, or example, are viewpoint based. The standard for determining the constitutionality of viewpoint based laws is very simple. Viewpoint based laws are unconstitutional.

The reason that viewpoint based laws are unconstitutional per se is very simple. With viewpoint based laws the government's purpose is unconstitutional. Under the First Amendment the government may not censor speech unless it has some valid reason to do so, and mere disagreement with what we have to say is not a valid reason.

The Resolution

The problem in this case is that both the statute giving the Board the power to approve license plate designs and the Board's decision itself use the word "offensive." This seems awfully close to "disapproval" or "disagreement" -- and as a result this law and the Board's decision are likely to be considered to be viewpoint based.

But there remains another wrinkle to this case. Are specialty license plates "government speech" or "private speech"? The absolute prohibition on viewpoint based laws applies only to laws that restrict private speech. The government itself has the power to reject or embrace a wide variety of viewpoints. The government has a voice and may express the ideas it believes in.

Accordingly, if this law and the Board's decision constitute an attempt to censor the Sons of Confederate Veterans, then it is unconstitutional. The SCV has a constitutional right to express itself whatever its message may be -- pride or hate.

But if license plate designs represent the views of the government itself -- if the Sons of Confederate Veterans is attempting to persuade the government to agree with its viewpoint -- then the law and the Board's decision declining to express that viewpoint are constitutional. The State of Texas is certainly free under the First Amendment to decline to display a symbol that so many people fear.

So what do you think? Is there a difference between a Confederate flag bumper sticker and a Confederate flag specialty license plate? Does a specialty license plate imply the imprimatur of the government, or is it simply private speech?

The Supreme Court will hear oral argument in this case on Monday, March 23.

Wilson Huhn has authored some very long law review articles about content neutral, content based, and viewpoint based laws!