The U.S. Court of Appeals for the Fifth Circuit held this week that the Texas Department of Motor Vehicles Board violated the free speech provision of the First Amendment when it refused to approve specialty license plates bearing the Confederate battle flag.
Submitted in August 2009, the Texas Board initially voted to approve the specialty plate, but after fears circulated concerning the potentially offensive nature of the Confederate flag, a second vote was held and the plate was rejected.
The Board relied upon the Supreme Court’s decision in Pleasant Grove City, Utah et al. v. Summum (2008) in which the Court ruled that the Summum religious group cannot not force Pleasant Grove City to accept and display a monument bearing the “Seven Summum Principles” of creation. It was determined that choosing which monuments the city wants displayed falls under the city’s right to government free speech, and that the city has a right to refuse donations for other projects.
In opposition, the Sons of Confederate Veterans utilized the same case, arguing that the “reasonable observer” test created by Justice David Souter categorized specialty plates as private speech. The test asks “whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech.”
Here, it was argued that the Texas Board had engaged in impermissible viewpoint discrimination. As evidence, the plaintiffs pointed to the state’s prior approval of specialty plates commemorating past wars.
“Viewpoint” discrimination can be distinguished from “content-based” discrimination, which holds that it may be permissible to restrict private speech in situations when entire categories, not particular viewpoints, are withheld from discussion.
Since Texas had not deemed all flag-bearing or war-commemorating plates impermissible, the Fifth Circuit ruled that the Board engaged in viewpoint discrimination by singling out the Sons of Confederate Veterans’ request for rejection.
