Ruling that the government cannot 'selectively shield the public from some kinds of speech on the grounds that they are more offensive than others,’ a divided Federal Appeals Court has ruled that the state of Texas must offer a Confederate flag themed license plate as requested by the Sons of Confederate Veterans, Newsradio 1200 WOAI reports.
The ruling by a three judge panel of the Fifth U.S. Circuit Court of Appeals, continues a three year long battle over the plates, which were rejected by the Texas Department of Motor Vehicles in 2011 following three years of emotional public testimony.
The majority opinion, by Appellate Justice Edward Prado, ruled that the Texas DMV's ruling amounted to 'viewpoint discrimination.'
"By rejecting the plate as offensive, the Board discriminated against Texas SCV view that the Confederate flag is a symbol of sacrifice, independence, and Southern heritage," Prado wrote. "It was rejected because public comments have shown that many members of the general public find the design offensive."
Prado said since the Texas DMV has routinely approved specialty license plates for a wide variety of veterans groups, including Korea Veterans, Vietnam Veterans, Woman Veterans, Buffalo Soldiers, Operation Iraqi Freedom, and World War Two Veterans, it is clearly discriminatory not to issue a plate honoring this group of veterans.
"Given Texas' history of approving veterans plates and the reasons the Board offered for rejecting Texas SCV plate, it appears that the only reason the Board rejected the plate is the viewpoint it represents."
The plate features the familiar Confederate Battle Flag, which has been frequently used as a symbol by White Supremacist and racist groups in the South. Many civil rights groups told the Texas DMV during the hearings that the symbol is offensive.
"The Board finds that a significant portion of the public associates the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups," the DMV board said in making its unanimous vote against approving the plate.
In Texas, individual organizations can petition the DMV or the Legislature to approve special license plates which sell for a premium over traditional plates. A portion of that money goes to the organization. License plates are commonly seen around Texas supporting various colleges and universities, conservation groups, hunters, and other organizations.
The court also ruled, in a decision which could have wide ranging impact, that a message on a license plate is 'individual speech.' Many of the groups opposing the Confederate plate argued that, since the government approves a plate, the government is endorsing the message. That argument has been used, for example, by groups seeking to stop religious monuments from being erected in public parks.
"While public parks have traditionally been closely identified in the public mind with the government, and have played an important role in defining the identity of the city, the same cannot be said for license plates and the backs of cars," the court ruled, citing a ruling allowing New Hampshire drivers the right not to have a plate bearing the state's familiar motto 'Live Free or Die.'
"It is actually presumed that the license plates were private speech, and because the car is private property, the government cannot force individuals to bear a license plate with New Hampshire's motto."
But in a strongly worded dissent, Justice Jerry E. Smith said license plates are 'uniformly identified with the state governments that issue them.'
"People see them when driving and immediately will recognize and describe them as 'Texas' license plates. Even specialty plates cannot exist but for the state's cooperation and effort to manufacture and sell them."
Smith concludes that this 'associational image' should allow the state of Texas to decide which symbols it wishes to be associated with.
"The state has the right to decide whether it wishes the state to be linked to that flag whenever Texas cars are driven."