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Confederate Flag License Plates: Whose Speech Is It Anyway?

By William Peacock, Esq. on July 25, 2014 | Last updated on March 21, 2019

In case you missed it, the Fifth Circuit recently ruled that Texas has to honor the Sons of Confederate Veterans' request to issue Confederate Flag license plates. The majority's ruling was that the denial of the plate was a viewpoint-based restriction on free speech, and that Texas impermissibly dismissed the SCV's argument that the flag "is a symbol of sacrifice, independence, and Southern heritage," while crediting the view that "the Confederate flag is an inflammatory symbol of hate and oppression."

Hate. Pride. Rebel. Heritage. Whatever.

The real issue in this case, one that we've seen repeatedly, and which is pending in a Supreme Court petition for certiorari, is whether a license plate is government speech (restrict away!) or private speech (raise yer flags!).

Meanwhile, In Other Circuits...

Just last week, we were chatting about North Carolina's cert. petition. They're fighting to be allowed to issue pro-life license plates while denying a request for a pro-choice alternative. The Fourth Circuit ruled against them, and against South Carolina in an earlier case.

And Confederate Flags? Been there, done that. The Sons of Confederate Veterans won in the Fourth Circuit as well, for similar reasons.

The Seventh Circuit, meanwhile, just told everyone to shut up and stop talking about abortion. (It's not viewpoint discrimination if you silence everyone. The Fourth Circuit figured that one out too, in another Confederate flag case. My gosh, this law review article is writing itself.)

Whose Speech Is It Anyway?

The key question here: Who's "speaking" on a license plate? It's the state's license plate, but the vehicle owner is given some choice about what goes on it. States argue that the plates are purely state speech, while the circuit courts have mostly disagreed.

The Fourth Circuit hinted in the Confederate Sons case that mixed government-private speech was possible, then adopted that theory in the South Carolina case. But as they reaffirmed in the North Carolina case, mixed or private -- there's no viewpoint discrimination allowed.

The Fifth Circuit's majority decision held that the plate is the speech of the person who displays it on his car, citing the Fourth Circuit's decision, as well as the Supreme Court's Wooley v. Maynard decision from 1977. In the latter case, the Court presumed that the plates were private speech and held that citizens couldn't be forced to display New Hampshire's slogan, "Live Free or Die."

The dissent, meanwhile, argued for mixed speech, and to uphold the state's decision. A more recent decision from 2009, Pleasant Grove City v. Summum, involved private donors who paid for monuments that were displayed in city parks, with most (if not all) of the monuments displaying the donors' messages and inscriptions. That's private speech, but the Supreme Court held that the government could pick and choose which messages it wished to display -- mixed speech, in other words.

Last week, we called North Carolina's cert. petition a long shot, even with the nationwide license plate trend clogging the lower courts' dockets. But after this decision? Assuming Texas appeals, those odds just increased dramatically.

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