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Texas Confederate Flag License Plate Denial Before 5th Cir.

By Brett Snider, Esq. on November 12, 2013 | Last updated on March 21, 2019

Proponents of a Confederate flag license plate for Texas drivers brought their case before the Fifth Circuit last week, hoping to renew their fight against the DMV which denied the controversial plate.

According to The Associated Press, the Sons of Confederate Veterans renewed the fight in a case they had brought against the Texas Department of Motor Vehicles (DMV) in 2011 for rejecting their proposal to place a Confederate flag symbol on a "specialty plate."

Is this really a case of rights being trampled?

District Court Denies 1st Amendment Argument

The case has its genesis in a 2011 unanimous rejection by the Texas DMV Board of the Sons of Confederate Veterans' ("Sons") plan to emblazon a Confederate flag on a new Texas license plate. Then-presidential hopeful Gov. Rick Perry -- fresh off of defending himself over "N-word" Ranch -- decided to oppose this plan as well, effectively ending the Sons' dreams of highway viewing of the stars and bars.

That is, until they filed suit in Texas federal court in December 2011, claiming that denying the proposal was a First Amendment violation. Fast forward to April 2013 when a federal district court judge ruled for the DMV, finding the license plates to be properly regulated as a non-public forum.

The court leaned heavily on a 1995 case in which the Fifth Circuit ruled highway adoption by the KKK could be regulated as a non-public forum. Similar to this case, the state DMV was well within its rights to regulate a non-public forum's content.

Regulating offensive content -- like symbols which evoke hateful racist images and many find patently offensive -- is just peachy in non-public forums, as long as it isn't simply viewpoint discrimination.

5th Circuit Hears Sons' Viewpoint Argument

Which brings us now to November 2013, as Sons argued before the Fifth Circuit on Wednesday that the state was essentially "silenc[ing] one point of view and endors[ing] the views of others" regarding the meaning of the Confederate flag, reports the AP.

The DMV Board argued that simply denying a plate based on Texas law -- which authorizes the Board to deny any plate "if the design might be offensive to any member of the public" -- does not constitute taking a stand on the semantics of the Confederate flag. It does acknowledge that there are at least some members of the public who would have found Sons' proposed plate offensive.

If the State doesn't win the viewpoint discrimination argument, it may prevail on the somewhat new "government speech" doctrine from the Supreme Court's Pleasant Grove decision. Under this theory, which was rejected by the lower court, Texas plates are not subject to free speech balancing because they constitute government speech -- like choosing permanent monuments in public space.

Bottom Line

According to the AP, Sons currently has specialty plates with the same design in at least nine states, but Texas might not be the 10th.

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