Vanity License Plates Stir Up Free Speech Issues

By: Autumn Gear

Driving is a great and widespread privilege in American society. Most American children eagerly look forward to their sixteenth birthday, upon which they may finally enjoy the freedom of unsupervised operation of a motor vehicle. One subject that many Americans may not often consider a serious topic in relation to cars is the license plate. However, the specialty, or vanity, license plate is sparking controversy across the country.

A recent vanity-license-plate case, Walker v. Texas Division, Sons of Confederate Veterans, Inc., involves the Texas Department of Motor Vehicles Board (TDMVB) and the Texas Division of the Sons of Confederate Veterans (SCV). The case arose after the SCV legally submitted its specialty license plate design to the TDMVB for final approval. The SCV is a nonprofit organization, and its mission is to honor and preserve the memory of the soldiers who fought for the Confederacy during the Civil War. Unsurprisingly, the vanity plate design the SCV submitted included an image of the Confederate battle flag. Due to the fact that some individuals find the image of the Confederate battle flag to be offensive, the TDMVB rejected the SCV’s vanity license plate design. In response, the SCV, which had successfully obtained vanity license plates depicting similar imagery in “Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia,” brought suit.

The Federal District Court for the Western District of Texas ruled in the government’s favor, holding that the First Amendment of the Constitution does not require Texas to support the Confederate battle flag by printing it on state-issued license plates. In reaching a decision, the district court considered the conflicting views the public holds about the Confederate battle flag. The court noted that some individuals consider “the flag [to be] a symbol of pride, heritage, and sacrifice,” while other individuals view the flag as “a symbol of an unconstitutional rebellion, aimed at keeping African-Americans in a state of slavery.”

On appeal, the Fifth Circuit Court of Appeals reversed. Among other topics, the Fifth Circuit considered two notable cases prior to reaching its determination that state-issued license plates are private, rather than government, speech: Johanns v. Livestock Marketing Ass’n and Pleasant Grove City, Utah v. Summum. The appeals court distinguished Texas’s case from Johanns, which held that government control of a message from start to finish is a form of government speech, on the basis that the TDMVB only controls the final approval of vanity license plates. Further, the appeals court distinguished Texas’s case from Summum, which held that permanent monuments in public parks are government speech, on the grounds that a reasonable observer would consider specialty license plates to be a form of private speech.

The decision of the Fifth Circuit is “consistent with the majority of other circuits that have considered the issue” of whether state-issued license plates constitute government or private speech. (The “sole outlier,” the Sixth Circuit, held that all vanity license plates are government speech.) However, the Supreme Court has granted certiorari, and the Court will hear the case in the spring.

The issue before the Supreme Court boils down to whether messages printed on state-issued license plates are government or private speech. If the Supreme Court holds that the license plates are private speech, then the SCV will be able to use license plates depicting the Confederate battle flag, despite whether the image offends other individuals. Conversely, if the Court holds that the license plates are government speech, then Texas will be permitted to interfere with the way in which SCV wishes to express its beliefs. Further, the Supreme Court’s decision will resolve the split between the circuits on similar issues.

Interestingly, the current social environment in the United States may complicate the issue of whether a Texas license plate may depict the Confederate battle flag. In light of recent events, such as those occurring in Ferguson, Missouri, the Court must consider the fact that controversies between citizens of different skin color still occur in this country. If the Court concludes that it must protect First Amendment freedoms and determine that messages printed on state-issued license plates are private speech, the depiction of the Confederate battle flag on more license plates may increase tensions between the citizens. Nevertheless, the state government should not be given complete control over the messages its citizens choose to adopt and portray on their license plates. Regardless of the Supreme Court’s ruling, come spring, the vanity license plate will make history in further defining the boundaries of government speech.