By Ben Kamisar
The Supreme Court ruled Thursday that Texas can ban a special license plate with the Confederate flag, in a decision that saw conservative Justice Clarence Thomas surprisingly side with his liberal colleagues.
The case stems from the decision by the Texas Department of Motor Vehicles Board not to approve a license plate design by the Texas Sons of Confederate Veterans. The board has allowed a number of other specialty plates for other groups and was challenged in court.
The opinion, authored by Justice Stephen Breyer, upheld the state board's decision, arguing that issuing specialty or vanity license plates is a form of government speech, not individual speech by the person requesting the plate.
“How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?” he asks.
Breyer adds that, while the government can’t force a private person to echo the government’s positions, it is free to take an official position that “represents its citizens and carries out its duties on their behalf.”
Allowing the Confederate flag onto license plates, he argues, could give the appearance that Texas “has endorsed that message” behind the flag.
The court’s liberal-leaning members, Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, joined their liberal colleague's opinion.
But Thomas, one of the court’s more conservative justices, provided the swing vote for the majority in a surprising twist.
The state board initially rejected the Confederate place, claiming that “many members of the general public find the design offensive,” calling it a "reasonable" interpretation. The Texas Sons of Confederate Veterans said the rejection infringed on its members’ free speech and sued.
In his dissent, Justice Samuel Alito warns the ruling “establishes a precedent that threatens private speech that the government finds displeasing.”
He notes that Texas has more than 350 specialty plates honoring a slew of groups including high schools, universities, fraternities and sororities, the Knights of Columbus, a burger restaurant, Dr. Pepper, and NASCAR drivers.
“Would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” he asks, noting one of the other plate choices sanctioned by the board.
“If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games—Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?”
Alito adds that while the idea of specialty plates “may seem innocuous,” the decision “takes a large and painful bite out of the First Amendment” and should be seen as viewpoint discrimination.
This story was updated at 11:31 a.m.