Group asks court to revive Confederate battle flag specialty license plate (TX)

Freedom of expression or expression of racism? That’s the question as lawyers representing the Texas Division of the Sons of Confederate Veterans were before a federal appeals court in New Orleans Wednesday urging the court to revive a lawsuit over state of Texas officials’ rejection of a customized Texas license plate featuring the Confederate battle flag.

Following arguments, the 5th U.S. Circuit Court of Appeals offered no indication of a ruling time frame.

The specialty plate application was denied by the state Department of Motor Vehicles Board in 2011.

SCV maintains the design is a tribute to the memory of Confederate soldiers and a symbol of Southern heritage while the DMV board countered residents viewing the flag as a racial symbol would be offended.

The Associated Press reported on the arguments presented:

John McConnell, a lawyer for the nonprofit group, said the board engaged in “viewpoint discrimination” that trampled on his client’s First Amendment right to freedom of expression.

“Obviously, there is a debate over what the meaning of the Confederate battle flag is,” McConnell said. “The state cannot enter the debate and silence one point of view and endorse the views of others.”

U.S. District Judge Sam Sparks dismissed the group’s lawsuit in April, ruling the First Amendment doesn’t require the state to place the flag on government-controlled property.

Texas Solicitor General Jonathan Mitchell denied that the board discriminated against the group. Mitchell said the “government-speech doctrine” allows the state to pick and choose which messages and symbols appear on the state-issued plates.

If the board was required to maintain “viewpoint neutrality,” its members would have to issue specialty plates to anyone who applied for one or else scrap the program altogether, Mitchell argued.

“There’s no way to issue a specialty plate without favoring one viewpoint over another,” he said.

Per the AP, 5th Circuit Judge Jerry Smith asked McConnell why the design of customized plates wouldn’t be protected government speech. McConnell said Texas has authorized roughly 300 specialty plates for a wide variety of groups, including some with overtly religious symbols. When drivers spend extra money to get customized plates, it’s a form of personal expression, he argued.

“In this case, there is a real message that is expressed by the Confederate flag,” McConnell said.

The board reportedly received “hundreds of comments opposed to the group’s design and heard objections from elected officials, clergy members, NAACP members and other critics during a November 2011 board meeting.”

When asked if board decisions were based on opinions expressed during the public comment portion of its meetings, Mitchell responded that “it’s dependent on the board’s judgment.”

“There’s a real problem with defining what level of offensiveness would matter here,” McConnell argued further noting, “Speech can’t be restricted simply because it might offend somebody.”

According to SCV lawyers, the group has Confederate flag specialty license plates available in Georgia, North Carolina, Alabama, Maryland, Mississippi, Louisiana, South Carolina, Tennessee and Virginia.

“Some of them were done under court orders and some of them were done under the specter of threatened litigation,” Mitchell said.

Lou Ann Anderson is an information activist and the editor of Watchdog Wire – Texas. As a Policy Analyst with Americans for Prosperity – Texas, she writes and speaks on a variety of public policy topics. Lou Ann is the Creator and Online Producer at Estate of Denial®, a website that addresses probate abuse via wills, trusts, guardianships and powers of attorney as well as other taxpayer advocacy issues.

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