On April 12, U.S. District Judge Sam Sparks of Austin rejected the Texas division of the Sons of Confederate Veterans’ efforts to get the Texas Department of Motor Vehicles board of directors’ approval to issue license plates bearing the Confederate battle flag. The Sons and the nonprofit group’s leaders alleged that Texas DMV board members violated their First Amendment rights by denying approval of the proposed plates and wanted the judge to order the agency to approve the proposed plates.
In his ruling, Sparks surmises that the Texas DMV board members rejected the Sons’ plates because of the Confederate battle flag, which he says “is a symbol which conveys different meanings to different audiences.” But Sparks concludes that it is also a symbol that “has been co-opted by odious groups as a symbol of racism and white supremacy.”
In November 2011, when the Texas DMV board held a public hearing and voted against approving the license plates, the witnesses were numerous and emotional and included high profile politicians. According to an account in the Austin American-Statesman written at the time of the hearing, U.S. Rep. Sheila Jackson Lee, D-Houston, testified against the plate as a racist symbol and displayed a photograph of a Ku Klux Klan member in full white-sheet regalia holding up the Confederate battle flag. “Texas is better than this,” she said.
Another African-American individual testifying, Sparks writes, echoed the sentiments of many when he told his story, which the judge quotes in footnote to the ruling: “When I was 10 years old we walked to school, to the black school. There was a white school where the white kids rode the bus, there was another white school that was a private school, and every morning as we walked on the sidewalks as black people, the white private school bus would slow down as it passed us, while the kids on board spit out the window in our faces and displayed a Confederate battle flag. Every year in our school when they talked about the death of M.L.K., the white kids would bring in the Confederate battle flag and hold it up as a symbol of power.”
But at the same meeting, Texas General Land Office Commissioner Jerry Patterson, who supported the Sons’ bid for the plates, started off his remarks “by quoting infamously ironic statements by Abraham Lincoln and Robert E. Lee, the former suggesting the Great Emancipator in fact harbored racist sentiments, and the latter tending to show General Lee opposed slavery and desired to see all slaves emancipated,” Sparks writes. The judge then adds, “While these quotes help illustrate the complexity of the causes of the Civil War, they also further confirm the problem with the specialty plate at issue here has nothing to do with the [Sons organization] itself or any viewpoint it holds, but with the meaning of the Confederate battle flag, which has, unfortunately, become inseparably connected with racial tensions.”
In his 47-page ruling, Sparks notes that plenty of other states have allowed for similar commemorative plates, including the states of Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee and Virginia.
According to Sparks’ ruling, both statutes and regulations govern the Texas DMV board’s review of proposed plates. Those rules, he writes, quoting them, allow the department to “refuse to create a new specialty license plate if the design might be offensive to any member of the public.”
Why, then, does the judge agree that such a clause, as applied to the rejection of the proposed license plates, does not trigger a violation of the Sons’ First Amendment rights? The logic of Sparks’ ruling takes three steps — at least.
First, he concludes that the license plates do not constitute a public forum. “[L]icense plates, rather than being a place for people to gather,” are discrete pieces of government equipment to serve the purpose of vehicle identification, he writes, comparing them to mailboxes. “When the forum is nonpublic, the First Amendment still applies — albeit with reduced force,” he writes. He then concludes that previous precedents have established that “courts must uphold a governmental restriction on speech in a nonpublic forum as long as the restriction is reasonable and viewpoint-neutral.”
To illustrate why the Texas DMV board’s decision was viewpoint-neutral and not discriminatory, Sparks offers a hypothetical example of a World War II-focused historical society that wanted a specialty license plate issued with a logo that included the insignia from all sides in that conflict. The United States’ white star, the British tri-colored roundel, Imperial Japan’s rising sun, the Soviet Union’s hammer and sickle and Nazi Germany’s swastika. “If the historical society sought a specialty license plate using its composite logo, the design would properly be rejected under the specialty plate rules, not due to the (entirely unobjectionable) viewpoint of the society, but due to the derogatory content of its logo, specifically the swastika,” Sparks writes.
Sparks’ opinion offers much for constitutional scholars to chew on, and the lawyers for the Sons are considering an appeal. The last image we want to see on the back of vehicles as we drive down Texas highways is the Confederate battle flag on government-issued property. We know the difference between a private display and government-sanctioned messaging, and therefore we understand the careful path Sparks has taken on this issue. But at the same time, we would welcome an appeal of his ruling, because First Amendment violation allegations are worth looking at a second — and even third — time.