The design of the proposed Texas state license plate.
The design of the proposed Texas state license plate. (Credit: Texas Department of Motor Vehicles)

The U.S. Supreme Court ruled on Thursday that Texas can keep the Confederate flag off the specialty license plates it issues to drivers.

Rejecting a First Amendment claim by the Sons of Confederate Veterans, the justices ruled, 5-4, that the license plates are a form of government—not private—speech, thereby giving the state leeway to decide which messages are allowed on the plates.

“When government speaks, it is not barred by the free speech clause from determining the content of what it says,” Justice Stephen Breyer wrote for the majority. Government statements, Breyer said, “do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.”

The ruling came in Walker v. Texas Division, Sons of Confederate Veterans, in which the Confederate group claimed the state violated its free speech rights by rejecting its proposal for creating a vanity license plate that would include an image of the controversial battle flag.

In response, Texas asserted the First Amendment does not prohibit states from picking and choosing the speech they express or endorse on license plates that bear the state’s name. But the veterans’ group claimed, and the U.S. Court of Appeals for the Fifth Circuit agreed, that the license plates convey the messages of individual drivers, which are harder to censor under the First Amendment.

Justice Samuel Alito Jr., writing for the four dissenters, said the license plates should be recognized as private speech, and warned that the majority ruling could lead to state censorship of ideas it does not like.

“The court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing,” Alito wrote.

As an illustration, Alito cited another specialty plate that Texas does allow. “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?’ ”

Chief Justice John Roberts Jr. and justices Antonin Scalia and Anthony Kennedy joined Alito’s dissent. Conservative Justice Clarence Thomas sided with the court’s liberals in the majority, also joined by justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

During arguments in March, several justices expressed fear that if they ruled that Confederate flag plates must be allowed on free speech grounds, it will be impossible to stop motorists from displaying swastikas or foul language on license plates as well.

At one point, Roberts even suggested that doing away with vanity plates altogether might be the “easy answer” to all the ramifications of allowing the Confederate flag on the Texas plates.

In several recent cases, the court has struggled to find ways that would allow government to restrict certain kinds of speech, often doing so by classifying the speech as government speech rather than private expression.

Texas Solicitor General Scott Keller defended rejecting the Confederate plates, while R. James George Jr., a partner at George Brothers Kincaid & Horton in Austin, represented the Confederate group.

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Below: Read the Supreme Court ruling in Walker v. Texas Division, Son of Confederate Veterans.