A federal judge has rejected an effort to force the Department of Motor Vehicles board of directors to approve issuance of specialty license plates bearing the Confederate battle flag.

On April 12, U.S. District Judge Sam Sparks of the Western District of Texas issued a take-nothing final judgment in Texas Division, Sons of Confederate Veterans, Inc. et al v. Texas Department of Motor Vehicles Board et al. The nonprofit Texas Division of the Sons of Confederate Veterans (Texas SCV), its lieutenant commander Granvel J. Block, and its past commander Ray W. James filed a complaint in 2011 against the remaining defendants, which include eight members of the board of directors of the Texas Division of Motor Vehicle in their official capacities. They alleged that the defendants violated their First Amendment rights by denying approval of the proposed plates. The plaintiffs also sought an injunction mandating approval of the proposed plates. Sparks denied the plaintiffs’ summary judgment motion and granted the defendants’ summary judgment motion on April 12.

John R. McConnell, a partner in Austin’s George, Brothers, Kincaid & Horton, who represents all the plaintiffs, says about the case: "We think it was wrongly decided and we are weighing our options. What the state did was espouse the viewpoint of those who are offended by the Confederate battle flag and discriminate against those who hold in historical significance. The state cannot establish a forum for people to express themselves and then discriminate against one group of people because they have a viewpoint that is contrary to another viewpoint."

The Texas Office of the Attorney General represents the defendants. Tom Kelley, a spokesman for the AG, writes in an email that agency lawyers decline comment.

Sparks wrote in his order that the U.S. Supreme Court "has repeatedly upheld content-based exclusions in nonpublic forums." He noted that specialty license plates constitute a non-public forum because they are created as government-issued equipment. Sparks noted other forums deemed nonpublic include interschool mail systems and mail boxes.

Sparks wrote that the Texas DMV board members rejected the Texas SCV’s proposed plates because of their content: a flag that "has been coopted by odious groups as a symbol of racism and white supremacy."

Sparks rejected the Texas SCV plaintiffs’ argument that the Texas DMV board members had discriminated against them based on their viewpoint, using a hypothetical:

Imagine a historical society, we might call it, the "Axis & Allies Society," dedicated to studying all aspects of the Second World War from a nationally neutral and objective point of view. Accordingly, as its logo, it chooses some design which incorporates the various national symbols used by all the major combatants: a white star for the United States, the British tri-colored roundel, the rising sun of imperial Japan, the hammer and sickle of the Soviet Union, and the swastika of the Third Reich. 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 concluded: "It is a sad fact the Confederate battle flag has been coopted by odious groups as a symbol of racism and white supremacy. There is no reason to doubt the SCV and its members are entirely heartfelt in their condemnation of this misuse. It is to be hoped the passage of time . . . will eventually remove a blight from the flag under which feats of great heroism and fortitude were accomplished. . . . Nevertheless, the state of Texas has chosen to abstain from this debate, and the First Amendment does not require it to open up state-issued license plates as an additional forum in which to contest the flag’s meaning."

McConnell adds, "There is no dispute that the flag has been used by such groups but there is no dispute that it has historical significance to