In yet another conflict between the right to free expression and censorship of offensive content, the Supreme Court is set to rule if Texas violated the First Amendment by rejecting a specialty license plate design in 2011, which displayed the ?Confederate battle flag.
Surrounding the case is an ideological battle that has erupted between interest groups, such as the Sons of Confederate Veterans, the NAACP, the clergy and others. People who support the Confederate flag specialty plate claim the right to free expression and that the denial was “an intense attack on the South and any vestige of the Confederacy in that heritage.” And, on the other side, the NAACP and other organizations point out that the Confederate flag is “a powerful symbol of the oppression of black people.”
However, much of the public debate seems to be mainly focused on the ideological aspect rather than the crucial distinction that could resolve the issue: whether or not messages on specialty plates are considered ?government or private speech.
If messages on specialty plates count as government speech, then Texas is allowed to reject whichever designs it wants. If they count as private speech, then a case could be made they violated First Amendment rights.
For the most part, the case seems to be swinging in favor of the supporters of displaying the Confederate battle flag. In 2014, the United States Court of Appeals for the Fifth Circuit ruled in favor of the Sons of Confederate Veterans, saying the “(Texas Department of Motor Vehicles) Board engaged in impermissible viewpoint discrimination” because specialty license plates counted as private speech.
Then in the Supreme Court session convened Monday, many justices seemed to disfavor the State of Texas’ argument, pointing out that Texas allows private businesses to advertise on specialty plates. This seems to suggest a general apathy on Texas’ part about specialty plate content in cases other than this one.
It is likely the Supreme Court will rule in the Sons of Confederate Veterans’ favor, given the tenuousness and vagueness of Texas’ arguments. Texas’ defense mainly relies on their claims of the “offensiveness” of the Confederate battle flag license plate and they have not suggested a systematic procedure to determine which license plates should be rejected.
However, some justices were “uncomfortable with the implications of a ruling in (the Sons of Confederate Veterans’) favor” and expressed concerns about where the line would be drawn, according to the New York Times. If the Confederate battle flag is acceptable, then are expressions of swastikas, racial slurs and profane language acceptable as well?
For all their knowledge, some of the justices’ reservations promote guidelines that are no more specific than Texas’ guidelines based on offensiveness. “Someone driving in Texas with a swastika is ... likely to trigger public violence,” Chief Justice John Roberts said.
Yet, considerations of public violence with regards to the swastika is no more predictable than violence in response to the display of a racial slur, a pro-choice/pro-life plate or other ?controversial statements.