A federal appeals panel ruled 2-1 that the Department of Motor Vehicles had violated the Sons of Confederate Veterans’ free speech rights and engaged in “viewpoint discrimination” when it rejected its specialty plate in 2011.
The judgment rekindled a loud debate among those who say the symbol honors Confederate heritage and others who see it as racially offensive and hurtful.
An attorney for the Texas chapter, John McConnell, said the ruling reaffirms that “the government cannot step into an issue and silence one side while endorsing the viewpoint of the other side.”
Opponents said they were dismayed by the ruling of the 5th U.S. Circuit Court of Appeals in New Orleans. That’s where the heritage group took its fight after an Austin federal judge rejected its lawsuit against the DMV and upheld the state’s ban on the plate.
“This is a sad day for African-Americans and others victimized by hate groups in this state,” said Gary Bledsoe, president of the NAACP in Texas. He said such a Confederate-inspired plate “marginalizes American citizens” and is akin to memorializing slavery.
The state attorney general’s office, which represented the DMV, said it is reviewing its options, such as requesting a hearing before the full appeals court or taking it to the U.S. Supreme Court.
Although the next steps were not fully clear, Texas would become the largest state to sell the plates, which feature the words “Sons of Confederate Veterans 1896” and the red Confederate “battle flag” with blue bars and white stars.
Nine other states have them, including Virginia, Maryland and North Carolina, which permitted the tags only after the Tennessee-based group sued and won.
It has been a marquee legal showdown between a state government that says it has authority to outlaw derogatory symbols vs. flag advocates who say displaying it is protected free speech.
The group pushed to get approval to sell the plates in Texas as a way to raise funds for its projects. But the DMV board twice denied it, calling it objectionable.
The group sued and lost the first round when U.S. District Judge Sam Sparks in Austin said the state didn’t have to release a tag that it deemed derogatory or inflammatory.
The group appealed, arguing that Texas officials shouldn’t stamp out a point of view simply because people may not like it. Doing so amounts to “government censorship” and “arbitrary discrimination,” it said.
Land Commissioner Jerry Patterson, who helped sponsor the group’s proposal before the DMV, said Monday that the Civil War-era flag has been misconstrued. The plate is meant to honor Confederate soldiers, not cause controversy, he said.
“It’s a victory for free speech and for those who are sick and tired of folks being offended at the slightest drop of a hat,” said Patterson, who lost a GOP bid for lieutenant governor this year.
Gov. Rick Perry’s office did not immediately return a call for comment, but he came out against it in 2011, when he was running for president. “We don’t need to be scraping old wounds,” he said then.
In its argument to the appeals court, the attorney general’s office said the DMV has “complete editorial control” over plate designs.
Freedom of speech, it said, does “not give anyone a right to commandeer the machinery of government to support their desired message.”
But the federal panel said the tags should be considered private speech and protected by the First Amendment. The court also said the board’s standard for what qualifies as offensive was too vague.
“The tortured procedural history that eventually led to the denial of Texas SCV’s plate demonstrates that the subjective standard of offensiveness led to viewpoint discrimination,” the court said.
Judges Edward Prado and Jennifer Elrod, who upheld the group’s suit, said that under a “reasonable observer” test, others would see the plate as a statement of the driver and not of the state issuing it. Jerry Smith, the dissenting judge, said he found no precedent in the law to support such a test.
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