You can take my vanity plates when you pry them from my cold dead fingers! Not exactly the most serious declaration we’re ever published here, but it’s relevant to the Supreme Court’s latest free speech case, and could end up playing a role in a new standard governing content allowed on custom license plates.

The Circuits are currently split on the issue of whether or not state governments can pick and choose between political messages requested for vanity plates; there’s no consensus as to whether or not the message on the plate constitutes the speech of the driver, and is entitled to a higher level of protection.

The Supreme Court has agreed to review Walker v. Texas Division, Sons of Confederate Veterans, Inc., and free speech advocates are hoping that the facts of this case can be applied to similar situations all across the country:

A panel of the U.S. Court of Appeals for the 5th Circuit said Texas officials were wrong to turn down a request from the Sons of Confederate Veterans. The requested plate would have featured the group’s logo: a Confederate battle flag framed on all four sides by the words “Sons of Confederate Veterans 1896.”

After several votes, the board of the Texas Department of Motor Vehicles turned down the request because it found “a significant portion of the public associate the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”

A district court upheld the decision, but the appeals panel reversed it.

The board “discriminated” against the group’s view “that the Confederate flag is a symbol of sacrifice, independence, and Southern heritage,” Circuit Judge Edward C. Prado wrote.

“We understand that some members of the public find the Confederate flag offensive. But that fact does not justify the board’s decision; this is exactly what the First Amendment was designed to protect against.”

Prado said it would be clear that the license plate represented the speech of the motorist, not Texas.

North Carolina is dealing with a similar brouhaha over a “Choose Life” (of course) license plate, and has also petitioned the Supreme Court for review.

The actual legal questions at hand in Walker are (1) whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality; and (2) whether Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the confederacy or the confederate battle flag in a negative or critical light. 1977’s Wooley v. Maynard treated a license plate as a form of expression on private land, but didn’t actually classify the speech as private or government generally; 2009’s Pleasant Grove City v. Summum clarified that government entities do have a right to speak for themselves, but the holding addressed the building of monuments in a public park, not a plate on a privately-owned vehicle.

We’re not going to hear arguments on the merits of this case until well into next year, so for now, let’s all think happy thoughts of the confederate-themed chaos that will ensue on the steps of the courthouse when the Court finally announces its decision.

h/t ABA Journal


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