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Court: Texas can bar Confederate flag

By Lauren McGaughyand Kevin Diaz
June 18, 2015 at 11:32 p.m.

This image provided by the Texas Department of Motor Vehicles shows the design of a proposed Sons of Confederate Veterans license plate. The Supreme Court has upheld Texas' refusal to issue a license plate bearing the Confederate battle flag, rejecting a free-speech challenge. The court said Thursday that Texas can limit the content of license plates because they are state property and not the equivalent of a bumper sticker. (AP Photo/Texas Department of Motor Vehicles)

AUSTIN — In a case fraught with racial overtones, the U.S. Supreme Court on Thursday backed Texas' refusal to issue license plates with the Confederate battle flag, a decision that was watched closely in Southern states where the Civil War still can arouse strong feelings.

Such plates, Justice Stephen G. Breyer wrote for the majority, are the government's speech and are thus immune from First Amendment attacks.

In the 5-4 ruling, the high court sided with the Texas Department of Motor Vehicles Board, which voted unanimously in 2011 to deny a request from the Sons of Confederate Veterans for a specialty license plate featuring the controversial symbol.

In its refusal, a rarity for the state's specialty license plate program, the board noted that "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."

The Confederate veterans group, however, argued it merely wanted to honor the state's history, and called the board's action censorship and an infringement on free speech.

But Breyer said messages on government-issued license plates constitute "government speech." Accordingly, he said, state officials do not have to promulgate messages "with which they do not wish to be associated."

"A person who displays a message on a Texas license plate likely intends to convey to the public that the state has endorsed that message," Breyer continued. "If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate."

In a stinging dissent, Justice Samuel Alito called the majority opinion a "dangerous" expansion of government discretion.

"The court's decision," he said, "passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing."

Alito noted that Texas makes money selling more than 350 specialty license plates ranging from Dr Pepper to Mighty Fine Burgers. He mocked the idea they represent official state endorsements.

"If a car with a plate that says 'Rather Be Golfing' passed by at 8:30 a.m. on a Monday morning, would you think: 'This is the official policy of the State — better to golf than to work?'" Alito wrote. "This capacious understanding of government speech takes a large and painful bite out of the First Amendment."

Texas officials hailed the ruling as a victory for the integrity of specialty license plate programs. Attorney General Ken Paxton said the decision "confirms that citizens cannot compel the government to speak, just as the government cannot compel citizens to speak."

Civil rights leaders also welcomed the ruling.

"I firmly believe an endorsement of the Confederate flag has no place in official government speech," said U.S. Rep. Al Green, D-Houston, and a former NAACP leader. "I support the American flag, which unites us all, and also stands for liberty and justice for all. The Confederate flag divides us. The government should not endorse abhorrently divisive symbols."

While Texas came out the winner in the case, the high court's narrow 5-4 ruling showed how even 150 years after Gen. Robert. E. Lee's surrender at Appomattox, Confederate symbols still can divide a nation struggling with a history of racial oppression.

Justice Clarence Thomas, an African-American justice who normally sides with the conservative wing of the court, turned into the pivotal vote for Breyer and the rest of the court's liberals: Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. Justices Anthony Kennedy, Antonin Scalia and Chief Justice John Roberts joined Alito in the dissent.

The high court's decision leaves the controversy in the court of public opinion. The justices did not ban Confederate license plates; they simply said there is nothing that requires states to issue them. That means that in other states where the issue has been contested, like Florida, the Confederate veterans' group will have to win political battles in state capitols and agencies that issue license plates.

Sandy Levinson, a constitutional law expert at the University of Texas at Austin School of Law, said the ruling could help other states with specialty plate programs avoid similar "embarrassing litigation" in future. Nine other states offer plates featuring the flag, while just three former Confederate states — Texas, Arkansas and Florida — do not.

"If you allowed the Confederate flag you really cannot keep off the swastika," Levinson said. "If Alito had won, if he'd gotten Thomas' vote, there would inevitably have been more litigation by the local Nazi group, the local out-and-out white supremacist group."

In oral arguments before the Supreme Court, some of the justices questioned whether it might be easier for states to get out of the business of raising revenue through specialty license plates altogether.

Adam Liptak of the New York Times contributed to this report.

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