Fight over Texas License Plate With Confederate Flag Heads to High Court
Sons of Confederate Veterans say state’s rejection of plate violates their free-speech rights
ENLARGE
Proposed design of a Texas license plate showing the Confederate battle flag has proved controversial.
Photo:
Associated Press
On Monday, the U.S. Supreme Court will hear arguments over whether the state’s rejection of the plate violates the group’s free-speech rights. The case could clarify how far states with such programs can control the messages on specialty tags. All 50 states and the District of Columbia issue special-interest tags, charging a premium over standard registration fees and splitting the revenue with private causes.
Texas says it can limit what messages appear on its plates since each one expresses a message the state has endorsed, and therefore is government speech. The state says it has no obligation to provide equal opportunity for messages it opposes.
The Sons of Confederate Veterans say by providing license-plate space to private groups, the state has created a public forum similar to a town square or public-access cable channel—a place where government can’t control the content of speech because of the First Amendment.
“Why do people jump on us? Because we’re the South, we’re the Confederacy, we’re the bad guys, we were the nasty, rotten slave owners and did all these nasty things,” Johnnie Lee Holley, a retired airline pilot in Hawkins, Texas, and commander of the group’s Texas division, said in an interview. “We resent it.”
Mr. Holley, 73 years old, described his organization as “a historical and heritage group” with about 2,700 Texas members that builds monuments to honor the Confederate dead and maintains their cemeteries. According to its newsletter, the group, which paid an $8,000 application fee, would reap an annual income stream of up to $15,000 from plate fees.
“Our fundamental right to free speech must be protected, but that right does not include compelling the state of Texas to approve any image on state-issued license plates,” said Cynthia Meyer, a spokeswoman for Republican Texas Attorney General Ken Paxton. In legal papers, Mr. Paxton said, “Texas is not willing to propagate the Confederate battle flag by etching that image onto state-issued license plates.”
If the group’s argument prevailed, Mr. Paxton said, the state might have to cancel plates proclaiming “Stop Child Abuse,” “Mothers Against Drunk Driving” and “Keep Texas Beautiful” unless it “also provides specialty plates with messages supporting child abuse, drunk driving and littering.”
The court’s first major license-plate decision came in 1977 when the justices struck down a New Hampshire law forbidding motorists from obscuring the state motto, “Live Free or Die,” on its plates. The court said the state couldn’t force individuals to “use their private property as a ‘mobile billboard’ for the state’s ideological message.”
Texas, which lost at a federal appeals court, bases its argument on a 2009 decision where the justices found that Summum, a Utah religious group that practices mummification, wasn’t entitled to erect a stone monolith in a town park even though officials had allowed private parties to install 11 other monuments in the area.
The government retains the “freedom to express its views when it receives assistance from private sources for the purpose of delivering a government-controlled message,” Justice Samuel Alito wrote in that ruling.
The Fifth U.S. Circuit Court of Appeals in New Orleans last July ruled for the Confederate group.saying that “a reasonable observer would understand that the specialty license plates are private speech.” Judge Edward Prado, writing for the appeals court, said, “States have not traditionally used license plates to convey a particular message to the public.”
Federal appeals courts are split on the issue. The Sixth Circuit, in Cincinnati, for instance, ruled in 2006 specialty plates conveyed government speech, so Tennessee was free to issue “Choose Life” tags without offering a corresponding “Pro Choice” version.
The Sons of Confederate Veterans had little reason to expect resistance from Texas when it applied in 2009. Texas joined the Confederacy in 1861, and every Jan. 17 its Department of Motor Vehicles, and other state agencies, closes to celebrate Confederate Heroes Day. Several other states—including one that remained in the Union, Maryland— have approved specialty plates for other chapters of the group featuring the Confederate battle flag.
Several Texas Republicans including then-Gov. Rick Perry joined Democrats in opposing the emblem. After a 2011 hearing, a state board rejected the design, finding “a significant portion of the public associates the Confederate flag with organizations advocating expressions of hate directed toward [particular] people or groups.”
Mr. Holley said such feelings are a misunderstanding.
The Confederate battle flag, featuring the Southern Cross, “did not represent the Confederate government,” but was adopted as a “soldiers’ flag” to distinguish Confederate units from Union forces, he said.
“True, the Ku Klux Klan, they carry the battle flag occasionally, but they also carry the United States flag,” he said. “You can’t help what some fringe elements do.”
Write to Jess Bravin at jess.bravin@wsj.com
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Home > LI Confidential > Stop scratching on holidays
Stop scratching on holidays
Published: June 1, 2012
Off Track Betting in New York State has been racing into a crisis called shrinking revenue. Some people have spitballed a solution: Don’t close on holidays.
New York State Racing Law bars racing on Christmas, Easter and Palm Sunday, and the state has ruled OTBs can’t handle action on those days, even though they could easily broadcast races from out of state.
“You should be able to bet whenever you want,” said Jackson Leeds, a Nassau OTB employee who makes an occasional bet. He added some irrefutable logic: “How is the business going to make money if you’re not open to take people’s bets?”
Elias Tsekerides, president of the Federation of Hellenic Societies of Greater New York, said OTB is open on Greek Orthodox Easter and Palm Sunday.
“I don’t want discrimination,” Tsekerides said. “They close for the Catholics, but open for the Greek Orthodox? It’s either open for all or not open.”
OTB officials have said they lose millions by closing on Palm Sunday alone, with tracks such as Gulfstream, Santa Anita, Turf Paradise and Hawthorne running.
One option: OTBs could just stay open and face the consequences. New York City OTB did just that back in 2003. The handle was about $1.5 million – and OTB was fined $5,000.
Easy money.
