Some “Teachable” First Amendment Moments in the Supreme Court’s Oral Argument About Confederate Flags on Texas License Plates

In today’s column, I analyze the Supreme Court oral argument held a few weeks ago in Walker v. Texas Division, Sons of Confederate Veterans, a case involving the First Amendment and Texas’s regulation of license plates. Motor vehicles registered in the State of Texas must display a state-sanctioned license plate. Most vehicles use a standard-issue Texas plate that has a simple no-frills design and displays a random series of letters and numbers. Texas, like many other states, also permits individuals to submit personalized, or vanity, plates in which the numbers and letters on the plate form a message (such as “HOTSTUFF,” a hypothetical example Justice Scalia used at oral argument).

In addition, Texas permits what are called “specialty” license plates, in which the overall design of the plate (but not the sequence of numbers and letters), is custom-made and might contain symbols, colors and other visual matter that is more elaborate than the relatively plain design of the standard-issue plates. Specialty designs may be adopted by the Texas legislature or proposed by private individuals or organizations. Specialty plate designs that come from outside the legislature must be approved (as must personalized vanity plates) by the Texas Department of Motor Vehicles Board, and the Board by law “may refuse to create a new specialty license plate if the design might be offensive to any member of the public” (a term that Texas authorities construe as meaning offensive to a significant segment of the public.) At least some specialized designs, once approved, can be used by members of the general public. As of a month ago, there were about 450 specialty designs that had been approved in Texas, around 250 of which are usable by the public. Although the majority of license plates in Texas are the plain-vanilla non-specialty plates, it is not uncommon on the Texas roadways to see license plates that make use of one of the approved specialty designs.

Applicants who seek approval of specialized plate designs must pay thousands of dollars to have their designs considered, and people who use the already approved designs pay for the privilege, the proceeds going to various state agencies.

The Texas Sons of Confederate Veterans (SCV) is a nonprofit organization dedicated to preserving the memory and reputation of Confederate soldiers. SCV applied for a specialty license plate that featured the SCV logo, “which is a Confederate battle flag framed on all four sides by the words...
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