On The Front Lines

Rutherford Institute Asks U.S. Supreme Court to Reject Government Censorship, Protect Specialty License Plates as Private Speech Under the First Amendment

WASHINGTON, D.C. — Weighing in on a case that pits government attempts at censorship against expression protected by the First Amendment, The Rutherford Institute has asked the U.S. Supreme Court to affirm that specialty license plates are private speech which may not be censored on the basis of viewpoint. In an amicus curiae brief filed in Walker v. Texas Division, Sons of Confederate Veterans, Inc., Rutherford Institute attorneys urged the Court to reject the state of Texas’ contention that specialty license plate programs are a kind of “government speech” subject to the complete control of state officials. At issue in the case is whether government officials violated the First Amendment when they denied a Civil War heritage group’s request for a specialty plate bearing the Confederate battle flag, allegedly because the Department of Motor Vehicles was concerned some people would be offended by the Confederate flag.

“We seem to be witnessing an elitist philosophy at play in recent years, one shared by both the extreme left and the extreme right, which aims to stifle all expression that doesn't fit within their parameters of what they consider to be ‘acceptable’ speech. There are all kinds of labels put on such speech: it's been called politically incorrect speech, hate speech, offensive speech, and so on, but really, the message being conveyed is that you don't have a right to express yourself if certain people don't like or agree with what you are saying, ” said John W. Whitehead, president of The Rutherford Institute and author of the award-winning A Government of Wolves: The Emerging American Police State. “Thankfully, the First Amendment is unmistakably clear about the fact that the government has no right to dictate how we should act, what we should believe or what we should say, nor should it be in the business of determining what is or is not offensive—whether such expression appears on a license plate, a T-shirt, or a protest sign.”

Like many states, Texas allows motorists to use specialty license plates, which display a message or symbol supporting a cause or nonprofit group. By law, any nonprofit organization is allowed to apply for a specialty plate by submitting a design to be approved by the Department of Motor Vehicles. In 2009, Texas SCV, a nonprofit organization that works to preserve the memory and reputation of soldiers who fought for the Confederacy during the Civil War, applied for a specialty license plate and submitted a design that featured the SCV logo, which is a Confederate battle flag framed on all four sides by the words “Sons of Confederate Veterans 1896.”

When the matter reached the DMV, it asked for public comment on approval of the application, and in response received comments both supporting and against the application. Eventually, the DMV voted to deny the application, explaining that some of the public comments found the Confederate flag portion of the propose plate offensive. The SCV then filed suit, alleging that the denial of the application constituted viewpoint discrimination in violation of the First Amendment. A district court subsequently ruled that the state did not violate the Constitution. On appeal, however, the Court of Appeals for the Fifth Circuit reversed that decision, holding that the specialty license plates are private speech protected by the First Amendment. Moreover, the Fifth Circuit ruled that the DMV unconstitutionally discriminated against the SCV by classifying as offensive its view that the Confederate flag is a symbol of sacrifice, independence, and Southern heritage.

In its amicus brief before the U.S. Supreme Court, Rutherford Institute attorneys argue that by inviting groups to engage in private speech and contribute to the marketplace of ideas, the government has surrendered the right to treat the license plate as “government speech” subject to any censorship the state deems appropriate. Affiliate attorneys D. Alicia Hickok and Todd N. Hutchinson of Drinker, Biddle & Reath LLP, in Philadelphia, assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.