LAWRENCEVILLE, Va. — Attorneys for The Rutherford Institute have filed a petition with a Virginia Circuit Court challenging an order of the state Department of Motor Vehicles (DMV) cancelling, revoking and/or demanding the return of specialty commemorative license plates issued to the Sons of Confederate Veterans (SCV) bearing the Confederate battle flag on the grounds that such a recall is unauthorized by Virginia law and beyond the power of the DMV. The DMV’s order comes in the wake of a U.S. Supreme Court decision holding that states issuing specialty license plates may engage in viewpoint discrimination when granting applications for specialty license plate designs. However, in the petition challenging the DMV’s September 2015 order, Rutherford Institute attorneys assert the order is unlawful and does not comply with Virginia statutes relating to the cancellation and recall of license plates.
“No matter what the U.S. Supreme Court might say about the matter, 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,” said John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People.
Under Virginia law, specialty Virginia license plates bearing an organization’s logo and motto in addition to letters and numbers as found on other Virginia license plates may be issued to members and supporters of various organizations or groups. In 1999, The Rutherford Institute and the Sons of Confederate Veterans (SCV), a non-profit organization dedicated to preserving the history and legacy of citizen-soldiers who fought for the Confederacy in the Civil War, brought a lawsuit against Virginia and the DMV challenging its refusal to include the logo of the SCV which includes the Confederate battle flag. A federal district court ruled in 2001 that the State’s refusal to include the Confederate battle flag on SCV specialty plates constituted viewpoint discrimination in violation of the First Amendment. This ruling was upheld by the Fourth Circuit Court of Appeals in 2002.
Shortly thereafter, the DMV began issuing SCV specialty license plates which included a display of the Confederate battle flag. However, in June 2015, the U.S. Supreme Court ruled in Walker v. Tex. Div. of SCV that specialty license plates do not represent the speech of the individual motorists who purchase them, and that Texas could refuse to issue plates with the SCV’s Confederate battle flag logo. Following the ruling, Virginia’s DMV was granted permission by a federal court to be relieved from the orders entered in 2001 and 2002 respecting the SCV specialty plates. Soon after, the DMV notified SCV members that the previously-issued plates had been cancelled and were being recalled. In legal papers filed with the Circuit Court for Brunswick County, on behalf of Leonard Tracy Clary, Rutherford Institute attorneys challenge the DMV’s decision to cancel, revoke and/or demand the return of the SCV license plates, while ordering that recipients display new plates that do not bear the true logo of the SCV, which includes the Confederate battle flag.
Attorney Fred D. Taylor of Bush & Taylor, P.C., in Suffolk, Va., is assisting The Rutherford Institute in representing Clary and challenging the DMV order.