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Confederate Plates: Free Speech or Hate Speech?

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Texans love their symbols. From the Lone Star to Longhorns, from Texas A&M University’s beloved Reveille to armadillos, there’s an image for every Texan to rally around. And if you so choose, you can drive around the Great State with your favorite Texas icon emblazoned on your license plate. Most of the state’s specialty license plates aren’t controversial—unless you have a special hatred for horned lizards. But a symbol with particular resonance may soon appear on Texas license plates: the Confederate flag.

The Texas Division of the Sons of Confederate Veterans has petitioned the Texas Department of Motor Vehicles for its own Confederacy heritage license plate that would include an image of the Confederate battle flag. Founded in 1896 to honor soldiers who fought for the Confederacy during the Civil War, the group coordinates historical reenactments and maintains soldiers’ graves, among other activities. The Texas General Land Office is the agency sponsor for the plate.

At an April meeting of the Texas DMV, a vote on the Confederate plate ended in a tie, with the eight DMV board members who were present splitting their votes. Board chairman Victor Vandergriff ordered a re-vote when all nine members could be present. With the death of one board member in June, a re-vote won’t happen until Gov. Rick Perry appoints a new member, possibly this fall.

Meanwhile, the proposed plate has engendered a lot of criticism. Texas NAACP leader Gary Bledsoe put it bluntly: “I speak for the lion’s share of African Americans in saying that the proposed plates are offensive.” He went on to say that the Confederate flag was “adopted after the [Civil War] by hate groups.”

History supports Bledsoe’s stance. As Gregory Kane wrote in 2000 for the Baltimore Sun, the Confederate flag was displayed by protesters of school integration in Little Rock, Arkansas, in 1957, and again by people demonstrating against James Meredith’s enrollment at the University of Mississippi n 1962. Rev. William Barber II, president of the North Carolina NAACP, said that “domestic terrorists have used this symbol. Hate groups have used the symbol. And now to suggest that it would be all right to use it on a government license plate … to us is the same as flying this symbol at the state capitol.”

The problem for opponents is that the plates may be considered free speech. Quite a few courts have ruled that there is, in fact, a First Amendment right to put a Confederate flag on a license plate.

One key issue is whether a license plate displays the government’s views, and is therefore government speech, or the driver’s views, making it private speech.

David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Nashville, says specialty plates are a combination of government and private speech, “with a predominance toward private speech.” He says that “the First Amendment does protect the use of the flag by the Sons of Confederate Veterans.”

Courts in Virginia, North Carolina and Florida have sided with the Sons of Confederate Veterans in previous disputes about the Confederate flag. For example, in Virginia the U.S. 4th Circuit Court of Appeals ruled that the group’s plate was private speech and therefore protected under the First Amendment. Courts haven’t always come to the same conclusion on government versus private speech, but groups promoting specialty plates almost always win in court regardless.

Most recently, a U.S. district judge in Florida sided with the Sons of Confederate Veterans, which sued the state after the Florida DMV rejected the group’s application for a Confederate heritage plate. The judge ruled that the proposed plate was protected free speech. We may soon see a similar legal battle in Texas. As many as 15,000 Sons of Confederate Veterans plates like the one proposed in Texas are already in circulation in nine states, according to the Courier-Journal in Louisville.

Displays of the Confederate flag can be considered hate speech in some cases, says Jim Harrington of the Texas Civil Rights Project. However, “courts have said, there has to be something deliberately provocative, meaning imminent violence.” A court would probably not rule that a small Confederate flag logo on a license plate—as offensive as it might be to some—could cause imminent violence.

Texas law is fairly specific regarding specialty plates. In addition to being legible, reflective, and unique, the plate can’t be vulgar or indecent, or contain “an expression of hate directed toward people or groups that is demeaning to people or groups, or associated with an organization that advocates such expressions.” In practice, however, the decision is up to TX DMV board members’ discretion.

Board members are also required to take public opinion into consideration when voting on specialty plates. The DMV posted an informal poll on its website in this spring; 77 percent of respondents supported the plate. But Progress Texas, an advocacy organization based in Austin, has mustered significant opposition to the Sons of Confederate Veterans plate. The group circulated a petition through Moveon.org that asked Gov. Perry to appoint a new DMV board member who wouldn’t approve the plate. So far, the petition has more than 20,200 signatures and counting.

Gary Bledsoe of the Texas NAACP says that if the plate does come up for a re-vote, his organization will fight it, and that “we plan to be there to be heard.” That’s free speech too, after all.