By Mark Walsh
The U.S. Supreme Court on Monday weighed a case about the Confederate battle flag on specialty license plates that holds First Amendment implications for speech in public schools.
During the oral arguments in Walker v. Texas Division, Sons of Confederate Veterans (Case No. 14-144), the justices focused heavily on the question before them: whether Texas violates the free-speech rights of the Confederate heritage group by denying its request to be included in the state’s lucrative specialty-plate program.
But throughout the briefs in the case, there are references to what the First Amendment analysis might mean for schools, such as for regulating Confederate emblems on student shirts and pro-marijuana ads in the high school newspaper.
Citing a lower-court case involving school discipline of a student for displaying a Confederate battle flag at school, the Texas group seeking to display such a symbol on license plates said it could be a “catalyst” for discussion.
“The discussion that arises about the Confederate flag is exactly the sort of robust debate that is protected by the First Amendment, and the state may not discriminate against speakers in that debate on the basis of their viewpoint,” the Sons of Confederate Veterans says in its brief. (The group didn’t really acknowledge that many schools have barred Confederate symbols as racially disruptive and have largely been upheld in the courts.)
The Confederate heritage group is fighting a decision by Texas officials to bar the Confederate battle flag symbol from a specialty-plate program that currently permits 438 images and slogans such as “Choose Life” (an anti-abortion group), the Knights of Columbus, the Boy Scouts, the Girl Scouts, the University of Texas (and other state universities), and even a few commercial ones such as Dr Pepper and Mighty Fine Burgers, an Austin-based chain.
The board overseeing the Texas Department of Motor Vehicles narrowly rejected the Sons of Confederate Veterans’ application because, as the board wrote, “public comments have shown that many members of the general public find the design offensive.”
The group sued, and after a loss in a federal district court, the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled last year that specialty plates were private speech and that the state engaged in viewpoint discrimination in rejecting the Sons of Confederate Veterans’ design. (A dissenting judge suggested that the license plate forum was similar to the state adoption of textbooks, which the 5th Circuit has held to be government speech even though reasonable observers could also attribute their content to the private authors and publishers.)
In its brief, Texas says that denying the government’s right to disassociate from messages, symbols, and viewpoints it does not want to convey would have far-reaching consequences.
“School districts would be unable to exclude ads promoting marijuana legalization from school newspapers, yearbooks, and athletic programs,” the state’s brief says.
“This is about the state of Texas not wanting to place its stamp of approval on certain messages,” Scott A. Keller, the state’s solicitor general, said during the oral arguments. “And a speaker is not entitled to the imprimatur of the state of Texas on whatever message that it wishes to put on a license plate.”
When R. James George Jr., an Austin, Texas, lawyer representing the Sons of Confederate Veterans, had his turn, Justice Ruth Bader Ginsburg pressed him on how accepting the state would have to be of potentially offensive viewpoints.
What about a swastika or “Jihad,” she wanted to know. George said yes, those symbols could not be rejected under his theory.
“How about ‘Make pot legal,’”? Ginsburg continued. Yes, George said.
“That’s okay?” Ginsburg said. “And ‘Bong hits for Jesus,’” she asked, in reference to the message displayed by a high school student whose discipline was upheld by the Supreme Court in 2007 in Morse v. Frederick.
Yes, that too, George said. He argued for a “reasonable observer” test in which such a person would not believe a Confederate battle flag or any other potentially offensive symbol would be the speech of the state.
“The state has ... 480 designs for organizational messages,” George said. “And the issue in this case is the person who puts the license plates on their car is the one that communicates the message.”
Several legal groups that often take the side of students in free speech conflicts with schools have sided with the Sons of Confederate Veterans.
The Becket Fund for Religious Liberty argued in a friend-of-the-court brief that the Texas specialty license plate program is a public forum akin to the after-school meeting spaces that the Supreme Court ruled in a 2001 case, Good News Club v. Milford Central School, could not be denied to a student religious club.
A decision in the case is expected by June.
A version of this news article first appeared in The School Law Blog.