What’s Too Controversial For Your Car License Plate? Should Texas Allow Confederate Flag?

By David Barer

AUSTIN — A Southern heritage group has rekindled its fight with Texas over Confederate license plates.

Snubbed by a federal judge, the Sons of Confederate Veterans last month appealed a ruling that upheld the state’s ban of a plate that features a rebel battle flag.

It sued after the Department of Motor Vehicles twice rejected the plate in 2011. DMV board members called the slavery-era flag offensive, often linked to racist organizations.

Supporters say the banner is meant to honor Confederate soldiers, not cause controversy. They say emails disclosed in the court case show that state officials, wary of a public backlash, twisted agency rules to block their license tag emblem.

It’s a marquee legal showdown between a state government that says it has authority to outlaw derogatory symbols vs. flag advocates who say displaying it is protected free speech.

The politically charged debate also has roots in the emerging campaign for Texas lieutenant governor, where the candidates are split over the Confederate-inspired plate.

A top contender, Land Commissioner Jerry Patterson, has long pushed for approval of the plates, which the veterans group wants to sell to raise money for Civil War memorials.

Other Republicans running for that post — Lt. Gov. David Dewhurst, Agriculture Commissioner Todd Staples and Sen. Dan Patrick — have indicated they oppose the idea or say the issue has been settled.

But, responding to The Dallas Morning News, none was as direct as Gov. Rick Perry.

Perry, during his short-lived bid for president, said in late 2011 that Texas shouldn’t allow it. “We don’t need to be scraping old wounds,” he said.

Several state legislators, mainly Democrats, and other groups, including the National Association for the Advancement of Colored People, have voiced similar objections. They say the battle flag is symbol of a hateful past the state should condemn, not embrace.

Legal battle

After Perry made clear his views, the DMV voted a second time against the specialty plate, with tabs containing the words “Sons of Confederate Veterans 1896” and the red battle flag, crossed by blue bars and stars.

If the group prevails, Texas would be the largest state with the plates. Nine others have them, but Virginia, Maryland and North Carolina were forced to do so after the Tennessee-based group sued and won.

Its Texas division could have asked the Legislature to accept the plates. Instead, it sued the DMV in federal court in Austin to overturn the ban.

U.S. District Judge Sam Sparks then ruled in April that the state didn’t have to release a tag that it deems derogatory or inflammatory.

Drivers “can paint their car in the image of the Confederate flag,” he said, but “they just can’t force the state to put it on their license plate.”

The appeal of Sparks’ decision is pending in the 5th U.S. Circuit Court of Appeals in New Orleans.

The group’s lawyers said Texas officials shouldn’t stamp out a point of view simply because people may not like it. Doing so amounts to “government censorship” and “arbitrary discrimination,” said the appeal, filed by John McConnell of Austin.

“There is almost no speech that does not offend someone,” it said. Even vegetarians could be upset by the state-issued plate for Mighty Fine Burgers, an Austin fast food chain.

But the roiling debate over the meaning of the Confederate flag “is exactly [what] the First Amendment was designed to protect,” it said.

‘Editorial control’

The Texas attorney general’s office, representing the DMV, said the agency has “complete editorial control” over plate designs.

Freedom of speech, it said, does “not give anyone a right to commandeer the machinery of government to support their desired message.”

“It is rational for the state to disassociate from a symbol that many citizens will find racially offensive,” said the state’s response by the solicitor general, Jonathan Mitchell.

Independent legal experts say the outcome has been mixed in similar cases in state and federal courts.

The question is whether vanity plates are a form of private speech or government speech. That’s the distinction judges look for to apply First Amendment protections, said Gene Policinski of the First Amendment Center in Nashville.

As for GOP matchup for lieutenant governor, Patterson, a member of the veterans group, sponsored the Confederate plate on behalf of the land commission. He said the DMV overreacted.

He admonished critics who seem to believe “if it’s Southern, it’s bad.” He complained that the DMV “picks and chooses controversies, and does not apply” its approval policy equally.

Dewhurst indicated in a statement that he agreed with the anti-plate vote.

“While Texas’ history and heritage should obviously be celebrated, steps are taken to ensure such tributes are conducted in an inclusive manner,” he said.

Patrick and Staples both declined to say outright that they opposed the Confederate tag.

Patrick said he respected “the passion on both sides” but that the dispute has been decided. He said he’s focusing on other issues.

A Staples spokesman said only that he “wants to see the Lone Star flag proudly displayed on license plates as he drives across Texas.”

Staff writer Karen Brooks Harper contributed to this report.

AT A GLANCE Twisting road for rebel flag plate

Years before the legal crossfire between Texas and the Sons of Confederate Veterans, a Department of Transportation advisory group tentatively approved the rebel battle flag plate.

But state regulators scrambled behind-the-scenes and manipulated agency rules to block it from being released, the veterans group has alleged in its federal suit against Texas.

State leaders have defended their actions and say they have authority to reject offensive license plates.

Yes, then no:

In 2009, a transportation department advisory group voted in favor of the Confederate plate. Other agency officials didn’t accept that, concerned about the controversy it had caused in other states.

Some asked about finding a way to reverse the tally. One senior leader wondered whether the state could steer clear of the plate “without hacking anybody off.” Another worried that a revote would make the state look biased against the plate.

Without publicly disclosing the first vote, department leaders sent the proposal back to the seven-member advisory group. This time, it failed.

New agency, same outcome: The newly created Department of Motor Vehicles took over license plate approval duties in late 2009.

Two years later, when the veterans group renewed its request, the DMV board deadlocked on a 4-4 vote. In November 2011, it unanimously rejected the plate, 8-0.

Copyright 2013 Nexstar Broadcasting, Inc.

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