July 14, 2014

Suit over Confederate flag sent back to lower court

Appeals court says a state board violated the First Amendment rights of the Texas Division of the Sons of Confederate Veterans when it refused to allow a specialty license plate with a rebel battle flag.

The Texas Division of the Sons of Confederate Veterans won a round Monday in its suit involving a state board’s rejection of a specialty license plate featuring the Confederate battle flag.

In 2011, the board of the state Department of Motor Vehicles, chaired by Victor Vandergriff of Arlington, rejected the group’s application for a specialty license plate, and the Sons sued in federal court, saying their First Amendment rights to free expression had been violated.

Last year, U.S. District Judge Sam Sparks dismissed the suit, ruling that the First Amendment doesn’t require the state to place a group’s flag on government-controlled property.

A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans ruled Monday that Sparks was wrong and the DMV board “engaged in impermissible viewpoint discrimination and violated [the Sons’] rights under the First Amendment.”

In arguments to the three judges last year, Texas Solicitor General Jonathan Mitchell denied that the board discriminated against the group. Mitchell said the “government-speech doctrine” allows the state to pick and choose which messages and symbols appear on the state-issued plates.

If the board was required to maintain “viewpoint neutrality,” its members would have to issue specialty plates to anyone who applied for one or else scrap the program altogether, Mitchell argued.

“There’s no way to issue a specialty plate without favoring one viewpoint over another,” he said.

In the decision released Monday, Judges Jennifer Walker Elrod and Edward C. Prado wrote: “In explaining its denial of Texas [Sons’] application, the Board stated it denied the plate, ‘specifically the confederate flag portion of the design, because public comments have shown that many members of the general public find the design offensive.’ By rejecting the plate because it was offensive, the Board discriminated against Texas [Sons’] view that the Confederate flag is a symbol of sacrifice, independence, and Southern heritage.

“The Board’s decision implicitly dismissed that perspective and instead credited the view that the Confederate flag is an inflammatory symbol of hate and oppression.”

The judges noted that a number of other veterans groups have their own specialty plate including Korea, Vietnam, women, Buffalo Soldiers, Operation Iraqi Freedom and World War II.

“Given Texas’s history of approving veterans plates and the reasons the board offered for rejecting [the Sons’] plate, it appears that the only reason the Board rejected the plate is the viewpoint it represents,” the judges wrote.

They said they understood that some people find the Confederate flag offensive. “But that does not justify the Board’s decision; this is exactly what the First Amendment was designed to protect against.”

Judge Jerry Smith dissented from the opinion.

The ruling returns the case to Sparks for reconsideration.

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