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Confederate License Plates and the First Amendment

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Today was probably not the ideal day for four members of the Shelby County majority to find that Texas was constitutionally required to issue a specialty license plate with the Confederate flag. Unlike Shelby County, Alito’s dissent is not unreasonable.  But I think the majority (the 4 Democratic nominees + Thomas) drew the line in the right place. 

Essentially, the question in this case is whether specialty plates are private speech or government speech.  If the former, then Texas’s refusal to print the Treason In Defense of Slavery plate is plainly unconstitutional viewpoint discrimination.  If the latter, refusing to endorse white supremacist symbols is certainly within the state’s discretion.  There’s a companion pending case about whether North Carolina can offer a “Choose Life” plate but not a pro-choice one that allows one to focus on the speech issue rather than the flag per se.  I remain inclined to think that the Court is right that this is government speech and while states can celebrate lawlessness in defense of apartheid on government IDs if they choose to, I don’t think they are required to.

Alas, this does mean I won’t be able to start a campaign arguing that Virginia is constitutionally obligated to issue a license plate featuring Sherman and Grant burning the Confederate flag.

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