Skip to main content
Part of complete coverage from

Confederate flag doesn't belong on license plates

By Danny Cevallos
August 5, 2014 -- Updated 1502 GMT (2302 HKT)
STORY HIGHLIGHTS
  • Danny Cevallos: States can't ban the confederate flag from license plates
  • He says courts have ruled the plates are protected free speech
  • Cevallos: States shouldn't have gotten into the business of selling specialty plates
  • There are better ways to express opinions than on license plates, he says

Editor's note: Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN) -- Can a state ban license plates that display the Confederate flag?

A court of appeals in Louisiana recently ruled that the Texas Department of Motor Vehicles Board violated a nonprofit organization's free speech rights when it denied the Sons of Confederate Veterans' application for a specialty license plate featuring the Confederate flag.

The court waded into a controversial issue that has roiled the politics of several states. In Georgia, which has offered such plates for more than 10 years, State Sen. Jason Carter, the grandson of President Jimmy Carter, has intimated that if he is elected governor of Georgia, he will not stop the state from issuing license plates featuring the Confederate battle flag. He has said citizens have a right to the Sons of Confederate Veterans-backed license plate, which features a stylized Confederate flag.

Danny Cevallos
Danny Cevallos

In the case of Texas, the court's opinion said, a two-step analysis should apply to the question of whether citizens have a right to these specialty plates.

First, whose "speech" is a specialty license plate? The citizen? Or the state? If the plates are government speech, then the analysis ends: the state wins, and the citizens (the Sons of Confederate Veterans) lose. The government not only has a right to speech, it is entitled to select whatever views it wants to express.

What is government "speech," anyway? One example is the government's discretion to choose—and reject—works of art displayed in a public park, because citizens would assume that art in a park is government speech.

Man defends flying KKK, Confederate flag

When the government speaks, a citizen has no legal basis to complain, because the Free Speech Clause only prevents regulation of a person's speech, not the government's own speech. In the case of a public park, for example, a city can erect a monument to veterans of the Spanish-American War, and decline to erect a donated monument to Nazi veterans.

According to most courts, license plates, even when owned by the government, are private speech. This is because we associate the message on the plate with the driver, and not the government.

It makes some sense: if you pull up to a Corvette with PLYBOY1 vanity plates from Ohio, you roll your eyes at the cheesiness of the driver, and not at the Ohio legislature. Ultimately, it seems, that when the government decides to rent out space on its property, then it loses some control over the message on that property.

Once the court determined license plates are private speech, it moved on to the next step. By rejecting the plate because it was offensive, the board engaged in what is called impermissible "viewpoint discrimination." It's true that sometimes the government can discriminate against speech because of its subject matter if it preserves the limited forum's purposes. On the other hand, discrimination because of the speaker's specific motivating ideology, opinion or perspective is presumptively unconstitutional.

The court said, "By rejecting the plate because it was offensive, the board discriminated against Texas Sons of Confederate Veterans' 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."

Also interesting was the court's observation that Texas' specialty license plate program features other plates that honor veterans, including Vietnam veterans, female veterans, and Buffalo Soldiers. It's a thought-provoking secondary question: Are Confederate veterans entitled to the same respect we give other veterans?

Once the court concluded that the board discriminated against the Sons of Confederate Veterans, the court concluded that the group's license plates are protected private speech. The Sons of Confederate Veterans appears to have won this battle.

But both the Sons of Confederate Veterans and the state of Texas have lost the war: of common sense.

As much as fans of the law enjoy a good First Amendment case, practical citizens might hold both sides in contempt—eye-rolling, head-shaking, social contempt. Because while determining the extent of our free speech rights is valuable, it comes at a steep price: litigation costs and time. For squandering our resources, both sides are at fault.

The Sons of Confederate Veterans is at fault, but not for the group's controversial views. No, this indictment is leveled at the Sons of Confederate Veterans, and all license plate rabble-rousers: You have all the rest of the square footage of your car other than that license plate to festoon with whatever message you like. Heck, if you have an orange 1969 Dodge Charger, you're free to name it after a Confederate general, paint a giant Confederate flag on the roof, and have the horn play Dixie. Not only would that be protected speech, if it were still the 1980s, you'd have a hit TV show on CBS. You have the entire rest of your car to "speak" -- why insist on having your message on the 30 square inches of Texas license plate that's going to cause problems?

The Texas Department of Motor Vehicles —in fact, every DMV that offers specialty or vanity plates -- is also equally to blame. Selling this space on government plates is a thinly veiled and unnecessary money grab by the state. Plus, whatever revenue these generate has to be offset by litigation costs when a controversial group like, say, NAMBLA, North American Man/Boy Love Association, applies for its own plate. Once the government decided to make a buck off license plates, it opened its own Pandora's glovebox.

It's true that the Confederate flag is a divisive symbol. To many, it represents such notions as heritage, rebellion and possibly even state sovereignty. To others, it represents slavery, small-mindedness and even treason.

Make no mistake, the limits of speech on license plates have yet to be fully defined, but the government brought this debate to our commute by selling ad space on its license plates.

Read CNNOpinion's new Flipboard magazine.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
October 22, 2014 -- Updated 2101 GMT (0501 HKT)
Paul Callan says the grand jury is the right process to use to decide if charges should be brought against the police officer
October 23, 2014 -- Updated 1619 GMT (0019 HKT)
Theresa Brown says the Ebola crisis brought nurses into the national conversation on health care. They need to stay there.
October 21, 2014 -- Updated 2235 GMT (0635 HKT)
Patrick Hornbeck says don't buy the hype: The arguments the Vatican used in its interim report would have virtually guaranteed that same-sex couples remained second class citizens
October 24, 2014 -- Updated 1336 GMT (2136 HKT)
Paul Begala says Iowa's U.S. Senate candidate, Joni Ernst, told NRA she has right to use gun to defend herself--even from the government. But shooting at officials is not what the Founders had in mind
October 23, 2014 -- Updated 2208 GMT (0608 HKT)
John Sutter: Why are we so surprised the head of a major international corporation learned another language?
October 23, 2014 -- Updated 2154 GMT (0554 HKT)
Jason Johnson says Ferguson isn't a downtrodden community rising up against the white oppressor, but it is looking for justice
October 24, 2014 -- Updated 1621 GMT (0021 HKT)
Sally Kohn says a video of little girls dressed as princesses using the F-word very loudly to condemn sexism is provocative. But is it exploitative?
October 21, 2014 -- Updated 2006 GMT (0406 HKT)
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
October 23, 2014 -- Updated 1414 GMT (2214 HKT)
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
October 21, 2014 -- Updated 1600 GMT (0000 HKT)
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
October 21, 2014 -- Updated 1135 GMT (1935 HKT)
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
October 21, 2014 -- Updated 1312 GMT (2112 HKT)
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
October 21, 2014 -- Updated 1851 GMT (0251 HKT)
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
October 21, 2014 -- Updated 2207 GMT (0607 HKT)
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
October 20, 2014 -- Updated 1329 GMT (2129 HKT)
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
October 20, 2014 -- Updated 2012 GMT (0412 HKT)
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
October 20, 2014 -- Updated 0336 GMT (1136 HKT)
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
October 20, 2014 -- Updated 1223 GMT (2023 HKT)
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
October 20, 2014 -- Updated 0221 GMT (1021 HKT)
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
October 22, 2014 -- Updated 1205 GMT (2005 HKT)
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
October 20, 2014 -- Updated 1300 GMT (2100 HKT)
The world's response to Ebola is its own sort of tragedy, writes John Sutter
October 17, 2014 -- Updated 2033 GMT (0433 HKT)
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
October 18, 2014 -- Updated 1722 GMT (0122 HKT)
When you hear "trick or treat" this year, think "nudge," writes John Bare
October 18, 2014 -- Updated 0442 GMT (1242 HKT)
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
October 17, 2014 -- Updated 1345 GMT (2145 HKT)
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
October 16, 2014 -- Updated 2043 GMT (0443 HKT)
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
October 18, 2014 -- Updated 0858 GMT (1658 HKT)
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
October 17, 2014 -- Updated 1342 GMT (2142 HKT)
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
October 17, 2014 -- Updated 1221 GMT (2021 HKT)
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
October 16, 2014 -- Updated 2027 GMT (0427 HKT)
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
October 16, 2014 -- Updated 0407 GMT (1207 HKT)
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
October 15, 2014 -- Updated 1153 GMT (1953 HKT)
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
October 16, 2014 -- Updated 0429 GMT (1229 HKT)
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
October 20, 2014 -- Updated 1653 GMT (0053 HKT)
Paul Callan says the Ebola situation is pointing up the need for better leadership
October 15, 2014 -- Updated 2245 GMT (0645 HKT)
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
October 15, 2014 -- Updated 1700 GMT (0100 HKT)
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
October 15, 2014 -- Updated 2301 GMT (0701 HKT)
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
October 14, 2014 -- Updated 1744 GMT (0144 HKT)
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
October 18, 2014 -- Updated 1335 GMT (2135 HKT)
Stop thinking your job will make you happy.
October 15, 2014 -- Updated 0208 GMT (1008 HKT)
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
October 14, 2014 -- Updated 1125 GMT (1925 HKT)
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
October 13, 2014 -- Updated 1303 GMT (2103 HKT)
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
October 14, 2014 -- Updated 2004 GMT (0404 HKT)
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
October 13, 2014 -- Updated 1307 GMT (2107 HKT)
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
October 13, 2014 -- Updated 2250 GMT (0650 HKT)
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
October 11, 2014 -- Updated 1543 GMT (2343 HKT)
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT