Justice Thomas sides with liberals to ban Confederate flag license plates in Texas

In a surprise move, conservative Supreme Court Justice Clarence Thomas sided with the four liberal justices to ban a Texas group from paying to have a custom Confederate flag license plate.

The case raised the issue of how states can allow or reject politically divisive messages on license plates without violating free speech rights.

However, the Supreme Court ruled that the license plates constituted the speech of the government, not citizens.

"When government speaks, it is not barred by the Free Speech clause [of the Constitution] from determining the content of what it says," a summary of the opinion by Justice Stephen Breyer stated.

That summary added, "The state exercises final authority over messages that may be conveyed by its specialty plates, it takes ownership of each specialty plate design, and it has traditionally used its plates for government speech."

The Texas division of the Sons of Confederate Veterans said its members' free speech rights were violated when the state, which has a program that allows groups to suggest messages to be used on specially designed plates, declined to approve the plate.

The proposed design featured a Confederate battle flag surrounded by the words "Sons of Confederate Veterans 1896." The flag, synonymous with the states that fought to secede from the United States in the U.S. Civil War, is a blue cross inlaid with white stars over a red background.

In rejecting the proposal, the state said it had received public comments that suggested "many members of the general public find the design offensive."

The legal issue is whether messages on state-issued license plates represent speech by the government or an endorsement of a private message. The latter constitutes "viewpoint discrimination" and is a violation of the First Amendment of the U.S. Constitution's guarantee of freedom of speech.

As Bloomberg's Kimberly Robinson points out, in oral arguments, the Texas Solicitor General who argued the case said that if the state did not discriminate based on speech, Texas could be forced to allow license plates with swastikas and other hateful insignia.

The New Orleans-based 5th U.S. Circuit Court of Appeals said Texas officials did not have grounds to reject the Confederate plate.