Despite the fact the American Civil War ended some 150 years ago, the symbols of that conflict continue to be deeply controversial in the United States. No symbol is more controversial than the flag of the Confederate States of America, which has been used by some to represent white-supremacy and in the wake of Brown v Board of Education, protest against school desegregation. It was for this reason that the Texas Department of Motor Vehicles Board refused to allow the Sons of Confederate Veterans to manufacture license plates displaying the Confederate Flag. The Sons of Confederate Veterans argued that the board’s refusal violated their First Amendment Right to freedom of expression, prevailing before the Court of Appeals for the Fifth Circuit.

Crucial to the issue before the Fifth Circuit was whether curtailing the content of a license plate constituted ‘content-based regulation’ or ‘viewpoint discrimination’. Viewpoint discrimination is presumptively unconstitutional, as the Supreme Court in Rosenberger v Rector and Visitors of the University of Virginia characterized it as ‘favoring one speaker over another’ and targeting ‘particular views taken by speakers on a subject’. The Fifth Circuit agreed and stated that: ‘By rejecting the plate because it was offensive, the Board discriminated against Texas SCV’s view that the Confederate flag is a symbol of sacrifice, independence and Southern heritage’.

The Fifth Circuit court accepted that some members of the community may find the Confederate flag offensive, but held that the First Amendment was designed to protect against the curtailment of speech on this basis. The court suggested that a finding to the contrary would set a problematic precedent, as it would give the state free reign to restrict any speech that was perceived to be offensive.

In reaching the conclusion it did, the Fifth Circuit made an important assumption. Namely, that the reasonable observer would regard the message on a license plate to be that of the motorist and not that of the state. This is a crucial distinction and it is one that has deeply divided the various federal appeals courts. It is crucial because the Supreme Court held in Pleasant Grove City v Summum that if the state is acting as the speaker, then it has the right to pick whatever message it prefers and exclude all others. The Courts of Appeals for the Sixth Circuit (the ‘sole outlier’), in ACLU of Tennessee v Bredesen, has held that messages on a license plate are a form of government speech and the First Amendment does not interfere with that choice. Five other federal appeals courts have taken the opposite view, the Fifth Circuit amongst them.

It is into this fray that the Supreme Court has entered, as the Texas Department of Motor Vehicles Board has appealed the Fifth Circuit’s judgment. In its merits brief, the board placed emphasis on the point that license plates display government speech only and are therefore exempt from First Amendment scrutiny. The Supreme Court heard oral argument last week. The interventions of the nine Justices displayed a willingness to grapple with the fraught question of when free expression ceases and state regulation begins. This is question that has bedeviled the Supreme Court’s First Amendment jurisprudence for some time and it will be fascinating to see how it is resolved.