The state of Texas’s decision not to issue a license plate that incorporates the Confederate battle flag violates the First Amendment, according to a divided panel of the United States Court of Appeals for the Fifth Circuit. The majority opinion by Judge Edward Prado concludes that Texas engaged in impermissible viewpoint discrimination by implicitly disfavoring the view that “the Confederate flag is a symbol of sacrifice, independence, and Southern heritage” and crediting the viewpoint that “the Confederate flag is an inflammatory symbol of hate and oppression.”

As a matter of law this is a genuinely difficult case, although for reasons unrelated to whether Texas engaged in viewpoint discrimination by refusing to print license plates that display a symbol used by racist, slaveholding traitors. As a general rule, the government is not allowed to discriminate among viewpoints when it regulates the speech of others, but it has wide discretion when it offers its own viewpoint — thus, the government can fund a campaign urging children not to do drugs without having to give equal time to supporters of illegal drug use. The most important, and the most challenging, legal question presented by this case is whether state-issued license plates are a form of private speech or a form of government speech.


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