Posts Tagged ‘Confederate flag’

LAWRENCEVILLE, Va. — Attorneys for The Rutherford Institute have filed a petition with a Virginia Circuit Court challenging an order of the state Department of Motor Vehicles (DMV) cancelling, revoking and/or demanding the return of specialty commemorative license plates issued to the Sons of Confederate Veterans (SCV) bearing the Confederate battle flag on the grounds that such a recall is unauthorized by Virginia law and beyond the power of the DMV. The DMV’s order comes in the wake of a U.S. Supreme Court decision holding that states issuing specialty license plates may engage in viewpoint discrimination when granting applications for specialty license plate designs. However, in the petition challenging the DMV’s September 2015 order, Rutherford Institute attorneys assert the order is unlawful and does not comply with Virginia statutes relating to the cancellation and recall of license plates.

“No matter what the U.S. Supreme Court might say about the matter, the First Amendment is unmistakably clear about the fact that the government has no right to dictate how we should act, what we should believe or what we should say, nor should it be in the business of determining what is or is not offensive, whether such expression appears on a license plate, a T-shirt, or a protest sign,” said John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People.

Under Virginia law, specialty Virginia license plates bearing an organization’s logo and motto in addition to letters and numbers as found on other Virginia license plates may be issued to members and supporters of various organizations or groups. In 1999, The Rutherford Institute and the Sons of Confederate Veterans (SCV), a non-profit organization dedicated to preserving the history and legacy of citizen-soldiers who fought for the Confederacy in the Civil War, brought a lawsuit against Virginia and the DMV challenging its refusal to include the logo of the SCV which includes the Confederate battle flag. A federal district court ruled in 2001 that the State’s refusal to include the Confederate battle flag on SCV specialty plates constituted viewpoint discrimination in violation of the First Amendment. This ruling was upheld by the Fourth Circuit Court of Appeals in 2002.

Shortly thereafter, the DMV began issuing SCV specialty license plates which included a display of the Confederate battle flag. However, in June 2015, the U.S. Supreme Court ruled in Walker v. Tex. Div. of SCV that specialty license plates do not represent the speech of the individual motorists who purchase them, and that Texas could refuse to issue plates with the SCV’s Confederate battle flag logo. Following the ruling, Virginia’s DMV was granted permission by a federal court to be relieved from the orders entered in 2001 and 2002 respecting the SCV specialty plates. Soon after, the DMV notified SCV members that the previously-issued plates had been cancelled and were being recalled. In legal papers filed with the Circuit Court for Brunswick County, on behalf of Leonard Tracy Clary, Rutherford Institute attorneys challenge the DMV’s decision to cancel, revoke and/or demand the return of the SCV license plates, while ordering that recipients display new plates that do not bear the true logo of the SCV, which includes the Confederate battle flag.

Attorney Fred D. Taylor of Bush & Taylor, P.C., in Suffolk, Va., is assisting The Rutherford Institute in representing Clary and challenging the DMV order.

 

WASHINGTON, D.C. — Delivering a sharp blow to the First Amendment, a 5-4 U.S. Supreme Court has declared specialty license plates to be “government speech” and not private speech and, thus, subject to censorship by government officials. The Rutherford Institute warns that the ruling could set a dangerous precedent, paving the way for the government to censor private speech whenever it occurs in a public or government forum. At issue in Walker v. Texas Division, Sons of Confederate Veterans, Inc., was whether Texas officials violated the First Amendment when they denied a Civil War heritage group’s request for a specialty plate bearing the Confederate battle flag, allegedly because the Department of Motor Vehicles was concerned some people would be offended by the Confederate flag.

In weighing in on the case, The Rutherford Institute had urged the Court to affirm that specialty license plates—which run the gamut in Texas from college alumni associations and fast food chains to real estate brokers and Dr. Pepper—are private speech which may not be censored on the basis of viewpoint. Institute attorneys also argued that by inviting groups to engage in private speech and contribute to the marketplace of ideas, the government surrendered the right to treat the license plate as “government speech” subject to any censorship the state deems appropriate.

“This ruling sanctions total government censorship. We are witnessing an elitist philosophy at play, one shared by both the extreme left and the extreme right, which aims to stifle all expression that doesn’t fit within their parameters of what they consider to be ‘acceptable’ speech, ” said John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “There are all kinds of labels put on such speech: it’s been called politically incorrect speech, hate speech, offensive speech, and so on, but really, the message being conveyed is that you don’t have a right to express yourself if certain people don’t like or agree with what you are saying.”

Like many states, Texas allows motorists to use specialty license plates, which display a message or symbol supporting a cause or nonprofit group. By law, any nonprofit organization is allowed to apply for a specialty plate by submitting a design to be approved by the Department of Motor Vehicles. In 2009, Texas SCV, a nonprofit organization that works to preserve the memory and reputation of soldiers who fought for the Confederacy during the Civil War, applied for a specialty license plate and submitted a design that featured the SCV logo, which is a Confederate battle flag framed on all four sides by the words “Sons of Confederate Veterans 1896.” When the matter reached the DMV, it asked for public comment on approval of the application, and in response received comments both supporting and against the application. Eventually, the DMV voted to deny the application, explaining that some of the public comments found the Confederate flag portion of the propose plate offensive. The SCV then filed suit, alleging that the denial of the application constituted viewpoint discrimination in violation of the First Amendment. A district court subsequently ruled that the state did not violate the Constitution. On appeal, however, the Court of Appeals for the Fifth Circuit reversed that decision, holding that the specialty license plates are private speech protected by the First Amendment. Moreover, the Fifth Circuit ruled that the DMV unconstitutionally discriminated against the SCV by classifying as offensive its view that the Confederate flag is a symbol of sacrifice, independence, and Southern heritage.

Affiliate attorneys D. Alicia Hickok and Todd N. Hutchinson of Drinker, Biddle & Reath LLP, in Philadelphia, assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.