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How Clarence Thomas made it possible for states to ban Confederate license plates

Libby Nelson is Vox's policy editor, leading coverage of how government action and inaction shape American life. Libby has more than a decade of policy journalism experience, including at Inside Higher Ed and Politico. She joined Vox in 2014.

Virginia will no longer offer Sons of Confederate Veterans plates.

Virginia will no longer offer Sons of Confederate Veterans plates. (Wayne Scarberry/Getty Images)

The latest Southern state to abandon the Confederate flag, more than 150 years after the Civil War, is Virginia, where Gov. Terry McAuliffe said he's going to take the flag off state-issued specialty license plates.

This is partly a result of the backlash against the Confederate battle flag that began when the flag at the South Carolina Capitol kept flying after nine African Americans were murdered at church in a mass shooting apparently motivated by white supremacy.

But it's also because the Supreme Court issued a 5-4 ruling on Friday that states could reject license plate designs that they deem offensive. In an unusual alignment, Justice Clarence Thomas joined with the court's liberal wing to form the majority. Thomas didn't write the opinion, so it's hard to say what his legal reasoning was, but he's forcefully opposed symbols of white supremacy from the bench before.

A license plate isn't a public forum, the Supreme Court majority ruled: It's a type of governmental speech. And state governments don't have to print plates with messages they don't want to be associated with.

Why the Supreme Court ruled states can decide what's on their license plates

Nine states, including Virginia, offer official specialty license plates supporting the Sons of Confederate Veterans that feature the Confederate battle flag. The others are Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Maryland, which was never in the Confederacy in the first place. (The Washington Post has images of what all the plates look like.)

The Sons of Confederate Veterans wanted Texas to be the 10th. Texas already had a dizzying array of specialty license plates — including advertisements for Re/Max realty and Dr. Pepper as well as plates with messages like "Fight terrorism" and "Don't tread on me." But the state motor vehicles board, which has the final say over license plate designs, turned down the Sons of Confederate Veterans when they applied to sponsor a license plate:

The Sons of Confederate Veterans' proposed license plate.

(US Supreme Court)

Many members of the public found the Confederate flag offensive as a symbolic representation of preserving slavery and promoting white supremacy. The board ruled that their concerns were reasonable.

The Sons of Confederate Veterans sued, arguing that the motor vehicles board had violated their right to freedom of speech by practicing "viewpoint discrimination." In a public forum, the government isn't allowed to decide who may and may not speak based on what they have to say.

The case went all the way to the Supreme Court, which ruled on Friday that license plates aren't a public forum for private speech — they're governmental speech. Putting a message on a license plate gives the impression that the state supports it, the majority wrote. And states are entitled to choose what messages they want to endorse.

"Texas offers plates celebrating the many educational institutions attended by its citizens. But it need not issue plates deriding schooling," Justice Stephen Breyer wrote for the majority. "Texas offers plates that pay tribute to the Texas citrus industry. But it need not issue plates praising Florida’s oranges as far better. And Texas offers plates that say 'Fight Terrorism.' But it need not issue plates promoting al Qaeda."

In the dissent, Justice Alito argued that by selling space on its license plates, Texas had created a limited public forum, and the idea that the state endorsed the messages on its plates was nonsensical. "If a car with a plate that says "Rather Be Golfing" passed by at 8:30 am on a Monday morning, would you think: 'This is the official policy of the State—better to golf than to work?'" he wrote. (Texas does, in fact, offer a "Rather Be Golfing" plate.)

The Supreme Court decision had incredible timing

The Supreme Court enabled states to get rid of Confederate flag license plates just as the tide of public opinion shifted dramatically against the flag.

The Confederate flag license plates had caused relatively little controversy in the nine states that already had them. When the ruling was issued Friday morning, the Confederate flag was still flying over South Carolina's Capitol, and national Republicans were mostly hedging over whether it should stay up.

But the outrage in the wake of the Charleston shootings — that a state whose black citizens had just been murdered was continuing to fly a flag representing white supremacy — led to politicians and businesses starting to distance themselves from the flag.

On Tuesday, Gov. Nikki Haley, a Republican, said South Carolina should take down its Confederate flag. Then Mississippi's speaker of the House said it was time to change his state's flag as well to eliminate the Confederate battle emblem. Walmart announced it would stop selling merchandise featuring the flag. (Meanwhile, flag sales on Amazon were soaring.)

McAuliffe tried to make clear in his statement that he wasn't jumping on a bandwagon: the Virginia legislature had tried to keep the Confederate flag off plates in 1999 when they created plates for the Sons of Confederate Veterans, but a federal appeals court required them to allow the group to use the emblem. But the Supreme Court ruling means that decision no longer applies.

McAuliffe doesn't just plan to redesign the plates. He said he will replace the ones already out there, so soon the Confederate flag won't appear to be officially endorsed by Virginia.

Tennessee might be next: its governor, Bill Haslam, who signed a bill permitting Sons of Confederate Veterans plates on motorcycles in 2012, said Tuesday that he'd be in favor of taking the flag off Tennessee license plates.

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