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Texas acted legally when it refused to issue a license plate depicting the Confederate battle flag, the U.S. Supreme Court ruled in a decision that means dozens of states won’t have to open up their specialty-tag programs.

Justice Clarence Thomas, the only black justice, joined the court’s liberal wing in a five-member majority. The court said the Constitution’s free speech clause doesn’t require Texas to grant a request from the Sons of Confederate Veterans, even though the state issues more than 400 other specialty plates.

The case had threatened to force states to offer plates to new, controversial causes or to abolish the money-making programs altogether.

Writing for the court, Justice Stephen Breyer said license plates qualify as government speech, giving officials broad power to pick and choose which messages to allow.

“As a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position,” Breyer wrote.

The confederate veterans group argued that states can’t favor one viewpoint over another in choosing which license-plate proposals to approve.

In dissent, Justice Samuel Alito said Texas had engaged in “blatant viewpoint discrimination.” Chief Justice John Roberts and Justices Anthony Kennedy and Antonin Scalia joined Alito in dissent.

Private Speech

“The court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing,” Alito wrote.

The case marked a rare occasion in which Thomas split from his four fellow Republican appointees to provide a pivotal vote. He joined Breyer’s opinion without offering any separate comments.

It’s not the first time that Thomas rejected First Amendment arguments on racially charged issues. In 2003, he said that states can ban cross-burning, writing that “those who hate cannot terrorize and intimidate to make their point.”

Texas’s specialty plates include tags that say “Stop Child Abuse,” “God Bless Texas” and “Mighty Fine Burgers.” The state also offers plates for universities, fraternities and sororities, the Boy Scouts, Mothers Against Drunk Driving and Dr. Pepper.

Revenue Source

The state has a variety of avenues for issuing new plates, with some authorized by the state legislature, some proposed by private parties and some designed by a private company. The Texas Department of Motor Vehicles Board approves each design before it is issued to the public.

Drivers who want a special plate pay an extra fee, with the money going in part to state agencies and in part to charitable and nonprofit groups.

The disputed plate design consisted of a battle flag surrounded by the words “Sons of Confederate Veterans 1896.” The Texas board said many members of the public found the design offensive.

The ruling “confirms that citizens cannot compel the government to speak, just as the government cannot compel citizens to speak,” Texas Attorney General Ken Paxton said in a statement. “There remains many other ways for motorists to express their views on their vehicles.”

The same issue has arisen in the context of the abortion debate. The high court has deferred action on a pending appeal that challenges North Carolina’s refusal to issue abortion-rights license plates while distributing “Choose Life” tags.

The case is Walker v. Texas Division, Sons of Confederate Veterans, 14-144.

(Updates to add details on Thomas vote starting in ninth paragraph.)