DANVILLE, Va. — A federal judge ruled Friday that Virginia can stop issuing specialty license plates that show the Confederate flag, following a recent Supreme Court decision that said such a ban does not violate the First Amendment.
U.S. District Judge Jackson Kiser said he will issue a written order to address whether the nearly 1,700 Confederate license plates in use in Virginia may be recalled by the state.
Gov. Terry McAuliffe (D) ordered the removal of the Confederate flag’s image from the state-sponsored license plates in June, calling it “unnecessarily divisive and hurtful.” He argued that the Supreme Court ruling had opened the door for him to make the change, despite a 14-year-old ruling by a lower court that Virginia could not prohibit the use of the flag on license plates.
But McAuliffe’s decision was opposed by the Sons of Confederate Veterans, which sued the state in 1999 after the General Assembly voted to prohibit the group’s Confederate flag logo from appearing on specialty plates.
In the federal courthouse here Friday, Deputy Attorney General Rhodes B. Ritenour argued that since specialty license plate designs are approved by the Virginia legislature and then signed into law by the governor, they are a form of government speech, which Virginia has the right to regulate.
“It’s critically important to point out that the state gives the General Assembly and the governor the first and final word on approval,” Ritenour said during the modestly attended hearing, which took place in the small Virginia town that served as the Confederacy’s last capital during the Civil War.
“The relief we seek is something that the Supreme Court said we should have,” Ritenour said.
An attorney for the Sons of Confederate Veterans argued that the Supreme Court ruling should not apply to Virginia because the state Department of Motor Vehicles does not routinely exercise editorial control over the content of specialty license plates in the same way that a nine-member panel does in Texas, where the Supreme Court case originated.
That makes the specialty license plates a form of independent free speech and not government speech, argued attorney Kirk D. Lyons, of the Southern Legal Resource Center in North Carolina.
“This is a case of apples and oranges,” Lyons said. “In Texas, they can reject a license plate because of its offensiveness; that doesn’t exist in Virginia.”
Lyons said the Sons of Confederate Veterans is likely to appeal Kiser’s decision.
Virginia has issued 1,677 specialty license plates to the state chapter of the Sons of Confederate Veterans. Ritenour said during the hearing that the DMV has begun an internal process to work with the Sons of Confederate Veterans to come up with an alternative license plate design.
McAuliffe spokesman Brian Coy said the governor is “pleased that we can take another step forward in getting this hurtful and divisive symbol off of Virginia’s license plates.”
The June shooting deaths of nine people at an African American church in Charleston, S.C. — allegedly by a white supremacist who was photographed with the Confederate flag — has focused new attention on the flag and what it represents.
A Quinnipiac University poll published earlier this week showed that Virginians are split over the issue. The poll found that 46 percent of voters say the flag should be taken off specialty plates, and 45 percent say it should stay.
Kiser — the judge who presided over Friday’s hearing — also heard the 1999 lawsuit, and found for the Sons of Confederate Veterans. The U.S. Court of Appeals for the 4th Circuit upheld that decision.
But Kiser said Friday that the Supreme Court decision nullified his earlier injunction.
“How could the state of Virginia speak any more loudly than through passing a special piece of legislation saying that this can or cannot appear on a specialty license plate?” he asked at one point, in reference to the General Assembly’s earlier effort to prohibit the Confederate flag license plates. “It is on the books, and it has to be honored, doesn’t it?”
Kiser expressed uncertainty over whether the state should recall existing license plates, and said he would address that issue in a written order.
Even so, flag opponents who came to the courtroom for the hearing called the ruling a victory. “It is a courageous stand,” said the Rev. William Avon Keen, president of the Virginia chapter of the Southern Christian Leadership Conference.
Keen called on the Sons of Confederate Veterans to redesign the group’s logo “to come into unity with everybody else in the U.S. who see that the Confederate flag is being used as a symbol of hate.” He said he would like to see the Confederate flag removed from all public displays.
B. Frank Earnest, who is listed by the Sons of Confederate Veterans as commander of its Northern Virginia Army, called the ruling an infringement of constitutional rights.
“It’s an individual statement,” Earnest said about the license plates. “And when you lose your ability to make an individual statement, everybody loses.”