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Noah Feldman

Thomas's Vote Speaks Volumes in License Plate Case

Texas can ban Confederate battle flag from custom tags.
An usual split for these two.

An usual split for these two.

Photographer: Chip Somodevilla/Getty Images

When was the last time Justice Clarence Thomas provided the decisive fifth vote to the U.S. Supreme Court’s four liberals -- to decide against free speech? I can’t think of one, but that’s what happened Thursday in the court’s decision in Walker v. Sons of Confederate Veterans, better known as the Texas license plate case.

In an opinion written by Justice Stephen Breyer, the four liberals and Thomas held that Texas could bar the state chapter of the Sons of Confederate veterans from creating customized license plates under a process that authorizes some 350 plate configurations -- because the plates are government speech and so the First Amendment doesn’t apply. The court’s four other conservatives, including Justice Anthony Kennedy, probably the court’s most aggressive free speech absolutist, said that Texas was engaging in viewpoint discrimination.