Inadmissible: Confederate Flag Plates

In 1996, when his practice was flush with medical malpractice plaintiff cases, Darrell Keith invested in a three-story, 17,000-square-foot office building on the west side of Fort Worth to house 25 lawyers and support staff. And nearly 20 years later, after a tort reform laws in Texas took away most of those med-mal clients, Keith has sold the building that sits on the bank of the Trinity River and will reopen the Keith Law Firm in downtown Fort Worth on July 21. The reason for the move is twofold, Keith said: His staff has decreased significantly, and he got a great offer on the building. Keith said he sold the building to the American Association of Professional Landmen, a 60-year-old organization that represents professionals who research and negotiate oil and gas leases—a booming business in Texas. “We no longer needed the large offices we needed in 1996. And the Landmen Association came along and made us an offer we couldn’t refuse for the entire building,” said Keith, who declined to disclose the price of the sale. “We made a business decision to sell the building and relocate to downtown Fort Worth to the 28th floor of the D.R. Horton Tower.” Keith said he’s excited about returning to the center of Cowtown. “I’ve daily enjoyed being in our own building, but we’re excited about going back to downtown Fort Worth in a great building,” Keith said. “And it’s in walking distance to the historic [Tarrant County] courthouse and the new civil courthouse, which is expected to be completed early next year.”

Confederate Flag Plates

On July 14, the Fifth Circuit raised eyebrows in what will likely be known from now on as the Confederate flag license plate case. In a 2-1 decision in Texas Division, Sons of Confederate Veterans v. Victor T. Vandergriff, the majority ruled that the Texas Department of Motor Vehicles engaged in “impermissible viewpoint discrimination” under the First Amendment when they rejected The Texas Sons of Confederate Veterans [Texas SCV] application for a specialty car license plate featuring the Confederate battle flag. Texas SCV is a nonprofit organization that works to preserve the memory and reputation of soldiers who fought for the Confederacy during the Civil War. But the board voted against their license plates because the Confederate battle flag they wanted to display is associated with organizations that direct hate toward minorities, noting that “public comments have shown that many members of the general public find the design offensive,” according to the decision. Some people also associate the flag with slavery and are offended by its history for those reasons. Texas SCV sued in federal court asserting violations of its rights under the First and Fourteenth Amendments, but the trial court found that the board’s rejection of the plates was a permissible “content-based” restriction on free speech rather than a “viewpoint-based limitation,” which is not permissible under the First Amendment. Texas SCV appealed to the Fifth Circuit, and the appellate court agreed with them that the rejection of the Confederate battle flag plate was a “viewpoint-based limitation.” “The government may not ‘selectively … shield the public from some kinds of speech on the ground that they are more offensive than others,’” wrote Judge Ed Prado in a majority opinion joined by Judge Jennifer Elrod. “That is precisely what the board did, however, when it rejected Texas SCV’s plate. Accordingly, we hold that the board impermissibly discriminated against Texas SCV’s viewpoint when it denied the specialty license plate.” Judge Jerry Smith dissented to the decision, writing that the board deserved a summary judgment ruling in its favor, though he agreed with much of the majority decision but the majority applied the wrong “reasonable observer test” legal standard in reaching its conclusion. Smith noted that the plates were designed by private actors and put their message on license plates issued by the state. “The only reason this case exists is because Texas lets drivers choose plates that were sometimes designed by private actors,” Smith wrote.

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