The Confederate Flag On Trial

On March 23rd, the Supreme Court will hear a case regarding the Confederate flag- Walker vs. Sons of Confederate Veterans.  This case could have broad reaching First Amendment implications beyond Texas.  At issue is the presence of the Confederate flag on a state-issued license plate.

Texas, like most states, has a specialty license plate program where organizations can design their own license plates for an additional fee.  The Sons of Confederate Veterans, a recognized charitable organization, sought to have a license plate displaying their logo along with a Confederate flag.  After three administrative reviews, the Texas Department of Motor Vehicles rejected the design claiming that the depiction of the flag is a divisive issue and likely to offend some members of the public.  At issue is whether this is a permissible restriction on Free Speech or whether it is viewpoint discrimination.  The state argues that since the license plate is state-issued, it could be construed as a State-endorsed message and one they do not wish to convey.  Failing that argument, they said that a decision contrary to the state would open their Motor Vehicle Department to issuing other potentially more offensive license plates such as endorsing child abuse or animal cruelty.

Regarding the state-endorsement argument, there are several considerations.  First, the state has a program where any potential specialty license plate owner can offer a design to the state.  In other words, they are inviting the general public to essentially convey a personal message on a license plate.  And even though the license plate is state-issued, it is basically private speech.  If private speech, the state can place no restrictions on that speech.  The state counters that court precedence is in their favor.  A previously decided case prevented the Ku Klux Klan from “adopting a road” in Texas.  However, there is a world of difference between a road built and maintained by the state and a license plate on a privately owned car.  In the case of the road, it is conceivable that if a driver saw the sign they could reasonably believe that the state endorsed the Ku Klux Klan.

In the case of the car license plate, compare this with another incident from New York.  A private organization there- Children First- that promotes adoption designed a license plate depicting two crayon-drawn children in front of the sun with the words “Choose Life.”  New York rejected their design arguing that it would create road rage and potential violence against the obvious pro-life message.  Of course, nothing is preventing Planned Parenthood or any other organization from designing a license plate that says, for example, “You Have a Choice.”  The fact is that in neither case is this a state-endorsement of either message.

Also, there is a plethora of specialty license plates issued by the state to Texas drivers.  The SCV organization notes that there are specialty license plates for the University of Oklahoma and Louisiana State University.  Using the state’s “endorsement” argument, are we to believe the State of Texas is “endorsing” Oklahoma or LSU?  Are they endorsing fraternities or sororities that have specialty plates?

As for their second argument, this is simply the slippery slope argument run amok.  No one is denying the state the right to disallow plates with a patently offensive message like “Crush a Kitten Today” or “Have You Molested a Child Lately?”  That would be promoting an illegal act.  To the best of my knowledge, flying or displaying a Confederate flag is not an illegal act.  In fact, nine other states allow the Confederate flag on license plates where the Sons of Confederate Veterans have chapters.  And just as New York’s objections about possible violence and road rage have not resulted in a single instance of violence, there has not been a single act of violence or road rage against anyone whose car had the Confederate flag on their license plate in these other nine states.

Furthermore, the organization itself is dedicated to remembering the death and sacrifice of soldiers from the South who died in the Civil War.  To banish the Confederate flag from public viewing would be akin to denying a Civil War was fought, or that many Southerners perished in that war.  It would be relegating their deaths as moot.

This case has invited a disparate group of “friend of the Court” briefs in favor of the Sons of Confederate Veterans.  FIRE and the ACLU as well as the Attorney Generals of red and blue states are urging the Court to allow the license plate on the belief that it is private speech which the government is attempting to censor in a raw case of political correctness.  FIRE in particular believes that a ruling in favor of the State would embolden states to censor speech on college campuses.

To illustrate the absurdity of this case, on January 19th the State of Texas celebrates Confederate Heroes Day- an official state holiday.  This is a day set aside to commemorate the deaths of fallen Confederate soldiers.  If this is not a state-endorsement of the exact same reason the Sons of Confederate Veterans exists, then neither can depiction of a Confederate flag associated with the organization’s name on a license plate.

Obviously, there are ramifications beyond the borders of Texas.  A case is currently on hold out of North Carolina awaiting the decision in this one.  However, there is a difference in North Carolina.  There, the license plate reads “Choose Life” or something to that effect to the exclusion of any alternative option.  Hence, this is clearly a state endorsement of a viewpoint, but there is yet another difference.  In those cases, States are allowed general immunity from Free Speech concerns in that they could, through government action, endorse a viewpoint to the exclusion of opposing viewpoints.

In the end, if the State prevails in this case, it will be a sad day for the First Amendment.  The potentially few offended will have achieved the perfect heckler’s veto while hiding behind the skirt of “offensiveness” and possible hurt feelings.