Today the U.S. Supreme Court is slated to hear the case looking at whether Texas officials violated First Amendment rights over a proposed Confederate flag specialty license plate. The case, Walker v. Texas Division, Sons of Confederate Veterans, Inc., is a fascinating one because, despite what you'd expect from Texas, the poster child state of all things conservative, the state government has taken a firm stance against allowing the Confederate flag on Texas license plates.
This all started about five years ago when the Sons of Confederate Veterans applied for a specialty license plate showing the Confederate flag along with the name of the group and the year it was established, 1896. Now, you can get a specialty license plate for just about anything, including wild turkeys and Dr Pepper, so it's possible that the Sons of Confederate Veterans (an ardent group that tends to show up at various vaguely Civil War-associated events dressed in thick and fairly historically accurate gray wool Confederate uniforms) never considered that anyone would have a problem with this particular plate.
However, the board for the Texas Department of Motor Vehicles balked at approving the plate. After several votes, the board denied the application, saying that some people would interpret the Confederate symbol in negative and offensive ways (i.e. they might just conflate the Stars and Bars with slavery, the Old South, racism and the KKK, for starters and then tie all that in with Texas, an association the state isn't keen to encourage.)
A district court agreed with the board but the case got kicked up to the U.S. Fifth Circuit Court of Appeals. A panel of three judges from that notoriously right-leaning court issued their ruling last July. They voted 2-1 siding with the Sons of Confederate Veterans, finding that the state was wrong not to approve the license plate. "By rejecting the plate because it was offensive, the board discriminated against Texas SCV's view that the Confederate flag is a symbol of sacrifice, independence and Southern heritage," Judge Edward Prado stated in the majority opinion. He went on to conclude that this rejection thus could be construed as confirmation that "the Confederate flag is an inflammatory symbol of hate and oppression."
Then-Attorney General and now Gov. Greg Abbott argued against the decision in a brief filed on behalf of the state. "After this ruling, it is not apparent how the state could exclude profanity, sacrilege or overt racism from its specialty license plates," Abbott wrote in his brief.
Now that the case is actually going before the Supremes, Texas is taking an interesting stance to justify denying the plate. Namely, in a brief filed with the high court, Texas is arguing that the state can't be forced to issue the license plate since to do so would violate -- and this is where it gets interesting -- the state's right to freedom of speech. "The Sons of Confederate Veterans have every right to decorate their cars with bumper stickers or placards that display the confederate battle flag. But they cannot commandeer the State into promoting the confederate battle flag on a state-issued license plate," the state reasoning goes, according to the brief.
Intriguingly, especially to those who tend to view the Confederate flag from a more historic or sentimental angle (and such people exist because again we've seen them marching around at noon in the middle of July acting, proudly carrying some version of the flag while the wives stand around, equally impressive and seemingly dedicated, in black silk dresses and layers of petticoats and hoopskirts) the state argues that the Confederate flag would act as a sort of gateway drug to offensive license plate signs. If this license plate is approved the state will be wading through requests for license plates with Swastikas, pro-Al Qaeda or just old fashioned basic sacrilege and who knows what else past that. (Plates in favor of abortion andsame-sex marriage, perhaps? There have been court battles in other states on both issues.)
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Of course, that's not how the Sons of Confederate Vets see it, according to their brief filed with the court. "People and organizations who want to have a specialty plate create a proposed plate and request approval of the design," the SCV's brief states. "A committee of the DMV approves the design, but people who want to display the design on their vehicle choose the plate, pay the extra cost, and normally install them on their vehicle. These people then publish the message when they drive their vehicle in public." Their argument is that since the plates have to be actively purchased said plates protected by personal freedom of speech, their brief argues.
If Texas loses that means that the state will have to issue plates with a flag that many -- particularly those who don't get really into the whole "glorious cause" bit of Confederate history preferring to focus on, you know, the slavery, the subsequent rise of the KKK, the lynchings, Jim Crow laws and the Civil Rights movement which also hold ties with the Stars and Bars-- still find to be a symbol of racism and an incredibly dark time in our history.
It's almost impossible to guess how the Nine will rule on most cases like this, but depending on how narrowly the court rules it could be a decision with some fascinating implications either way. Should the Supremes find that personal freedom of speech trumps the state's freedom of speech, there will still be the question of whether a Confederate flag license plate should be protected. On the one hand, the Confederate flag is arguably not the best way to exercise freedom of speech. On the other hand, freedom of speech is supposed to be guaranteed in this country, even if other people find that speech offensive, and perhaps especially when it's offensive.
That right is what the United States is supposed to be about -- disliking what someone says but defending to the death their right to say it, to paraphrase Voltaire. Or as famed Supreme Court Justice Oliver Wendell Holmes Jr. once put it: "If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate." The Supreme Court often errs on the side of caution when it comes to free speech. The Supremes even went with protecting that freedom even with the controversial Westboro Baptist Church decision a few years ago, and it's very possible they'll go that way again. Either way, their decision won't come out until summer.