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Is a Confederate Battle Flag Displayed on a License Plate Free Speech?

Once again, the Confederate battle flag is the center of controversy as the Supreme Court is set to hear arguments in Walker v. Sons of Confederate Veterans, a case involving the display of the flag on a specialty license plate in Texas.

The question facing the court is more complex than it would originally appear: is the "speech" that the flag represents a matter of individual freedom or, since the license plate is issued by the state, is it a question of government speech, where Texas can pick and choose which sentiments and issues it supports?

The case is important because other issues that private citizens wish to highlight on their license plates -- abortion, war and peace, minority rights -- can also be rejected if the Supreme Court rules in favor of the state.

Bloomberg reports:

The case goes back to 2009, when the Texas branch of the Sons of Confederate Veterans, which honors soldiers who fought for the Confederacy in the Civil War, submitted a design proposal for a specialty license plate to the Texas Department of Motor Vehicles that included a Confederate flag. The DMV board that voted on the proposals fielded angry public comments and twice rejected the plate as an offensive celebration of slavery, according to the Supreme Court-focused news site SCOTUSblog.

The SCV sued, saying the DMV is violating the free speech rights of drivers who would select the license plate. Texas countered that license plates are government property on which the government can decide its own message. (The First Amendment guarantees that the government won't abridge individuals' right to free speech, but the government is allowed to police its own "speech.")

Texas—which does celebrate an annual Confederate Heroes Day—asserted in a case brief that it "is fully within its rights to exclude swastikas, sacrilege, and overt racism from state-issued license plates 14 that bear the State's name and imprimatur."

In its own brief, the SCV shot back that having the annual holiday shows that "The State apparently does not believe that the 'message' of the Confederate flag is offensive to the public, or, if it is offensive, the State certainly does not shy away from its expression because of such offense."

The case has attracted some unusual bedfellows, with the American Civil Liberties Union, pro-life groups, and even the satirist P.J. O'Rourke filing briefs in support of the SCV.

The AP said Texas offers 350 varieties of specialty plates (including ones devoted to restaurants, the Boy Scouts, and blood donations) that brought in $17.6 million in revenue last year. The state does offer license plates commemorating "Buffalo soldiers"—black regiments that fought Native Americans in the 19th century.

"There are a lot of competing racial and ethnic concerns, and Texas doesn't necessarily handle them any way but awkwardly sometimes," Lynne Rambo, a professor at the Texas A&M University School of Law in Fort Worth, told the AP.

Five federal appeals courts have ruled in favor of the non-profit SCV, according SCOTUSblog, including, most recently, the U.S. Court of Appeals for the Fifth Circuit.

The battle flag of the Confederacy (actually, it's one of several battle flags used by southern armies during the war) is perhaps the most misunderstood -- usually deliberately so -- piece of Americana there is. It is not the national flag of the Confederacy, which you can see here. So the question becomes, what is it?

If we are going to penalize southern soldiers and think awful things about them because they fought and died under that flag, then we might as well ban Old Glory as well. Historian James McPherson estimates that no more than 20% of union regiments were abolitionist regiments formed expressly to free the slaves, or regiments with abolitionist sympathizers. Most northern working men opposed freeing the slaves, fearing they would head north and take their jobs.  And northern whites almost universally opposed giving blacks the right to vote, to be educated in their schools, and to worship at their churches.

The fact is, almost all of America had the kind of casual, racist attitudes back then that modern-day opponents of the battle flag appear to ascribe to southerners only. So why pick on the battle flag?

It's sad but true that the battle flag was incorporated into the flags of several southern states during the civil rights era not to honor southern soldiers, but to signify opposition to federal interference in what they considered states' rights. In that sense, the anti-battle flag advocates have a point. It was used as a symbol of oppression and opposition to equal rights which has no place in modern America.

The flag is also employed by the Klan and many hate groups across the country. But as an expression of free speech, should it be allowed on license plates?

Allowing Texas to ban the battle flag from license plates would open the door to banning other, more overtly political speech. Pro- and anti-abortion messages could be banned depending on who is in power. "Drill, baby, drill" could be banned by a liberal administration that opposes fossil fuels. Giving the state the power to regulate free expression is a slippery slope that the Supreme Court will, hopefully, prevent us sliding down.