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Supreme Court Hears Texas Case Over Confederate Flag

Supreme Court Hears Texas Case Over Confederate Flag
March 24
14:40 2015

Confed FlagBy John Christian Hopkins

Flags often invoke a feeling of patriotism and pride in one’s heritage, but what if it also symbolized bigotry and horror to millions of other people?

That was the question argued before the U.S. Supreme Court Monday; a vigorous debate over what limits can be shackled to the freedom of speech promised in the first amendment of the Constitution.

Of course there are limits, as the court ruled decades ago that one cannot yell fire in a crowded movie theater.

The current case involves the issuance of license plates. Texas allows motorists to use specialty plates – if they pay an extra fee. Such plates contain support for pro-life, Austin-based Might Fine Burgers, “I’d Rather be Golfing” and even one praising Dr. Pepper soda.

But Texas officials balked when the Texas division of the Sons of Confederate Veterans came calling. The group designed a plate adorned with the stars and bars of the battle flag for the Confederate States of America.

The Supreme Court must decide where the line is between free speech and government censorship – and concerns that such a plate could incite violence.

The so-called “government speech doctrine” allows the government to engage in viewpoint discrimination in its own speech, but it does not allow such discrimination against private speech.

So, are license plate government speech, or individual speech? That is one of the issues the Supreme Court must grapple with.

“I actually do think this is hybrid speech,” Justice Sonia Sotomayor said. The plates represent the government and individual speaking at the same time, she said.

When it began issuing specialty plates, Texas created a forum for the expression of ideas and cannot pick and choose which ideas it supports, according to Attorney R. James George Jr., who argued on behalf of the Confederate veterans group.

If the court sides with Texas it will be endorsing government censorship, George added.

Nine other states allow drivers to display the controversial flag on their plates.

If a state is forced to approve the Confederate flag, where are the limits, wondered Justice Ruth Bader Ginsberg. Would it also have to allow plates with swastikas, Jihadist messages or something like “Bongs for Jesus,” Ginsberg asked.

The answer to each example would be “yes,” George said.

What if it was the vilest racial slur one could imagine, asked Justice Elena Kagan.

“Yes,” George replied. He told the court “speech that we hate is something that we should be proud to protect.”

Texas Solicitor General Scott Keller argued that the Lone Star State should not be forced to allow offensive speech.

Dr Pepper“Texas should not have to allow speech about al-Qaida or the Nazi Party simply because it offers a license plate propagating the message ‘Fight Terrorism’,” Keller said.

If Texas doesn’t want al-Qaida license plates, it should not have started allowing people to buy space on the plates to put on any message they want, Chief Justice John Roberts said.

Roberts and Justice Samuel Alito said the license plate design plan was only a ploy by the state to bring in more money. They said the wide range of messages allowed on plates show that the state’s motive is purely financial.

The specialty plates are big business in Texas, with nearly 450 different plates available bringing in $17.6 million in 2014. Nearly 900,000 of the state’s 19 million registered vehicles carry specialty plates.

Keller acknowledged that the program brings in money, but insisted the state’s concern was over being forced to put its stamp of approval on offensive plates. Texas wants to prevent “offensive and vulgar” speech, Keller said.

But, it’s not like Texas is unfriendly to the Confederacy; the state celebrates Confederate Heroes Day every January, has a Confederate display in the capitol’s rotunda and sells Confederate memorabilia in state gift shops.

But, each plate says “Texas,” and is owned by the state, not the individual, Keller argued. Car owners are free to express any message they want through bumper stickers or painting their vehicle, Keller added.

The justices seemed uneasy by the arguments offered by both sides.

For its part, Texas has rarely rejected a specialty plate request.

If the court rules in favor of the Sons of Confederate Veterans, the likely result would be Texas banning all specialty plates, Justice Anthony Kennedy suggested.

This argument was brought together some unlikely allies in defending the Confederate group, including the American Civil Liberties Union, libertarians, anti-abortion groups and Americans United for Separation of Church and State.

Eleven states have issued briefs supporting Texas because they feel that an adverse ruling against the state would call into question license plates that promote national or state pride.

States concerned about the appearance that it supports controversial messages could add a disclaimer to the plates, George suggested.

“Where is that going to fit on a license plate?” Justice Sonia Sotomayor wondered.

Ironically, on the same day the state motor vehicle board rejected the Confederate flag symbol, it approved a plate for the “Buffalo Soldiers,” the army’s first black units following the Civil War.

The high court is expected to issue a ruling by late June.

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