The Confederate flag represents racial oppression to many. Yet to others, it is a mere relic of Southern history. This week, the U.S. Supreme Court heard arguments to decide whether this symbol of the old Confederacy should be allowed on official Texas license plates.
In the case of Walker v. Sons of Confederate Veterans, Inc, the Confederate Veterans are appealing a decision by Texas to reject their request to have an official license plate bearing the Confederate flag. Currently, Texas motorists pay an extra $30 for the specialty plate.
The American Civil Liberties Union (ACLU) has joined the Sons of Confederate Veterans' fight. Nadine Strossen, New York Law School professor and former ACLU president, advocated on behalf of the Confederate flag on the grounds that Texas' refusal to allow the specialty plate amounts to censorship—even while admitting the flag is offensive to many people, especially African-Americans.
Texas defended its original decision, saying the state “is fully within its rights to exclude swastikas, sacrilege and overt racism from state-issued license plates that bear the state's name and imprimatur.”
“States that issue 'Fight Terrorism' specialty plates are not required to offer specialty plates with messages that praise terrorism,” the Texas brief said, noting that drivers can use bumper stickers to express their ideas or beliefs.
Texas Solicitor General Scott Keller said the state has the power to decide whether language or symbols are offensive, and what can be placed on official state platforms such as a license plate. License plates are “mini-billboards,” and an official state license plate is expressing the views of the individual as well as Texas, he said.
The state's governor, Rick Perry, believes the flag symbol is divisive. “We don't need to be scraping old wounds,” he said.
Nine other states have confederate flag options for drivers:Maryland, Mississippi, Georgia, North Carolina, Alabama, Louisiana, Tennessee, Virginia, and South Carolina.
In South Carolina, the Confederate design is incorporated into the state flag, which flies above the capitol.
Texas complains that if it cannot control its specialty plates,then license plates could contain racial slurs, Jihad, or other words that incite violence.
Ben Jones, a national spokesperson for the 30,000-member Sons of Confederate Veterans, calls Texas' stance hypocritical. The Confederate brief goes on to note that Texas has placed the Confederate flag on dozens of state-sanctioned tourist items,and miniature flags can even be bought in the Texas capitol gift shop. Moreover, Texas holds a Confederate Heroes Day celebration.
Jones, who played Cooter Davenport on the “Dukes of Hazzard” television show, refutes the notion that his organization is racist. Jones said that the Sons of Confederate Veterans include “Black members, Hispanic members, Jewish members and Native members.”
R. James George, Jr., who is representing the organization before the Court, argued that the First Amendment required approval of all messages,no matter how offensive to some. He added that Texas endorses a commemoration in June for the abolition of slavery called Juneteenth.
Free speech takes many forms.
The Supreme Court, in its 1989 ruling on Texas v Johnson, agreed that a man who burned the American flag was expressing his political beliefs, and thus his act was protected as freedom of expression.
Iowa high school students who wore black armbands to protest the Vietnam War were protected under the First Amendment, as well, according to the 1969 Supreme Court decision, Tinker v. Des Moines Independent Community School District.
So, speech need not be spoken or written to be protected. Nor must speech be popular. However, in this case, it is not clear exactly what the flag is meant to communicate.
The Court seemed unsure about how to balance the issues raised by both sides with the current developments in communication.
Justices Sonia Sotomayor and Elena Kagan both remarked, “this is a new world” for free speech.
But the Confederate flag, like the swastika of Nazi Germany, is not only a relic of history; it is a symbol of racial division and terrorism.
Earlier this month I stood at the foot of the Edmund Pettus Bridge in Lowndes County, Alabama, where 50 years ago peaceful demonstrators were beaten savagely for trying to exercise their right to vote.
The Confederate flag was prominently in evidence through that tragic period.
History has not faded enough to erase the horror it symbolizes.
Gloria J. Browne-Marshall is an Associate Professor of Constitutional Law at John Jay College of Criminal Justice. An earlier version of this essay was published by the African-American News & Information Consortium) (AANIC). She welcomes comments from readers.