“The issue before the court is this: does the First Amendment require a state government to place the Confederate battle flag on customized, special license plates at the request of a nonprofit organization which has otherwise complied with state rules governing issuance of such plates?” Sparks wrote. He determined that the answer is no, not because specialty license plates constitute government speech, as the board claimed, but because the plates constitute a nonpublic forum. He further found that the content of the SCV license plates drove the board’s decision, rather than the group’s viewpoint.
“The SCV repeatedly argues the fact the Buffalo Soldiers plate was approved indicates SCV was subjected to viewpoint discrimination,” Sparks wrote in the 47-page order. “SCV speculates Native Americans would be offended by the Buffalo Soldiers plate, because of the role played by African-American troops in the frontier wars of the nineteenth century. However, the record does not support this assertion: in contrast to the chorus of negative public comments raised against the SCV’s plate, there appears to have been no significant objection to the Buffalo Soldiers plate, rendering SCV’s assertion the Buffalo Soldiers plate is equally derogatory at best purely speculative.”
Sparks noted that, unlike the SCV plates, the Buffalo Soldiers plates lack an “inflammatory symbol comparable to the Confederate battle flag.” The judge also noted that the group could turn to state lawmakers to get its license plates approved. “Although suggesting a petitioner for judicial relief should look to the legislative branch for assistance is usually the practical equivalent of there being no relief available, here the Texas Legislature can and frequently has approved a variety of plates — including controversial plates, such as ‘Choose Life’ — by direct legislative action,” Sparks states.
The order concludes: “It is a sad fact the Confederate battle flag has been co-opted by odious groups as a symbol of racism and white supremacy. There is no reason to doubt the SCV and its members are entirely heartfelt in their condemnation of this misuse. It is to be hoped the passage of time, and efforts such as the SCV’s resolution, will eventually remove a blight from the flag under which feats of great heroism and fortitude were accomplished. All the traditional avenues of public discourse are open to those who would fully redeem the battle flag. Nevertheless, the state of Texas has chosen to abstain from this debate, and the First Amendment does not require it to open up state-issued license plates as an additional forum in which to contest the flag’s meaning.”
I find the judge’s thoughts re: the flag’s symbolism to be very strange. How exactly do you “remove a blight” from a flag that was used between 1861- and 1865 to establish a nation built on slavery and later in the twentieth century as a visible symbol for the maintenance of the racial status quo? The Confederate flag doesn’t need to be “redeemed” from anything. What it deserves is a proper interpretation in a place that fosters serious reflection.