Freedom of Speech and the Confederate Flag

While I am leading a Civil War battlefield tour this coming week for thirteen students another school group will visit Washington, D.C. to observe the Supreme Court in action. As many of you know beginning on Monday morning the court will consider the case of Walker vs. Sons of Confederate Veterans. The case essentially turns on whether the state of Texas has the right to control the messages on its vanity license plates. The SCV plate includes a Confederate flag.

I hope and expect that the court will rule in favor of free speech. Perhaps such a ruling will result in states doing away with vanity plates altogether to avoid these situations. The case makes for strange bedfellows as I find myself largely in agreement with H.K. Edgerton, though I would not be surprised to learn that he is not the author of this editorial.

Having read a few postings on the Confederate heritage pages I want to make one thing clear. A ruling in favor of the SCV is not a victory for Confederate heritage or for individuals who consider themselves to be still fighting their ancestor’s war.

Regardless of how the court rules, it will be a VICTORY FOR OUR CONSTITUTION AND THE RULE OF LAW.

34 comments… add one
  • Lyle Smith Mar 28, 2015 @ 12:40


    Just an fyi… these license plates are not vanity plates, but specialty plates. There is a difference. Vanity plates are plates where the vehicle owner chooses their own personal license plate numbers and letters. A specialty plate is s plate that has a different image from the regular state issued license plate, usually used by states or organizations to raise money for the government or an organization.

    Looking forward to the Supreme Court telling Texas Republicans where they can put their bigotry. 😉

  • Pat Young Mar 27, 2015 @ 17:34

    From the argument:

    JUSTICE KENNEDY: Your position is that if you prevail, a license plate can have a racial slur.
    That’s your position?

    MR. GEORGE [SCV Attorney]: Yes.

    • Ken Noe Mar 28, 2015 @ 3:06

      Justice Ginsburg: “Suppose someone wants a specialty plate with a swastika or the word ‘jihad,’ That’s OK, too?”

      George: “Yes.”

  • Chris Neudorf Mar 26, 2015 @ 5:12

    Hi everyone! Long time reader, first time commentor.

    I usually just read Kevin’s articles and the fantastic comment section on this blog. In this case however, I felt the need to make a brief comment.

    I’m not sure I agree with Kevin’s argument that the Rebel flag should be allowed on the licence plates based on the First Amendment.

    My perspective is based on my reading of the government’s relationship to the Amendment and the nature of the Rebel flag. I believe that individuals are entitled to espouse whatever they wish, no matter how vitriolic, and fly the Confederate flag or whatever flag they wish (so long as they do not advocate violence). These are entitlements enjoyed by the people, not the government. The government is the protector and enforcer of the Constitution, not its beneficiary. I believe that when the government selects ideas or symbols to represent it, then the government effectively endorses the meaning of those symbols and ideas. In my opinion this can endanger the Constitution. For example, when the state of Oklahoma attempted to place the Ten Commandments in front of the state court in Oklahoma city, they were endorsing Christianity above other faiths and non-faiths and therefore in violation of the First Amendment. Individual people are free to proclaim and believe whatever they wish, the government is not. The government must not take any action which threatens its ability to objectively defend and enforce the Constitution.

    The Confederate flag is a symbol of treason against the Republic of the United States. As everyone here knows, the Confederate war effort was directed at overthrowing the Federal authority in the Southern States, establishing a separate slave empire, and setting the dangerous precedent that the Federal authority was powerless to maintain the nation, and by extension the Constitution. Although the First Amendment should and does protect the individual’s right to proclaim and endorse treason (so long as they do not act on it), no state government can make that endorsement. Each licence plate is effectively a state document. To place to the Confederate flag on a state issued document is, I believe, an endorsement of that flag and what it represents. Therefore the state government is endorsing and legitimizing treason against the Federal authority.

    This is, for the record, why I also believe that it ought to be illegal for state governments to fly any version of the Confederate Flag. I have no problem with individuals doing so, but for a state government to do so is for a state government to endorse treason against the government of the United States and its Constitution.

    I do not wish to overstate this of course. Obviously if the SCV is allowed to place the Confederate Battle Standard on their license plates Texas will not secede from the Union lol. I see this more as a matter of principle.

    Looking forward to the future posts,


  • Patrick Jennings Mar 24, 2015 @ 3:34

    I am interested in this debate from the aspect of history. The question is simple: Would this be a better country if we tried to expunge all aspects and memory of the Confederacy from our national memory by ignoring it and shutting it away?

    • Jerry McKenzie Mar 25, 2015 @ 7:22

      No. You’ve got to take the good along with the bad. Leaving out the bad leaves the story/history half told.

  • Pat Young Mar 23, 2015 @ 9:40

    I agree with most of you that states should not have “specialty license plates” as they are often called. I also don’t like banning certain plates while allowing others.

    Most states reject vanity license plates that have “offensive language” in them. These content restrictions have generally been upheld. I am not sure why a single Floridian with the plate GR8 H8ER is a threat to the public. But if states are allowed to control messages on their property in this way, it would seem that they may be able to control more symbolic forms of speech on the plates.

  • Jerry McKenzie Mar 23, 2015 @ 7:46

    Seems to me Texas would have a stronger case if they had a plate for the Sons of Union Veterans (which I don’t think they do — web searches turned up nothing even at the TX DMV).

  • Matt McKeon Mar 23, 2015 @ 6:45

    A better analogy is when public libraries offer meeting rooms for speakers and events, or a display case for rotating exhibits by members of the public. There being some ugly members of the public. Its protected speech.

  • Ross Hetrick Mar 22, 2015 @ 6:32

    It is interesting that these neo-Confederates fight for their freedom of speech when their beloved South vigorously suppressed the abolitionist press.

    • Jimmy Dick Mar 22, 2015 @ 10:52

      In order for them to admit that fact they would have to admit that the southern states were violating the rights of their citizens. That would bring into question the issue of state’s rights and also the issue of reconstruction. Therefore they just conveniently ignore the parts of the past that do not fit in with their ideology.

      Basically they have selective learning disorder.

  • Pat Young Mar 21, 2015 @ 17:23

    Kevin, do you believe that If a municipality erected a monument on public property commemorating emancipation, that I have a Constitutional right to erect a Confederate monument at the same spot?

    • Kevin Levin Mar 22, 2015 @ 1:19

      Good question. Can we change it and imagine monuments erected to more than one historical moment? Does it matter that we are talking about items that will be attached to private property and not public ground? I don’t know.

      • Pat Young Mar 22, 2015 @ 1:48

        One of the arguments the state is making is that the license plates are state owned and as state property they are like monuments on a public square or an exhibit in the state museum. Could state museums that have displays on Jim Crow be forced to put up an exhibit on the good side of segregation? Does the state have any curatorial power over its property?

        • Kevin Levin Mar 22, 2015 @ 2:10

          Museum staffs make decisions all the time as to what is and what is not appropriate within their walls. They have a specific mission. What is the purpose/mission of vanity plates other than to allow groups of private citizens to petition their state for additional self-expression on their vehicles in exchange for an extra fee? As far as I know the state of Texas has never denied another group this privilege.

          Does the state have any curatorial power over its property?

          I guess we will find out.

        • Eric A. Jacobson Mar 23, 2015 @ 7:35

          “Could state museums that have displays on Jim Crow be forced to put up an exhibit on the good side of segregation?”

          I would hope not because museums should have latitude to put on display what they wish. If a government supported museum was forced to balance their displays then it begins to sound, at least to me, quite a lot like government sponsored language.

          “Does the state have any curatorial power over its property?”

          Mostly, same response as above. If the State actually owns the property, perhaps they might. But if the property is owned privately (by an individual or, let’s say, a 501c3), then what right does the State have to intercede and insert itself into curatorial decisions? I can say this, if the State of Tennessee tried to tell me what I could put on display at Carnton (which is privately owned) I would go to the mat fighting.

          • Pat Young Mar 23, 2015 @ 9:32

            Eric wrote:
            “Does the state have any curatorial power over its property?”

            Mostly, same response as above. If the State actually owns the property, perhaps they might. But if the property is owned privately (by an individual or, let’s say, a 501c3), then what right does the State have to intercede and insert itself…”
            The license plate is owned by the state and is state property.

            • Eric A.Jacobson Mar 24, 2015 @ 3:20

              Actually, I’m not sure it is. Once the individual purchases the item, I think the argument can be made that it then becomes the property of the purchaser. The same with State land. The State sells it, and then it is owned by a private individual.

              That being said, unless I have missed something, that is not the crux of the case at hand so the issue of who owns what is really quite circular.

              • Eric A. Jacobson Mar 24, 2015 @ 8:18

                I should add that I understand the case revolves around if the State allows the plate to be sold that it could be perceived as State sponsored speech. I understand basis of the argument, but my prior point is that once it is sold it is owned by an individual, so I don’t agree that it is State sponsored speech. But I’m no expert, and I’m not an attorney. Moreover, from reading some of what has been going in the Court today I’m not sure I’d want to be the attorney advocating for the plate. Yikes.

                • Andy Hall Mar 24, 2015 @ 14:04

                  Seven of the justices expressed real doubt that these plates — conceived, designed, and petitioned by the public — are purely government speech.

                • Pat Young Mar 24, 2015 @ 18:42

                  In most states, a license plate continues to be the property of the state and must be returned to the state at the end of its use. According to the U.S. Constitution Center “At the heart of the Texas case is the nature of the license plates. Texas argues that as government property, the state has the right to control the language on the plates, and citizens have the right to display (or not display) the vanity plates.” So part of the Texas argument is that the plate continues to be the property of Texas.

                  There may be states where the license plate is the property of the car owner, but apparently Texas (like New York) say that the licenses are owned by the state.

                  • Lyle Smith Mar 28, 2015 @ 12:30

                    If I purchase a specialty license plate from the State of Texas, the State of Texas being the seller in a contract with me the buyer, I am the owner of the speciality license plate.

                    The State of Texas doesn’t issue specialty license plates, they sell them.

  • M.D. Blough Mar 21, 2015 @ 16:45

    I remember thinking, when the whole subject of vanity license plates and allowing organizations to sponsor license plates as official state automobile license plates first arose that it was asking for trouble. If you have only one official license plate, there are no grounds for First Amendment challenges (unless you have a troublesome state motto on it like New Hampshire did). The state is under no obligation to create a forum. Once states became enamored of license plates as a fundraising scheme, then they opened the floodgates. I wasn’t persuaded by the lower court’s reasoning in Walker that the message was government and not private speech. I’ve seen very little evidence that states say no very often UNLESS they are objecting to the viewpoint expressed. It might be different if the state controlled design and simply let an organization put its name on it without embellishment but that doesn’t seem to be the case very often. I certainly don’t see vanity/organization sponsored license plates as representing any kind of state endorsement of the person or organization and its viewpoint;

    I don’t like it, mind you, but then that’s the core of the First Amendment. The answer to speech IS speech, not suppression. I wish states would go back to one license plate for everyone but I don’t see that happening even though I’m sure the police would appreciate it in terms of making it easier to read license plates.

  • Jimmy Dick Mar 21, 2015 @ 11:56

    You know the heritage fools will claim it as a victory. However, in their simpleminded view of what victory is, they are ignoring the reality of the situation. The entire debate allows us to educate people on the facts of the Civil War and how the CBF is a racist symbol of ignorance and tyranny. In the end, more people understand that the CBF is a symbol of racism and that the Civil War was caused by slavery.

    The heritage folks depend on a lack of explanation. When explanations are given, they lose every time. Therefore as freedom of speech is what we hope wins the case, the entire thing is a platform for us to successfully engage the public in a meaningful and positive way.

    End result: A win for Freedom of Speech and a big loss for the heritage folks.

    • Kevin Levin Mar 21, 2015 @ 12:01

      I suspect that the court will largely ignore the debate about what constitutes the proper interpretation of the Confederate flag. That, in part, explains the content of H.K.’s editorial as opposed to the famous skit that he performs for white people.

    • Eric A. Jacobson Mar 23, 2015 @ 7:29

      “The entire debate allows us to educate people on the facts of the Civil War and how the CBF is a racist symbol of ignorance and tyranny.”

      I disagree with this. This is a free speech issue, plain and simple. That being said, the flag has a historic context, and not just related to the Civil War. To interpret it solely as a symbol of ignorance and tyranny ignores and clouds other equally relevant facts.

      • Jimmy Dick Mar 23, 2015 @ 10:27

        The issue is a free speech issue. However, there are multiple symbols available to the SCV and they choose one in particular that is heavily associated with racism. By choosing it and ignoring the racist past that comes with that CBF, they made it a symbol of ignorance. The tyranny part is self-explanatory for anyone who studies history.

        So yes, this is a great debate opportunity. Those who want to use the symbol of racism, ignorance, and tyranny will do everything they can to avoid saying that is what that symbol stands for. They will say things like it is to honor the confederate soldier, most of whom never fought beneath that symbol. They will say things like the people who chose secession did it over state’s rights, but they can’t name those state’s rights.

        They will deny the role of slavery in the cause of the Civil War which means they are rejecting what the people of that time period said in favor of fiction. They will say that they know of no acts of racism where that symbol was used which means they are struck blind and stupid when the photographs of it being displayed during racist events and actions are shown to them.

        When that flag is flown in its proper context I have no issues with it. When it is used as the symbol of an organization that lies about the past, and ignores the racism involved with that symbol, then it is a symbol of ignorance.

        • Eric A. Jacobson Mar 24, 2015 @ 8:14

          “When that flag is flown in its proper context I have no issues with it. When it is used as the symbol of an organization that lies about the past, and ignores the racism involved with that symbol, then it is a symbol of ignorance.”

          You and I are in agreement, on this point and pretty much everything else in your response. I simply don’t feel the need to respond ad hoc to how the “heritage” crowd portrays the flag and how they interpret history. They conveniently ignore many key elements and will continue to do so. But those of us on this side don’t need to engage in their tactics, in my opinion. To simply say the flag signifies racism (actually racial bigotry would be a more accurate historic term) and tyranny doesn’t allow for any real discourse. It is a hardline approach and, from what I am gathering, largely based in response to how skewed the “heritage” approach is.

          Moving on, this may be a poor example, but just the other day I heard a UVA student state that there is a race problem at the school (which may or may not be true) and she went on to say that Thomas Jefferson was a wealthy, slave owning “beast.” I thought wow…really? Is that an accurate portrayal of Jefferson, or was it a response to the white washing of the Founders and apologies made on their behalf by some? I think the accurate truth, based on historical evidence, lies in between. Jefferson was no model of diversity from our perspective, but he also wasn’t a beast.

          On a note related back to Kevin’s original post….I just read some of what has been discussed in the Supreme Court regarding the license plates. It seems the pro-license plate side is largely following the libertarian approach, i.e. that just about anything can go on a plate. R. James George was asked by Ginsburg if a swastika might be approved and he said yes, so we see where his argument is headed. Then Scalia said George was essentially arguing for the abolition of all specialty plates, because it was inconceivable that just anything could be put on a plate. So both sides are hitting George pretty hard.

          • Jimmy Dick Mar 24, 2015 @ 13:51

            I just brought up the fact that if the CBF is allowed on plates, then the swastika will be bound to follow on another blog. Where is the line drawn? While I do not like to see freedom of speech restricted there is a point where it must be so. There are limits and we as citizens define them just like we do on all rights.

            I really hope that somebody on the Court would use some common sense and bring up the issue of context because to me that is the key to the whole discussion. When the CBF and swastika are used within their context, then they are used correctly. Outside of that context they are symbols of racism (use your term as you will), tyranny, and oppression.

            Hate groups rally around those two symbols and no, I am not saying they are the same in a historical sense, but rather in the sense of the symbols used by hate groups. If the CBF is allowed on a plate in any state, then so can any symbol. The swastika, gang symbols, drug cartel symbols, etc. can go on plates. If they can go on plates, what else can they go on?

            I think there is a serious problem here and while I definitely do not like to see freedom of speech abridged I think we have to address this issue in a meaningful way. If not, I do not think we are going to like the consequences.

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