The court’s verdict is in – and it’s one rooted in the First Amendment, even if the decision is to retire a bit of expressive speech, the Confederate battle flag, from public view.
This majority decision comes in the Court of Public Opinion, which — after decades of consideration, some would say 150 years — now seems to be decisive: The battle flag, long ago hijacked by bigots as a symbol of racial divide rather than an expression of regional pride, should be seen only where its historical meaning can be revered, not on government display where its hysterical misuse is rightly reviled.
As it happens, this growing public verdict stands in contrast to one that came just last week involving the same flag, but one in which five U.S. Supreme Court justices decided that slogans and images on auto license plates are “government speech” — and that Texas could bar the Confederate flag from its tags.
Both decisions will take the Confederate flag out of public sight. But the opinion issued in Washington, D.C. damages the First Amendment rather than upholding it.
Let’s parse the differences:
The public battle to remove the Confederate flag from official government use has raged for years across the Southern states, which had placed it on display from statehouses to sports stadiums. In South Carolina, legislators hoisted it 50 years ago atop the statehouse dome as a direct, state governmental response to federal mandates on integration. It later was moved to a war memorial next to the state capitol.
Little doubt that — as officials said then and concede now — it was the “government” speaking there through that symbol — even if in the 1960s that government represented only a portion of the governed.
Last Friday, a 5-4 majority on the U.S. Supreme Court decided — in Walker v. Sons of Confederate Veterans — that if Texas officials allowed the Confederate battle flag to be shown on its license plates, vast numbers of citizens would assume it was “Texas” speaking.
But as Justice Samuel A. Alito Jr, said in his dissenting opinion, beyond a plate’s ID numbers and letters, Texas uses the remaining space as “little mobile billboards on which motorists can display their own messages in support or opposition of a number companies, sports teams, products and social issues.”
Private speech in those little mobile signs is not the clear statement by government made by the mandated, highly regulated display of the Confederate flag in Columbia, S.C. Without legislative vote, that flag cannot even be lowered to half-mast as a symbol of sympathy for nine people senselessly killed by a racist thug.
Justice Alito framed the error of the Court’s license plate decision in a common sense way: “Suppose you sat by the side of a Texas highway and studied the license plates on the vehicles passing by. … If a car with a plate that says ‘Rather be golfing’ passed by at 8:30 a.m. on a Monday morning, would you think: ‘This is the official policy of the State — better to golf than work?'”
Alito and others note that not only is the court’s decision an improper limit on speech in this case, but it provides a dangerous precedent: Can a state college or university similarly ban private messages on campus bulletin board advertising spaces by sorting through what it approves or does not approve?
As a nation, we’re now engaged in an appropriate, vigorous public debate over whether public flagpoles and monuments on public property ought to include a government-mandated flag associated with discrimination and bigotry by large numbers of public.
But individuals who decide to post that same flag image on their license plates are making a personal statement and pay an extra fee to express their views.
When it comes to license tag statements — and other private places — individuals ought to be free to say what they want or don’t want to say.
No doubt, the battle flag will continue to be seen on the backsides of vehicles, but on bumper stickers and window decals if not license plates. But others will decide differently: Wal-Mart, Sears, Target, Amazon and other retailers are exercising their own free speech rights and removing merchandise carrying the Confederate flag from their shelves and online offerings.
When the government really speaks, whether by legislation, monument or flag, it should speak for all of us — and we all should have a voice in what it says to all of us.
But the First Amendment protects our individual right to express our own views even when we offend — and that right should extend to the personal and personalized messages we choose to display via Justice Alito’s “little mobile billboards.”