The United States Supreme Court yesterday ruled that the First Amendment does not require the state of Texas to allow specialty license plates featuring a Confederate flag.
The Sons of Confederate Veterans sought state approval for a license plate design that featured the group’s logo: a Confederate battle flag framed on all four sides by the words “Sons of Confederate Veterans 1896.” It also has a faint image of the Confederate flag in the background.
In 2011, after several votes, the Texas Department of Motor Vehicles rejected the application because it found “a significant portion of the public associate the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”
A federal district court upheld that decision, but on July 14, 2014, the United States Court of Appeals for the Fifth Circuit ruled in a 2-1 decision that Texas had violated the Sons of Confederate Veterans group’s First Amendment rights. “By rejecting the plate because it was offensive,” the majority wrote, “the board discriminated against Texas SCV’s view that the Confederate flag is a symbol of sacrifice, independence, and Southern heritage.”
The state appealed to the Supreme Court. The case is Walker v. Texas Division, Sons of Confederate Veterans. Writing for the five-member majority, Justice Stephen Breyer reasoned that license plates are the government’s speech, and “[w]hen government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” Accordingly, the Court concluded that Texas was entitled to refuse to issue plates featuring the Sons of Confederate Veterans’ proposed design.
The Court observed that “drivers who display a State’s selected license plate designs convey the messages communicated through those designs,” and the First Amendment “stringently limits a State’s authority to compel a private party to express a view with which the private party disagrees.” The reverse is also true, the Court noted: “just as Texas cannot require SCV to convey ‘the State’s ideological message,’ SCV cannot force Texas to include a Confederate battle flag on its specialty license plates.”
Nine other states, including Alabama, have license plates featuring images of the Confederate flag, all designed by the Sons of Confederate Veterans.
One of the nine is South Carolina, where a Confederate flag continues to fly over the grounds of the state’s Capitol. On the same day the Supreme Court decided Walker, a white man shot and killed nine people in an historic Black church in Charleston, South Carolina. Photographs of the suspect with white supremacist images and the decision to investigate the shootings as a hate crime have renewed calls for South Carolina totake down the Confederate flag from its Capitol.
More than a generation after the Civil War, Southern whites began asserting their social and cultural dominance by embracing a revisionist history that portrayed the Civil War as a conflict in which the Confederate cause was heroic, honorable, and deserving of tribute. The conflict was recast as one unrelated to the institution of slavery, and the lesson of the Civil War as well as the suffering of generations of enslaved Black people was lost. This myth ignored the true brutality of that time period and distorted our national memory of the intermingled links between American slavery, the Civil War, and race.
The claim to Confederate pride re-emerged in the 1950s and 1960s in efforts to assert defiance in the face of a new threat: the growing civil rights movement. Southern white resistance to the civil rights movement on the national stage often shrouded itself in references to the Civil War and the Confederacy’s “bravery in the face of federal tyranny.”
In a not-so-subtle statement of continued Southern commitment to white supremacy, Confederate veterans groups enjoyed renewed interest after World War II and into the 1950s and 1960s, and new groups were formed. In 1959, the Texas chapter of the Children of the Confederacy erected a plaque in the Texas state capitol building which insisted “the war between the states was not a rebellion nor was its underlying cause to sustain slavery.”
Efforts to recast the Civil War and its origins have continued. In 1996, Alabama state senator Charles Davidson supported a bill to fly the Confederate flag atop the state capitol building in Montgomery, asserting that slavery was a “family institution” and “civilizing influence” that gave slaves education and the Christian religion, for which “those converted Black Southerners are most grateful today.”
The legacy of slavery, emancipation, white supremacy, and revisionism in the South, and throughout this nation, continues to shape discourse about racial history and impede progress toward honest and hopeful engagement with the past. EJI’s Race and Poverty project is focused on developing a more informed understanding of America’s racial history and how it relates to contemporary challenges. EJI believes that reconciliation with our nation’s difficult past cannot be achieved without truthfully confronting history and finding a way forward that is thoughtful and responsible.