Supreme Court Deals Blow to Free Speech in Confederate Flag Case

[vc_row][vc_column][vc_column_text]Though this author hails from the North, my familial roots and my understanding of states’ rights and constitutional permissibility of the federal government is absolutely Southern. Though I can appreciate the historical sensitivity connected to the Confederate flag, the flag is a symbol of heritage for millions of Americans and the treatment received by those who revere the flag and the heritage it represents has been nothing short of tremendously disrespectful and intolerant.[/vc_column_text][banner300 banner=”5517620b381df”][vc_column_text]To add further insult to injury, the Supreme Court has weighed in on the latest battle over the flag and the highest court in the land has decided that states can legally ban the Confederate flag from state-issued license plates.

The 5-4 split came as a shock to many who followed the case. With four liberals voting predictably, the death-blow to Southern expression came from an often-conservative justice, Clarence Thomas.

The 5-4 decision authored by Justice Breyer claims that the plates represent government speech and are therefore subject to censorship.

“States have long used license plates in this country to convey government messages,” Breyer noted, explaining that just as government cannot make motorists display a message, motorists cannot make government display a message.

USA Today reports on the issue at hand and the dissenting opinions:

The immediate impact is a setback for the Sons of Confederate Veterans, which had challenged Texas’ denial of its license plate. The group argued it was merely honoring those who fought for the South. Some state residents said the image of a Confederate flag symbolized racism and division.


“The idea of inclusion, diversity, and tolerance apparently does not apply under law to those of us whose heritage is unpopular in some quarters,” said Charles Kelly Barrow, the organization’s commander in chief. “This is a sad day for the First Amendment and for mutual respect and bridge-building among Americans of different viewpoints.”


Four justices, led by Samuel Alito, would have allowed the Confederate license plate and blocked states from refusing messages they find objectionable.


“The court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing,” their dissent said.


“Specialty plates may seem innocuous,” Alito added. “They make motorists happy, and they put money in a state’s coffers. But the precedent this case sets is dangerous.”


To illustrate his point, Alito imagined sitting along a Texas highway and seeing more than 350 specialty plates whiz by — plates honoring colleges and universities, fraternities and sororities, even “a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver.”


“Would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?” he said.

[/vc_column_text][banner300 banner=”553157113d3ff”][vc_column_text]Josh Blackman, Associate Professor of Law at the South Texas College of Law and author of Unprecedented: The Constitutional Challenge to Obamacare, told PolitiStick that Alito was correct and that this was not government speech. In an article discussing the decision, Blackman called Breyer’s decision “dangerous” and noted,

Justice Breyer has been making a concerted effort to reorient the First Amendment not around individual liberty, but on “collective speech.” That is, what kind of speech makes democracy work. This decision screams “collective liberty,” with its capacious understanding of “government speech” that is flatly inconsistent with Summum. By making the real of “government speech” bigger, the Court is able to contract “private speech.” This is dangerous.


Consider Justice Breyer’s opinion, which ties the First Amendment and the “Democratic Electoral Process together”


When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Pleasant Grove City v. Summum, 555 U. S. 460, 467–468 (2009). That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235 (2000).


No! The First Amendment puts a limit on the democratic process. We don’t allow the majority to censor disfavored speech. This is so fundamentally wrong, and it got 5 votes

Alito is absolutely correct in his assessment. With such license plates, the driver, not the state, is speaking. The state may have facilitated the license plate as a means of procuring additional, much-needed revenue; however, few in their right minds would:

A) View the Sons of Confederate Veterans’ logo and believe it to be a hateful message and…

B) Believe that this message was coming from the state government, and not the driver of the car.

Though I can certainly understand the “slippery slope” argument and may be wary of advocating a system where any message is welcomed, our justice system, if it is to err, should strive to err on the side of having enabled too much freedom rather than the inverse, too much free speech rather than not enough.

The Supreme Court missed an opportunity to enhance the capability of free speech, a healthy aspect of our republic that is increasingly eyed with suspicion by those who prioritize sensitivities over broader freedom for all.[/vc_column_text][/vc_column][/vc_row]

About the Author

Greg Campbell
Greg Campbell
An unapologetic patriot and conservative, Greg emerged within the blossoming Tea Party Movement as a political analyst dedicated to educating and advocating for the preservation of our constitutional principles and a free-market solution to problems birthed by economic liberalism. From authoring scathing commentaries to conducting interviews with some of the biggest names in politics today including party leaders, activists and conservative media personalities, Greg has worked to counter the left’s media narratives with truthful discussions of the biggest issues affecting Americans today. Greg’s primary area of focus is Second Amendment issues and the advancement of honest discussion concerning the constitutional right that protects all others. He lives in the Northwest with his wife, Heather, and enjoys writing, marksmanship and the outdoors.

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