The Texas Case: Confederate Flag – A Symbol of Terrorism And Free Speech

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How would Black civil war soldiers feel about the Confederate flag?

The Confederate flag represents racial oppression to many. Yet, it is a mere relic of Southern history to some. The U.S. Supreme Court heard arguments to decide if this symbol of the Confederacy should be allowed on official Texas license plates.

On March 23, the Court heard the case of Walker v. Sons of Confederate Veterans. These motorists pay an extra $30 for the specialty plate. Texas rejected the request of the Sons of Confederate Veterans to have an official license plate bearing the Confederate flag.

Even Gov. Rick Perry believed the flag symbol was divisive. “We don’t need to be scraping old wounds,” he said.

However, the Sons of Confederate Veterans appealed the decision denying them a place on a Texas plate. The American Civil Liberties Union joined their fight against what they allege to be censorship. Nadine Strossen, New York Law professor, advocated on behalf of the Confederate flag while admitting it is offensive to many people, especially African-Americans.

Texas believes “it is fully within its rights to exclude swastikas, sacrilege and overt racism from state-issued license plates that bear the state’s name and imprimatur,” the Texas brief said. “States that issue ‘Fight Terrorism’ specialty plates are not required to offer specialty plates with messages that praise terrorism.”

Drivers can use bumper stickers, Texas argued. But, the state has the power to decide whether language or symbols are offensive and what can be placed on official state platforms such as a license plate, argued Texas Solicitor General Scott Keller. License plates are mini-billboards, he claimed. An official state license plate is expressing the views of the individual as well as Texas, he said.

Nine other states have confederate flag options for drivers - Maryland, Mississippi, Georgia, North Carolina, Alabama, Louisiana, Tennessee, Virginia, and South Carolina. In South Carolina, the Confederate flag flies above the capitol. It is part of the state flag.

Texas complains that if it cannot control its specialty plates then license plates could contain racial slurs, Jihad, or other words that incite violence.

Ben Jones, a national spokesperson for the 30,000 member Sons of Confederate Veterans, calls Texas’ stance hypocritical. Texas has placed the Confederate flag on dozens of state-sanctioned tourist items and miniature flags can be bought in the Texas capitol gift shop, the Confederate brief states. Texas also holds a Confederate Heroes Day celebration.

Jones, who played Cooter Davenport on the Dukes of Hazzard television show, refutes any notion that his Confederate organization is racist. Jones claims that there are “Black members, Hispanic members, Jewish members and Native members” in the Sons of the Confederate Veterans.

During his argument on behalf of the Sons of the Confederate Veterans, R. James George, Jr. argued that the First Amendment required approval of all messages no matter how offensive to some. He then raised the fact that Texas endorses a commemoration in June for the abolition of slavery called Juneteenth.

Free speech takes many forms.

A man who burned the American flag was expressing his political beliefs and the Court protected it as freedom of expression in the 1989 Supreme Court decision Texas v. Johnson.

Iowa high school students who wore black armbands to protest the Vietnam War were protected under the First Amendment, as well, according to the 1969 Supreme Court decision, Tinker v. Des Moines Independent Community School District. So, speech need not be spoken or written to be protected. Nor must speech be popular.

Although the Confederate flag remains a symbol of racial division and terrorism, the Court seemed unsure as to how to balance the history with the current developments in communication. Justices Sonia Sotomayor and Elena Kagen both remarked, “this is a new world” for free speech.




Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College (CUNY), is a writer, and the U.S. Supreme Court correspondent for AANIC (African-American News & Information Consortium).



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