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Not My Tag, Not My Speech

Texas license plate
photo by Paul Sullivan

Before I came to work last Thursday morning, I transacted a little business at my Florida home: I sold a 2000 Toyota Camry that I inherited from my father to a young man who needed inexpensive, reliable transportation.

Of course, I removed my Florida license plate. (We call them “tags” down here, and each vehicle only needs one rear-mounted official plate; we can mount any tag we want on the vehicle’s front.) Florida encourages motorists to retain their tags and transfer them from vehicle to vehicle, as I plan to do in this case. But there is a caveat: If I cancel my insurance on the old Camry in the interim, even though I no longer own it, Florida requires me to turn in my tag. To make this process work, I need to transfer the tag first, then cancel the insurance. The insurer will refund the portion of the premium that relates to the period after the Camry was out of my hands.

In other words, my tag really belongs to the state of Florida, not to me. I just have a right to use it under certain conditions, which the state prescribes.

This is exactly the conclusion to which the Supreme Court arrived last week in Walker v. Texas Division, Sons of Confederate Veterans.

As regular readers know from my commentary on Citizens United and similar issues, I take a very strong stand in favor of First Amendment freedoms, and I typically agree with the Court’s conservative bloc in this area. But neither I, nor almost any other observer, has ever read the First Amendment as requiring the government to furnish any particular venue for speech, apart from providing reasonable access to public spaces regardless of message content.

If neo-Nazis want to march down a public street in Skokie, Illinois, carrying swastika banners, that is their right, no matter how offensive they may be to the rest of us. The Supreme Court has affirmed that right.

But if Skokie happened to publish a municipal newsletter, it would not be required to furnish space to a neo-Nazi columnist. And if Illinois happens to issue license plates, as of course it does, it will not be required to permit plates displaying swastika banners, either.

To many, a Confederate battle flag is just as offensive as a swastika, and equally meant to be interpreted as a symbol of hate. The flag that flew outside the courthouse in Shreveport, Louisiana was successfully removed in 2011 in the wake of arguments that it contributed to racially biased results in several death penalty cases held there.

Just last week, South Carolina’s state government found itself criticized harshly when it lowered the state and American flags at its statehouse in honor of the Charleston shooting victims, but the Confederate flag stayed raised. Regardless of the reason for this state of affairs, it sent a strong message - one that was not about honoring regional heritage, whatever the flag’s defenders might claim. After weekend protests in the state, Gov. Nikki Haley called yesterday for the flag’s removal. Under South Carolina law, it will take a two-thirds vote in both the state House and Senate in addition to the governor’s approval.

There is no more reason to require a state to permit a Confederate flag on a license tag than to require a state to allow those who are so inclined to display swastikas on their plates.

Oddly, the Court’s conservative bloc was unable to see this distinction, apart from Justice Thomas. Perhaps it is because he is African-American and was reared in the South that he not only appreciates the offensiveness of the Confederate flag, but also recognizes that a state that permits personalized slogans such as “Save the Whales” need not also permit slogans that say “We Hate Black People,” even if in pictures rather than in words.

I find it hard to believe that the four justices in the minority would have also found Texas obliged to permit common swear words or other vulgar speech on its tags. So why require the state to manufacture and distribute the Confederate flag?

To their credit, Texas officials recognized, even if Chief Justice Roberts and Justices Alito, Scalia and Kennedy did not, that the state ought to have the freedom to decide what gets displayed on its own property - in this case, the license tags. Their original decision, to refuse plates bearing the flag, was the correct one.

The Court’s liberal bloc is a fair-weather friend of the First Amendment, citing it only when they find it convenient. And, consistent with that approach, they did not decide Walker on First Amendment grounds at all. If Texas tags belong to the state and not to the motorists, they reasoned, Texas cannot not be required to permit messages of which it disapproves to be displayed on its own property.

I think the liberals, and Justice Thomas, got it right this time. More importantly, the state of Texas got it right, and in the process set an example for other Southern states that have not found the gumption to stand up to the reactionaries who deny the meaning of that Confederate flag, and who accordingly permit it to be displayed on license plates, state capitols and other public property.

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