SCV is a group that claims it seeks to celebrate the old battle flag as a “symbol of sacrifice, independence and Southern heritage.”
Nine states, including Alabama, Georgia, Louisiana, Mississippi, already allow drivers to use specialty license plates featuring the Confederate flag.
Texas first refused the proposal for a license plate featuring the old battle flag in November 2011 when members of the board of its motor vehicle department voted unanimously against it. The board had earlier deadlocked in April 2011.
The decision to refuse the license plate came after pressure from civil rights groups who mobilized massively to oppose the proposal.
The board defended its decision, saying that “a significant portion of the public associates the Confederate flag with organizations advocating expressions of hate.”
Although, a spokesperson for SCV, Ben Jones, denied allegations that the group is racist, saying that it is “a heritage organization,” opponents of the group, such as Sherrilyn Ifill, president of the NAACP Legal Defense and Education Fund, are of the opinion that the flag is a “powerful symbol of the oppression of black people” and that proponents of the symbol are generally racist groups promoting hate speech.
SCV subsequently filed a First Amendment challenge, arguing that the action by the state of Texas violated free speech rights. But after the U.S. Court of Appeals for the Fifth Circuit in New Orleans ruled in favor of SCV, the state appealed to the U.S. Supreme Court.
The Guardian reports that on Monday the justices of the Supreme Court appeared to vacillate between arguments by both sides in the dispute, showing visible dissatisfaction with some aspects of the arguments by the state in defense of its action while at the same time wary of the implications of approving the arguments of SCV attorneys.
Justice Ruth Bader Ginsburg, for instance, pointed out that SCV’s argument implies that the state of Texas could also be compelled to allow all forms of egregiously offensive and potentially inciting speech statements on its license plates, such as statements in support of al Qaeda and jihadism.
She asked, “So they could have the swastika. And suppose somebody else says I want to have ‘Jihad’ on my license plate. That’s OK, too?”
In the context of the argument that ruling in favor of the SCV implies that jihadis could also claim free speech rights if refused a jihadi symbol and slogan on license plates, Texas Solicitor General Scott Keller argued that the plates bear the name and imprimatur of the state and thus, ultimately, any “speech” featured on the plate is government speech. Thus, the state has a duty to ensure that it does not allow any person or group to feature speech contrary to what the state stands for.
According to former Texas Solicitor General Jonathan Mitchell, in a statement,
“The plaintiffs have every right to festoon their cars with bumper stickers or other images that display the Confederate battle flag. But they can’t compel the state of Texas to propagate the Confederate battle flag by displaying it on state-issued license plates.”
A brief submitted by the state of Texas to the Supreme Court, said,
“A state 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. Likewise, a state can exclude less pernicious but still-controversial symbols such as the Confederate battle flag.
“States that issue ‘Fight Terrorism’ specialty plates are not required to offer specialty plates with messages that praise terrorist organizations.”
The argument by the state of Texas in a nutshell: You have your free speech but you can’t extend it to plate numbers bearing the name and imprimatur of the state; you can’t compel the machinery of state to carry a message that the government does not want to be associated with.
Gov. Rick Perry had reportedly indicated his support for not allowing the plates, saying, “We don’t need to be scraping old wounds.”
But meanwhile, civil liberties groups, such as the American Civil Liberties Union (ACLU) have filed briefs in the Supreme Court supporting the SCV. While the ACLU agreed that the flag is offensive to many as a symbol of the history of racism and slavery, it argued that censorship was unjustified.
“The Confederate battle flag was the banner for those who supported slavery and sought to break our nation apart. It later served as a rallying sign for those seeking to maintain racial separation in all facets of life, from the voting booth to the wedding chapel.
“However reasonable this distaste for a symbol of racism, the Constitution does not permit the state to discriminate against messages in a forum it has created for private speech.”
The New York Times notes that the Supreme Court agreed that if, as Texas argues, specialty plates can be rightly considered government speech because they carry the name and imprimatur of the government, then arguments in support of allowing Confederate flags to be featured on license plates based on the First Amendment do not apply because the government is free to decide what speech it wants to be identified with.
The Supreme Court is expected to take a decision in Walker v. Sons of Confederate Veterans, 14-144, later in June.
