Stars, Bars and The First Amendment
The United States Supreme Court heard oral argument on Monday in a case that presents a tricky First Amendment issue. Does the First Amendment require the state of Texas to approve a specialty vehicle license plate that features the Confederate flag? Under the Texas program, the state sells space on licenses plates for individuals, non-profits and businesses to publish messages and advertising. Theoretically, anyone willing to pay a premium can post a message. The money goes to the state.
And that’s where it gets a little tricky. The Texas Sons of Confederate Veterans (I would think all of those people would be dead by now. The Civil War ended in 1865. I assume this is primarily great-great grandsons of Confederate veterans. But I digress) applied for a message that featured the Confederate flag. The Texas Department of Motor Vehicles Board (“Department” and “Board” seems redundant to me, but again, I digress) rejected the application because:
“[P]ublic comments have shown that many members of the general public find the design offensive, and because such comments are reasonable.”
And I agree that there are reasonable people who are offended by the confederate flag. But having said that, it’s hard for me to see how this decision survives the First Amendment challenge. Let’s think about this for a minute. This is a state prohibiting speech based on the content of the speech. The Sons of Confederate Veterans filed a 20 page brief but honestly, I’m not sure they needed to say much more than that last sentence.
The state may regulate and prohibit a very narrow subset of speech. Truly incendiary speech (i.e. speech that incites imminent violence), “fighting words”, and obscenity are subject to regulation. But the Confederate flag, no matter how offensive it may be, does not fall under any of those categories. Nor should it. I have no desire to defend the veneration of that flag. But I am a big believer in the First Amendment. And it’s always good to remind ourselves that the First Amendment doesn’t exist to protect speech we love. It exists to permit speech we hate. It’s what makes us free, unlike slaves who lived in the Confederacy. But once again, I digress.
Texas has two choices as I see it. Either run the license plate program consistently with the First Amendment, or shut it down. I just don’t see much room for compromise on this one.