Supreme Court: States Can Ban Confederate Flag

This week, the Supreme Court overturned an Appeals Court decision setting a massive precedent for free speech. The case, Walker v. Texas Division, Sons of Confederate Veterans, decides whether license plates are considered state speech or individual speech.

Sons of Confederate Veterans filed suit against the State of Texas when the state denied their application for personalized license plates displaying the Confederate flag. The organization’s commander in chief Charles Kelly Barrow argues the group was merely honoring those who fought for the south. He commented in USA Today saying, “The idea of inclusion, diversity, and tolerance apparently does not apply under law to those of us whose heritage is unpopular in some quarters.”

The lower court’s majority opinion was that state-issued plates do not constitute state-speech. They held that the First Amendment protects free speech rights, even on a license plate.

In the 5-4 decision in favor of Texas, the Supreme Court disagreed. They countered claimed messaging on plates implied that, to some degree, a state endorsement of the specific messages and therefore the plate constitute state speech.

“Texas offers plates that pay tribute to the Texas citrus industry. But it need not issue plates praising Florida’s oranges as far better,” Justice Breyer wrote in the majority opinion. “And Texas offers plates that say ‘Fight Terrorism.’ But it need not issue plates promoting al-Qaeda.”

One of the majority voters was conservative Justice Clarence Thomas. He joined four liberal members of the court to overrule the Appeals Court. Dissenters speculated that Thomas’s race served as an influencing factor in his vote against the flag.

The decision likely has opened a judicial can of worms. It raises more questions than answers concerning what a state can bar from plates and what it cannot. Thus, a decision which prohibits North Carolina from issuing a “Choose Life” plate without approval of a corresponding pro-choice option is now in question. “Choose Life” plates have been issued in 29 states.