“A significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”
— Texas DMV Board
“When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”
— Justice Stephen Breyer
Amid numerous public discussions of statues, military base names, and the confluence of history and racism, the Confederate battle flag has again been front and center. Although often at the center of such discussions, this round of scrutiny brought about a ban from NASCAR, a boycott from the NCAA, and a move to remove the emblem from the Mississippi state flag that was endorsed by the state’s Republican lieutenant governor and attorney general.
Five years ago this week, the United States Supreme Court decided a major First Amendment case involving the Confederate battle flag. In that case, Walker v. Texas Div., Sons of Confederate Veterans, Inc., a sharply divided court had been asked whether a refusal by the state of Texas to issue license plates with the flag was a violation of the free speech rights of those who petitioned to have the plates.
The High Court, by a vote of 5-4, found that the state was justified in denying the plate. The main question before the court was not whether the flag was appropriate or not or whether it was good public policy for it to be displayed, but rather whether the speech involved (a license plate) was private speech by the individual whose car the plate would be displayed on, or public speech by the State of Texas.
The distinction is crucial. As Justice Stephen Breyer noted in the majority opinion, government speech is not controlled by the First Amendment. Rather, the First Amendment prohibits government restriction of speech by private individuals. As a result, if the license plate was government speech, then the State of Texas can restrict and control it all it likes. The majority concluded that license plates are issued by the states, are government ID’s for vehicles, convey government slogans and logos, and are directly controlled by the states themselves. The majority therefore concluded that license plates are government speech and that the individual states are therefore free to choose which designs may go on them. The majority also noted that the reverse was not true — that states may not require individuals to carry a license plate that contains a message that the individual reasonably finds objectionable.
The dissenters noted that there were more than 350 specialty plates now available in Texas. They concluded that the choice of which of those plates to carry — which college, sports team, NASCAR driver or business logo — was clearly an individual decision by each vehicle owner. Under their logic, the basic plate may be government speech, but once the government allows individuals to speak through the specialty plates, the specialty logos should be considered individual speech and the First Amendment should be implicated.
What was, perhaps, most notable about the case was that the five justice majority was made up of the four more liberal Justices of the Court and the very conservative Justice Clarence Thomas — a very rare combination indeed. Five years on from the decision, it is more important to note that the five justices who formed the majority are all still on the High Court, while two of the dissenters are no longer there — Justice Scalia, who passed away, and Justice Kennedy, who retired.
In the context of the Mississippi state flag discussion, the Walker case means the state is free to make any change to the state flag that it wishes, since the speech involved in the flag is state speech, not individual speech. It is also worth noting, as we are in Ohio, that some Mississippi officials have suggested replacing the Confederate battle flag in their state flag’s canton, with their state seal and the words “In God We Trust.” Three federal circuit courts have approved the use of that language on currency and in other federal uses, and the 6th Circuit Court of Appeals approved Ohio’s use of the state motto “With God All Things Are Possible” — a case that was argued on behalf of Ohio by then state Solicitor David Gormley, who is now one of the two judges of the General Division of Delaware County’s Court of Common Pleas.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas. He has written a weekly column on law and history for the Gazette since 2005.