The Confederate Battle Flag, Personal License Plates, and Litigation

By Dennis Keating
The Cleveland Civil War Roundtable
Copyright © 2015, All Rights Reserved

In Tony Horowitz’s Confederates in the Attic: Dispatches from the Unfinished Civil War (Random House, 1998), he devotes a chapter entitled “Dying for Dixie” to the killing of a neo-Confederate in Kentucky devoted to the Confederate flag by a black teenager and the antipathy of African Americans to Confederate symbols that defended slavery. In contrast, many Southerners regard the flag as a symbol of Southern patriotism and reject attempts to ban it from public places. The definitive history of the Confederate battle flag and the contemporary controversies over its display is The Confederate Battle Flag: America’s Most Embattled Emblem (Harvard University Press, 2005) by John Coski, Library Director of the Museum of the Confederacy.

Perhaps the best known controversy was the flying of the flag over the state capitol of South Carolina, the birthplace of the Confederacy, beginning in 1961. The NAACP mounted a campaign in 1987 to remove the battle flag from the capitol domes of Alabama and South Carolina and from the state flags of Georgia and Alabama. Corsi recounts these political and legal battles in a chapter entitled “What We Stood For, Will Stand For, and Will Fight For.” The South Carolina controversy resulted in an NAACP-declared national tourism boycott in 1999 and it became an issue in the 2008 presidential campaign. In 2000, South Carolina removed the flag from the dome and moved it to a Confederate soldiers memorial on the capitol grounds (an unsatisfactory decision to the NAACP).

Among other flag controversies has been the issuance by Southern states of personalized special auto license plates that feature the battle flag. Alabama, Georgia, Mississippi and North Carolina issue such license plates. On December 5, 2014, the U.S. Supreme Court agreed to hear an appeal over this issue from Texas: Walker v. Texas Division, Sons of the Confederate Veterans (SCV) (No. 14-144). The lead plaintiff is a professor of civil engineering at Texas A & M. The Texas SCV applied for the plate to the Texas Department of Transportation (TxDOT) in 2009. After public hearings and several divided votes by a special committee that reviewed such requests, it was denied in 2009 and then again in 2011 by the Texas Department of Motor Vehicles Board (DMVB). The SCV then sued in the federal courts, claiming that the denial violated their First Amendment right to Free Speech. They also claimed racial discrimination in violation of the Fourteenth Amendment because Texas approved a special license plate proposed by the Buffalo Soldiers National Museum to honor the black soldiers who served in the 19th century frontier U.S. army.

In a 2013 decision, a federal district court judge ruled that under the First Amendment Texas’ content-based regulation was reasonable. The SCV appealed to the Fifth U.S. Circuit Court of Appeals (only on the First Amendment claim). In a split (2-1) decision, it reversed the lower court opinion in favor of the SCV: 759 Federal Reporter, 3d 388 (July 14, 2014). The majority ruled that the issuance of a license plate was private speech, not government speech, despite the state’s regulation of specialty license plates. It also ruled that the denial was impermissible viewpoint discrimination violating the First Amendment rights of the members of the SCV, despite the Board’s implicitly crediting “the view that the Confederate flag is an inflammatory symbol of hate and oppression.” Instead, it held that “By rejecting the plate because it was offensive, the Board discriminated against Texas SCV’s view that the Confederate flag is a symbol of sacrifice, independence, and Southern heritage.” In a lengthy opinion, the dissenter interpreted a 2009 U.S. Supreme Court precedent to conclude that this was in the realm of government speech, not subject to a First Amendment claim.

Federal courts have divided on this issue. The Supreme Court is expected to hear the case this spring.

Related links:
The Campaign Against the Confederate Battle Flag
Jefferson Davis Monuments Being Removed?
Some Thoughts on the Removal of Southern Civil War-Related Symbols
Whose Maryland?

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