Since clerking for Justice Thurgood Marshall in the early 1970s, I’ve returned to the U.S. Supreme Court three times in the service of clients. Each case has been significant in its own way, and each garnered its share of news coverage. But none was as controversial as Walker v. Sons of Confederate Veterans, which I argued in March.
The facts of the case are straightforward. As it had done successfully in seven other states, a historical society called the Sons of Confederate Veterans applied to the Texas Department of Motor Vehicles for a license plate bearing an image of the Confederate battle flag. A DMV board initially approved the request, but it reversed itself after one of the agency’s senior executives complained, citing a state law allowing the refusal of a design that “might be offensive to any member of the public.”
The Sons of Confederate Veterans sued, claiming its right to free speech had been violated. If organizations as diverse as the University of Notre Dame, the World Wildlife Fund and Mighty Fine Burgers are allowed to create Texas license plates, the group argued, then it should be afforded the same opportunity.
The Sons of Confederate Veterans case went all the way to the nation’s highest court, where I argued on the group’s behalf.
What, pray tell, was I thinking? That’s the question that clogged my inbox in the days following my argument. Friends, family and former associates demanded to know why a protégé of the Supreme Court’s first African-American justice would go to bat for a cause they believed to be racist.
My answer is simple: Controversial speech is the only speech that truly needs protecting. If there were no benefit to the open debate of contentious ideas, our nation’s founders would not have seen fit to safeguard it.
Let’s assume the DMV was correct when it asserted, in effect, that the Confederate battle flag is first and foremost a symbol of slavery and that its appearance is likely to offend someone. (Let’s also ignore, for a moment, that Texas was a member of the Confederacy, that every employee of a state agency gets to stay home on Confederate Heroes Day and that the Capitol grounds contain several statues of prominent Southern rebels.) Would state authorities be justified in banning the sale of bumper stickers featuring the flag’s image?
I believe most of us would agree that no, they would not be.
But what about this case, which deals with specialty license plates? Surely the state can refuse to manufacture a license plate it finds controversial.
Again, I believe it cannot. I believe Texas abandoned that option when it opened the door to license plate designs from anyone willing to pay $8,000, which covers the state’s costs.
Today, Texas drivers can choose from hundreds of license plate designs, netting the state millions of dollars in annual fees. Available plates include “Choose Life” (created by the anti-abortion group Texas Alliance for Life), “One State Under God” (created by a Nacogdoches-based ministry) and “Don’t Tread On Me” (promoted by the Foundation for Moral Law, a nonprofit with Tea Party leanings).
I believe that the state has unwittingly created a new kind of public forum, to borrow a phrase from Justice Anthony Kennedy. It has opened a 6-by-12-inch space for private speech, plain and simple. The state may own the plates, but only the driver can choose the message that’s right for her, and only she can walk out and bolt it onto her car.
If you look around, you’ll notice that our world is filling up with all sorts of new public forums. What kind of speech should Facebook be policing, if any? Is Twitter right to ban certain users because of the content of their tweets? These are complicated issues that our legal system is only beginning to explore.
Make no mistake: Modern-day Texas needs to come to terms with its past as a part of the Deep South, and whether or not displaying the Confederate battle flag adds to that debate is a conversation worth having. No good conversation was begun, though, with one side stopping the other from speaking.
Disclosure: Jim George is a major donor to The Texas Tribune and has done legal work for the Tribune. A complete list of Tribune donors and sponsors can be viewed here.