The U.S. Supreme Court heard oral argument yesterday in Walker v. Sons of Confederate Veterans yesterday. At issue is whether the First Amendment requires Texas to issue specialty license plates sporting the Confederate Battle Flag. The case does present interesting free speech questions. Does a state have the right to control the message that is placed on its license plates? Or does the free speech right of its citizens trump the state’s right to control a message with its seeming imprimatur.
The oral argument was heated. The lawyer for the Confederate enthusiasts R. James George, Jr. was more or less backed into a corner when asked where the line on license plate messaging could be drawn. But the justices seemed uncomfortable with arguments advanced by both sides.
Justice Ginsberg asked a series of questions asking what else would be permitted If the court finds the state must sanction the Confederate flag on license plates. Ginsberg asked would Texas be forced to allow plates with a “swastika,” the word “jihad,” and a call to make marijuana legal?
George bravely answered “Yes.” to each more offensive hypothetical.
“That’s okay? And ‘Bong hits for Jesus?'” Ginsburg asked, reaching back to an earlier case involving students’ speech rights.
George failed to waiver even when Justice Elena Kagan added in “the most offensive racial epithet you can imagine.”
George responded that “speech that we hate is something that we should be proud of protecting.”
Justice Anthony Kennedy argued that a ruling in favor of the SCV’s would probably be the end of the state’s program of allowing many specialized license plates. “If you prevail, it’s going to prevent a lot of Texans from conveying a message.”
Chief Justice John Roberts and Justice Samuel Alito said the sheer number of messages and their wide range show that the state’s only interest is financial.
“They’re only doing this to get the money,” Roberts said. “Texas will put its name on anything.”
In the interest of full disclosure, Red acknowledges that he is the great-great grandson of at least one Confederate veteran. Red does not subscribe to the fantasy promoted by the Sons of the Confederate Veterans that the “Noble Cause” was about something other than preservation of a way of life built on the enslavement of other human beings.