In its first big decision in June that isn’t on Obamacare or same-sex marriage, the Supreme Court handed a huge loss to a confederate group that wanted to force Texas to issue a specialty license plate emblazoned with a logo of the Confederate flag. The ruling marked a watershed win for liberals, but the biggest surprise was ultraconservative Justice Clarence Thomas, who joined them in finding Texas did not violate the First Amendment when it denied the Confederate group’s request for plates.
The decision in Walker v. Sons of Confederate Veterans comes at a sobering moment for the country, as the people of Charleston, South Carolina, come to grips with a deadly shooting at a historic black church there. Rarely does a decision of the Supreme Court — often shrouded in legal formalisms and procedural abstractions — meet so directly with a real-time tragedy in the headlines. But Walker is such a case: Vox reports that even now, a Confederate flag still flies in the South Carolina statehouse.
The case began with a coalition of groups and citizens — including the NAACP, clergy, and elected officials — worried about what Confederate-flag plates would represent. They lobbied the Texas Department of Motor Vehicles to reject them. In the face of the outcry, the agency said “that a significant portion of the public associates the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups,” and declined to issue the plates. In response, the Sons of Confederate Veterans brought suit in federal court and ultimately won at the U.S. Court of Appeals for the Fifth Circuit, which said Texas engaged in “impermissible viewpoint discrimination” and thus violated its free-speech rights.
The Supreme Court sided 5-to-4 with Texas and ruled that denying the license plates did not run afoul of the Constitution. In the decision, Justice Stephen Breyer said that the issuance of license plates represents “government speech” and thus is not subject to “the First Amendment rules designed to protect the marketplace of ideas.” In other words, governments are allowed to make viewpoint determinations of their own — and do all the time — and are only beholden to the democratic process to judge the value of what is said.
“When the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says,” Breyer wrote, and then continued: “Were the Free Speech Clause interpreted otherwise, government would not work.” He offered examples where government promotes programs and ideas, like vaccination drives and recycling programs, that might not be universally supported. According to the court, government has the freedom to select the views it wishes to espouse. And in this case, Texas was ruled to be within its rights in rejecting what the Confederate flag stands for and denying the request for the plates.
This pragmatic, no-nonsense approach is signature Breyer — for posterity, he even included an appendix with the proposed license-plate design — which may explain why Thomas joined him and his colleagues. Never mind that Thomas is a strong respecter of states’ rights and may indeed understand why Texas made the judgment call it did — he’s not one to second-guess democratic choices. But there’s also the specter of Virginia v. Black, a 2003 case where Thomas, dissenting alone, said that there are “certain things” — in that case, cross-burning — that “acquire meaning well beyond what outsiders can comprehend.” He said the practice crossed the line into the “profane,” and given the weight of history in Virginia and the rest of the South, it couldn’t be considered “speech,” but “conduct.” And thus the First Amendment was no bar to criminalizing the act.
“And, just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment,” Thomas wrote, “those who hate cannot terrorize and intimidate to make their point.”