Wednesday, March 25, 2015

A quantum of umbrage: When you've crossed the line in Texas, it's time to rethink

(Updated below.)

So a case from the Lone Star State has landed before the nine wise souls on the Supreme Court:
The next great First Amendment battleground is just six inches high. It is a license plate bearing the Confederate flag.

Nine states let drivers choose specialty license plates featuring the flag and honoring the Sons of Confederate Veterans, which says it seeks to celebrate Southern heritage. But Texas refused to allow the group’s plates, saying the flag was offensive.

On Monday, the Supreme Court will hear a challenge to that decision in Walker v. Sons of Confederate Veterans, No. 14-144, a case that considers the limits of free expression and the meaning of a charged symbol that many associate with secession and slavery.

Texas has hundreds of specialty plates. Many are for college alumni, sports fans and service organizations, but others send messages like “Choose Life,” “God Bless Texas” and “Fight Terrorism.” [. . . ]

Today, the flag appears on license plates in Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee and Virginia.

I've been following this story since it floated to the surface last summer. The p3 position remains unchanged: This is as clear an instance as you're likely to find of Nothstine's Law of Free Speech: If defending freedom of expression doesn't hurt at least a little, you're probably not doing it right.

(Plus, confederate memoribilia can serve a second useful purpose: It lets you know who you're dealing with while they're still at a distance.)

Paul Campos summarizes why Texas's case, however admirable on its face, is likely to lose: It's predicated on the flimsy argument that novelty plates represent speech by the state, rather than by the vehicle owner – an argument Campos dispenses with pretty handily.

And he adds:
More seriously, what’s most objectionable about confederate flag specialty plates isn’t that some people might mistakenly think that the Texas state government is endorsing the political views of people who display confederate flags (they will likely not commit this error). Rather, it’s conceivable that people will conclude that the state is willing to do just about anything to make a buck, including turning its license plates into a free-fire advertising zone, where anybody can sell anything as long as they’re willing to give a cut of the proceeds to the Lone Star State.

There’s a perfectly constitutional way for Texas not to allow people to feature confederate flags on the state’s license plates, which is not to sell the right to advertise their political beliefs on those plates to anyone to begin with. But that would require ever-so slightly raising some tax rate or another to make up for the lost revenue, so the state would rather try to violate the First Amendment.

That's just a little extra irony to take along with you: Texas finds itself in the position of having to float a wobbly free-speech argument because it's been caught up in the post-Reagan article of faith that it's better to sell off every square inch of public space (whether it's a few square inches on a license plate in Texas, a whole turnpike in Indiana, or all the federal land in Nevada) than to raise the embarrassing idea of asking people to pay for their share of the commonwealth.

Update: And give Texas credit for at least this: They're not just against free speech in the small things. They're against it in the big ones, too

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