Governments can speak, but what will they say?

REUTERS/Jason Miczek

Debates are raging about the Confederate flag after Dylann Roof, who used the flag to propagate hate, allegedly gunned down nine black residents in a church last week.

The morning after the murder, coincidentally, the Supreme Court sided with Texas in denying a group’s request to have a specialty license plate featuring the Confederate flag.

In America, because of the First Amendment, speech is widely protected, even speech that might be hateful. Individuals can brandish swastikas, flags or say what they want, even if their language or symbols are despicable or nasty to some.

But when government speaks, it’s different. The First Amendment does not apply. The decision in the Supreme Court case, Walker v. Texas Division, Sons of Confederate Veterans, greatly expands what counts as government speech, law professors say. A narrow 5–4 majority found that a license plate, labeled with the state’s name, is government speech, and therefore Texas could reject a group’s proposal to feature the Confederate flag on specialty license plates.

“In Walker, there was a question about whether Texas could control the message on the license plates, or whether it had to be neutral and permit whatever plates the public proposed, regardless of viewpoint,” says Leslie Kendrick, professor at the University of Virginia School of Law.

Texans can still put a Confederate bumper sticker on their car, or paint their whole car with the rebel flag if they want, but the state has made the call that it doesn’t want to sponsor it.

In South Carolina, it’s not so controversial.

“It’s very clear the state of South Carolina is speaking,” Boston College law professor Mary-Rose Papandrea says. “The state decided to fly the flag.”

Now the decision facing lawmakers in South Carolina is what they, as government representatives, want to say.

“The timing of the Walker decision does underscore that the government of South Carolina does have the power to change this, and that some other Southern states have chosen not to associate with Confederate symbols in other contexts,” Kendrick says.

People wear or wave symbols to show what they stand for. Dylann Roof stood for white supremacy and used guns and the Confederate flag to show it. Others might believe that flag represents their heritage, and can wave it freely from their homes, cars or bodies. This week, massive retailers Wal-Mart, Amazon and eBay made a decision about their values by discontinuing the sale of Confederate flag items.

The Supreme Court made clear last week that Texas need not be neutral in its speech. The state has now spoken about what it wants government-affiliated symbols to say. Virginia’s governor, after the Walker decision, is seeking to change specialty plates that bear the Confederate symbol. Wednesday, Alabama’s Republican governor made the call to lower the rebel flag from the Capitol, telling reporters it was “the right thing to do.”

South Carolina, you are free to speak. After this tragic week, the country is watching. What will you say?

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