Texas Confederate Battle Flag:
License plates, racism, and free speech
By Lamar W. Hankins / The Rag Blog / October 25, 2011
At first glance, the effort by the Sons of Confederate Veterans to have a Confederate Battle Flag license plate approved by the Texas Department of Motor Vehicles may seem like a conflict between offensive speech and free speech, but the matter is more complicated than that simple contrast suggests.
By way of disclosure, I am a descendant of Confederate soldiers, but I have never considered participating in a group that sought in any way to promote that war as a brave, noble, and just venture. To me, the Confederacy engaged in treason against the United States. A founder of Texas, Sam Houston, opposed secession, but was overridden by those concerned with the economics of slavery, a practice that permeated at least half of what is now the State of Texas.
As recently as 30 years ago, I knew where old slave quarters were located in Georgetown, Texas. The artifacts of slavery can be found all over the eastern half of the state, along with Confederate relics. These reminders of a tragic past are not a part of history in which I take any pride.
The Confederate Battle Flag has been to me a symbol less of the Confederacy than of the Ku Klux Klan. Rightly or wrongly, whenever I see that symbol, I assume the person displaying it is racist. I avoid such people if I can.
But even if that flag had never been used by those opposed to civil rights, I would not see it as something to revere. Why would I revere a symbol of treason that is inextricably tied to the maintenance and promotion of slavery unless I favored those positions? I don’t want to honor my progenitors for their willingness to go to war against the United States of America to preserve a system that permitted the owning of other human beings.
Bravery and courage on behalf of folly are nothing to be proud of. Confederate Texans weren’t defending Texas, as Texas Land Commissioner Jerry Patterson asserts in support of the Confederate Battle Flag license plate. They were trying to destroy the Union. They set in place animosities that linger to this day.
Their insurrection was a terrible mistake, and I’d like to keep that mistake in perspective, not celebrate it. But that is a personal choice, deeply rooted in the right of all Americans to engage in speech of their own choosing, no matter how offensive it is to others. But the Texas organizational vanity license plate system creates a problem even broader than whether the Confederate Battle Flag should appear on a Texas license plate.
The way the Texas Legislature chose to establish organizational vanity plates is at least foolish, if not unconstitutional, but it was another way to raise some money for the state without raising taxes, an approach dear to the heart of almost all legislators. If a tax-exempt, nonprofit organization wants to have its own organizational vanity plate, it must find a state agency to sponsor the vanity plate or get the Department of Motor Vehicles to sponsor it. Once a cooperative state agency is found, the application is presented to the Department for approval.
The Sons of Confederate Veterans secured the sponsorship of Patterson’s Texas General Land Office for its application for their vanity license plate. The Texas Department of Motor Vehicles license board reached a tie vote (4-4) when the matter came up for consideration this past summer, so for now the application has not been approved. But Gov. Rick Perry has appointed a ninth person to the board, so if it comes up for another vote, the matter could remain the same if the new appointee abstains, or be decided one way or the other.
The problem with this system is that an organization is required to get a governmental agency to support its application. This requirement is deeply offensive because it will usually, if not always, assure that organizations promoting controversial views will not be able to have organizational vanity plates.
If a group favoring a woman’s right to choose an abortion wants an organizational vanity plate that has a logo that says “Support a woman’s right to choose,” which governmental agency will be its sponsor? I can’t imagine that any state agency would do so. What if an atheist group wants a vanity plate that says “You can be good without God”? Is there any state agency that would ever sponsor that message?
What about a socialist group that wants to promote its message “Jesus was a Socialist”? No state agency would touch that one. If the Texas Medical Association wanted a special license plate that read “Support Medical Marijuana,” I doubt that any state agency would be the sponsor. And what about a plate that honors the service of conscientious objectors who have done alternate service in lieu of serving in the military? About a dozen specialty plates honor veterans of various sorts, but none honor conscientious objectors.
A few other ideas that would not likely find support from any Texas government agency are “Jews for Jesus,” “Ban all abortions,” “Keep the races pure,” “Republicans for interposition and nullification,” “Wives should obey their husbands,” “Government prayer pleases God,” “The Bible is infallible,” “Gays violate God’s law,” “Evolution is a lie,” and dozens of other bumper-sticker thoughts supported by one group or another, but not popular with everyone.
The Texas organizational vanity license plate scheme discriminates against unpopular viewpoints, just as it may discriminate against the views of the Texas Sons of Confederate Veterans. It’s a tossup right now just how unpopular their viewpoint is, about the only content standard the Department has to follow.
The law provides in part: “The department may refuse to create a new specialty license plate if the design might be offensive to any member of the public, … or for any other reason established by rule.” The Department could not point me to any such rules it has adopted regarding content (though there are rules about size and legibility), and I could find no content rules in the Texas Administrative Code, where such rules would be published.
Many specialty plates are offensive to me, and I’m a member of the public. There is one for the Boy Scouts, for instance. I find the Boy Scouts license plate offensive because the Boy Scouts discriminate against atheists, agnostics, and gays. I don’t like the ones with religious messages: “God Bless America,” “God Bless Texas,” “Knights of Columbus,” and “Texas Masons.” But apparently the Texas Department of Motor Vehicles didn’t take my offense into consideration, in spite of the law.
With such an amorphous, broad, non-specific standard, discrimination on the basis of the message proposed by some organizations is inevitable. In fact, I don’t see any way to avoid content discrimination on proposed speech under this scheme.
It is never permissible for the government or an agency of government to censor the views of its citizens. To arbitrate the views we can express on license plates is an improper role for government to play. But short of eliminating organizational vanity license plates, there may be a solution to this constitutional dilemma.
The Texas Department of Motor Vehicles could produce a generic design that leaves a small block of an appropriate size into which anyone with such a plate could paste whatever message the person chooses. In this way, all Texans — including the Texas Sons of Confederate Veterans — would be free to let everyone know their position on any issue, no matter how offensive or how popular. With this arrangement, the government can make some extra money and the Texas Sons of Confederate Veterans should be as pleased as a hog in mud.
[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]