A case currently being reviewed by the United States Supreme Court is turning Confederacy enthusiasts and liberal civil rights advocates into bizarre allies.
The court is considering a lawsuit brought by the Texas chapter of the Sons of Confederate Veterans (SCV), a group of male descendants of Confederate soldiers, against the state's Department of Motor Vehicles board, which denied their submission of a specialty license plate featuring the Confederate battle flag.
"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," the board said when it decided against the plate in November 2011.
The board's rationale was that the personal preference of individuals or groups cannot force government agencies to express messages that appear to speak for the state, as on government-issued license plates. The Confederate flag is permitted on license plates issued by nine of the 50 states.
Personalized license plates are a lucrative business in Texas, where as many as 877,000 vehicles carry them. These specialty plates earned the state some $17.6 million last year alone, according to the Associated Press.
The central question is whether specialty plates issued by the state represent government speech or the expression of the individual motorist.
"The plaintiffs have every right to festoon their cars with bumper stickers or other images that display the Confederate battle flag," former Texas Solicitor General Jonathan Mitchell remarked to NPR. "But they can't compel the state of Texas to propagate the Confederate battle flag by displaying it on state-issued license plates."
People in favor of the plates disagree, arguing that because Texas opened up the design of license plates to the general public, the state can't possibly consider as its own each of the nearly 450 messages available for motorists to select. They believe that censoring messages it doesn't like — no matter how odious — violates freedom of expression under the First Amendment.
"This case is not about the Confederate flag, it is about censorship," Steven Shapiro, legal director for the American Civil Liberties Union, which is backing the SCV lawsuit, said in a statement to VICE News. "Texas was surely correct in believing that many Texans are offended by a flag that served as a banner for those who supported slavery and segregation, but having chosen to sell specialty license plates for profit, Texas cannot pick and choose the plates it approves on ideological grounds."
Does Texas own the message on its license plates?
During presentations before the court on Monday, the justices expressed varying reservations with both sides of the argument.
Justice Ruth Bader Ginsberg pointedly asked the SCV's counsel whether the law should allow Nazi imagery, radical Islamist slogans, or the promotion of illegal drugs in addition to the Confederate flag — to which he unconditionally answered in the affirmative, even when Justice Elena Kagan raised the question of racial slurs.
Chief Justice John Roberts appeared to emphasize that Texas had put itself in an awkward position by developing a large market of specialty plates.
"If you don't want to have the al Qaeda license plate," he said, "don't get into the business of allowing people to buy… the space to put on whatever they want to say."
The governments of 11 states are supporting the prerogative at the core of Texas' argument, while a number of groups, including several liberal ones, have thrown their weight behind the Confederate descendants by filing amicus briefs to the court.
"What the state has said is, 'All comers are welcome to design a specialty license plate,' " Gregory Lipper, a senior litigation counsel at Americans United for Separation of Church and State, told VICE News. "Once they've done that, they can't then turn around and say, 'Well, your message is going to be excluded because we don't like it or because we think it's offensive.' "
This logic would imply Texas' supposed ownership of the speech on hundreds of specialty plates that it has approved, promoting everything from private companies and burger joints to out-of-state universities, Lipper said.
He added that if Texas were to censor the Confederate flag, it would set a precedent to then censor all kinds of unpopular speech.
"At the end of the day, Texas can't have it both ways: if it wants to open up its license plate program to all different types of speech it can't then single out certain unpopular messages," Lipper said. "We may not like the Confederate message on the particular license plate at issue, but at the end of the day, the First Amendment protects that sort of thing."
The Texas Attorney General's office did not respond to a request for comment.
"We're hoping that the Supreme Court follows the Constitution and gives us the same First Amendment rights as everyone else in the country gets," Johnnie Holley, a SCV member from eastern Texas, told VICE News.
Holley said the flag is not racist.
"To say the flag is about slavery is ridiculous," he added. "The KKK, yeah, they carried the Confederate flag but they also carried the Stars and Stripes. I don't like that people are offended by it but I'm sorry, let's be realistic — you can't really go through life without being offended by something. It doesn't really offend us, we're proud of it. That was the flag that our ancestors fought under when they defended their homes and property from foreign invaders."
As for the irony of civil rights groups like the ACLU fighting alongside diehard conservatives, Lipper noted that it's not all that rare, pointing to a similar alliance being forged in Holt v. Hobbs, when the court considered whether a Muslim man had a religious right to keep his beard in prison.
"In that case you had both conservative and liberal organizations in support," he said. "In this case, we may not like the particular private speech at issue, but we can acknowledge the importance of protecting it."
But the fact that the plates might be constitutional doesn't make them any less racist, critics say.
"The legality of the state refusal is quite murky. Whether or not it can survive this challenge, I just don't know," Mark Potok, a senior fellow at the Southern Poverty Law Center, told VICE News. "But there's no question that the Confederate battle flag stands for the Confederacy, which was absolutely built on the cornerstone of white supremacy."
"The idea that the Civil War was somehow not about slavery is a false propagandistic claim by people who don't know what they're talking about," he added. "The SCV has posed for many years as a mere heritage organization, a kind of history club. But the reality is that there are some very strong elements within it that are patently racist."
In 2011, the group's Mississippi chapter launched an unsuccessful campaign to honor Confederate Lt.-Gen. Nathan Bedford Forrest with a specialty plate. Forrest was also a millionaire who built his fortune largely on the slave trade, and went on to become the first national "grand wizard" of the Ku Klux Klan, though Potok noted that he later distanced himself from the racist group.
"It would be quite a thing if the court found that a group called the Friends of Adolf Hitler could demand a plate with the Fuhrer's photograph on it," Potok said, echoing Ginsburg's line of questioning. "Or an ISIS plate."
For Holley, the prospect of cars driving around Texas with the black and white flag used by the Islamic State on their license plates would just be part of living in America.
"We worry about that, but that's the problem you have when you have a country that's based on freedom and freedom of speech," he said. "If you don't like people, you know, they have to have the same freedom as everybody else."
The court is expected to rule on the case sometime in June.
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