The confederate flag hasn’t had a week this bad since April 1865. Coming just days after nine people were murdered in a historic church in Charleston, some of America’s largest retailers and even the makers of the Dukes of Hazzard’s General Lee toy car said they would be putting the kibosh on confederate flag merchandise. Can it even be them darn Duke boys’ ride without the stars and bars? Oh well, the free market, and not the government, has spoken. These are privately owned companies, some of which are based in the south, choosing to remove these products on their own accord. And that’s the important thing to point out to anyone saying these moves violate free speech rights. No one is stopping you or I from raising the confederate flag on our property or wearing it proudly (or tackily, like any flag-themed fashion, in my opinion). In fact, with the national focus squarely on the tragedy in Charleston and the backlash against the flag growing, sales of Confederate flag related merchandise have skyrocketed.
According to the New York Times, one web retail giant has seen sales of flag-themed items spike 5,000 percent as consumers rush to stock up. Nor are the calls by South Carolina Gov. Nikki Haley and Mississippi lawmakers to remove the flag from its state capital and state flag, respectively, a violation of First Amendment rights. These properties belong to the public. And if the public in these states choose to fly a new flag, as South Carolina did in 1961 when it decided to raise the confederate flag over its capitol, it has every right to do so.
On the other hand, the recent 5-4 ruling by the Supreme Court that found license plates are a form of government speech and Texas is free to reject a proposed design that features the confederate flag, is a bit murkier. In the majority’s ruling, justices argued that specialty license plates are the domain of the state (and “it is not barred by the Free Speech Clause from determining the content of what it says,” Justice Stephen Breyer wrote) and not of the individual who paid to receive and use a specialty plate. But in a state where residents can order and use specialty license plates with messages like “Choose Life,” “God Bless Texas” and “Dallas Cowboys”, are these (trite) messages in fact official viewpoints held by the state?
Rare is the day I agree with Justice Samuel A. Alito Jr., but he was correct when he wrote in the dissenting opinion that few people would “really think that the sentiments reflected in these specialty plates are the views of the state of Texas and not those of the owners of the cars?” When Texas turned down a license plate design featuring a confederate flag, the state’s board of the Motor Vehicles Department said many people associate that flag “with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.” That might be true, but once the state decided to offer vanity plates to its residents for purchase, it shouldn’t be in the business of picking and choosing favorites or which ones will offend our delicate sensibilities. That’s not something for any government to decide. It should be up to each individual to decide what offends and what does not. And to express my disapproval with the Court’s ruling, I think I’ll go burn a confederate flag.