The recent killing of nine worshipers at a church in Charleston, South Carolina, by a young white supremacist reminded us of the importance of racism in American society — something that we Europeans cannot fully grasp.
In the world of law, that racism can be easily found in the police violence toward black citizens or in the huge percentage of black prisoners, mainly youngsters — all of this within a policy of massive incarceration, which is not conceivable to us.
Interestingly, on June 18, in the Walker v. Texas Sons of Confederate Veterans case, the U.S. Supreme Court examined an issue that has become topical after Charleston murders: the official use of the Confederate States’ flag, used by the secessionist states that defended slavery and black men’s inferiority in the American Civil War (1861-1865).
The Supreme Court had to decide whether or not it was constitutional to refuse the creation of license plates with the Confederate flag. In Texas, as long as there are 300 tenderers, and after approval, the state can sell license plates with special messages, text or images that range from the promotion of tourist areas to showing love for cats and dogs.
The Sons of Confederate Veterans association had proposed the creation of a license plate with the Confederate flag, but the department responsible for issuing the plates declined the request, thus taking the matter to the courts. The District Court backed the department, but the Court of Appeals decided that the prohibition was unconstitutional, since it violated the freedom of expression of those citizens who wanted to show license plates with that message. The case went then to the Supreme Court.
The key issue was to know whether the license plates constituted a public forum where freedom of expression is the matrix — and in that case, the state could not forbid certain opinions by censoring the plates’ contents — or whether they were the responsibility of the government, that is, if the messages conveyed still corresponded to a governmental expressive activity. In that case, the government could only convey what it wanted to and was not obliged to respect citizens’ freedom of expression, in the sense that it didn’t have to accept all kinds of content.
In addition to the legal framework, the oral discussion of the case in the Supreme Court had revealing moments, such as the fact that, at one point, one of the judges asked the association’s lawyer if the state was obliged to authorize, manufacture and sell a license plate with a swastika, and he answered yes. The following question was more topical and blunt for the American society: What if 300 citizens wanted to put ‘jihad’? Should the state authorize, manufacture and sell it? The lawyer, consistently, said yes. Most likely, this hypothesis will have been regarded as worrying….
For sure the Supreme Court decision was divided: Five judges ruled that the state of Texas could constitutionally forbid these license plates. For the majority, they were still the language of the government, and the state could not be obliged to convey messages it did not want to; it had the right to defend its politics and convey its opinion, and not that of others. The precedent invoked was the 2009 Pleasant Grove City v. Summum case, in which the Supreme Court ruled that the authorities of Pleasant Grove had the right to refuse to display a monument made by the religious organization Summum at a public park — even though other private monuments had been accepted — since the message conveyed would be understood as coming from the municipality.
The four dissenting justices argued that license plates constituted a public forum where freedom of expression could not be restricted. It was evident to them that anyone who saw a message such as “I’d rather be playing golf” (which already exists in Texas) would never think it was an opinion from the government of Texas, and the same logic could be applied to the Confederate flag.
It seems to me that license plates are a hybrid language — partly governmental and partly private — so it makes sense that the state does not want to associate and promote a message with which it disagrees.
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