Commentary


Censoring the Confederate Flag Is Unconstitutional


by John W. Whitehead
May 17, 1999

Specialized license plates in Virginia contain the Freemason symbol,
Kiwanis Club and Harley Davidson logos, even a bowling ball. The symbol of
the Sons of Confederate Veterans, however, will not be on anyone's license
plate, according to a recent vote in Virginia's General Assembly.
The Virginia chapter of this 103 year-old organization petitioned the
General Assembly for a specialized license plate. According to state law,
all specialized license plates must be approved by the General Assembly.
All previous petitions have been approved-until now, that is.
The Sons of Confederate Veterans' (SCV) is a non-profit educational and
historical organization whose members are related to veterans of the
Confederate forces. Their emblem is a Confederate flag. Copyrighted in
1936, their logo is representative of a benevolent multi-racial group
devoted to historical and ancestral endeavors involving the Confederacy.
Unfortunately, for some people, the Confederate flag, often associated with
racist organizations like the Klu Klux Klan, invokes images of
discrimination and violence.

As a result, discussion of the SCV's petition, particularly their logo,
incited heated debate in the Virginia House of Delegates. Those opposing
the use of the logo recounted experiences of racism involving the flag.
Proponents of the petition recalled instances where the SCV publicly
condemned racist groups and their "misuse" of the Confederate flag. In the
end, it was the negative connotations rather than the historical context of
the Confederate flag that reigned. As a result, the House denied the SCV's
request to incorporate the logo on its specialized plates, only permitting
the SCV to include the name of the organization.

With the rise in hate crimes and the focus on political correctness, there
is heightened scrutiny of anything that may resemble or remind people of
racial discrimination. The SCV logo is one of the latest victims of that
political correctness. The other victim is the First Amendment.
The First Amendment was penned by the Framers of the Constitution to
protect our ideas and speech, both the popular and the unpopular. In fact,
it is unpopular speech that primarily is protected by the First Amendment.
The real issue is our constitutional freedom of speech. It is not whether
the Confederate flag represents racism. The U.S. Supreme Court has held
that it is "a bedrock principle underlying the First Amendment...that the
government may not prohibit the expression of an idea simply because
society finds the idea offensive or disagreeable." The General Assembly's
denial of the SCV logo merely because it may represent an unpopular
viewpoint is, thus, unconstitutional.

In 1997, a similar license plate case arose in Maryland, involving the
Maryland chapter of SCV. The Maryland Motor Vehicles Administration
attempted to recall SCV plates because of controversy surrounding the
Confederate flag logo. However, the federal district court in Maryland
ordered the plates to be reissued. Recognizing the paramount importance of
preserving the First Amendment protection of speech, the judge wrote, "The
purpose of the First Amendment was-and remains-the protection of the
expression of unpopular sentiments from governmental reprisals or censorship."
There are currently 150 specialized license plates in Virginia,
representing universities, special interest organizations and military
groups-some of which contain unavoidably "unpopular sentiments." A few of
the specialized plates with logos include the Shriners, the AFL-CIO, and
the NRA. There is even a specialized plate picturing a tobacco leaf. In
light of the recent tobacco litigation, it may not be long before the
tobacco leaf becomes an "offensive" symbol not worthy of a position on a
Virginia license tag. And after recent school shootings, many could argue
that the NRA symbol incites objectionable thoughts of guns and violence.

We cannot, however, allow the censoring of something simply because it may
be controversial. If we allow the General Assembly's decision to go
unchallenged, we enable the government to continue its sanitization of our
free speech, discarding anything deemed disturbing or offensive. The
Virginia legislature already violated the First Amendment in order to
prevent any perception of racism or discrimination arising from something
so innocuous as a license plate. What's next?
ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

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