Law and Symbolism at the Supreme Court

Did the state of Texas ban display of the Confederate flag on cars and trucks? No - it just decided not to produce that design as an official state document.

If Justice Alito was able to produce pictures of valid Texas license plates featuring all of George Carlin's seven words you can't say on TV, he might have had a point. But states have been blocking attempts to allow even one license plate to bear words we hear all the time, because they are seen as too offensive.

So well done, Texas and Supreme Court.

The license plate decision was correct as was today's decision upholding the Affordable Care Act subsidy program. The latter was pretty predictable, assuming some of the conservatives actually follow the pretty basic rules of statutory construction, as Roberts and Kennedy did in joining the four liberals.

"The gutting of the Voting Rights Act of 1965 two years ago in Shelby County v. Holder" was an abomination and a horrendous example of judicial activism at its worst.

The license plate matter in Texas was not an issue worth driving a further wedge between race relations, as the second most populous state in the country to willfully "stoke the embers of hate" it is clearly preventable, they made the appropriate choice.

Yet with immigration being such a hot topic issue and Texas seems to be the bellwether of comparators, might the term "Remember the Alamo" or the Alamo itself be deemed a racist reminder of times past? Mind you this was when Texas gained its independence from Mexico.

I live within 50 miles of a huge Confederate battle flag on a monument placed by the Sons of Confederate Veterans on private land within this decade. The flag's message does not honor heritage; it is an ugly reminder of racism which has not been eliminated by education or time. It is unlikely the flag can be removed. And that may be constitutionally supported.

The symbols honoring the Confederate rebellion against the United States have no place on any government property, including license plates as the recent Supreme Court decision ruled. The rebellion by the Confederacy was treason done for the purpose of continuing the enslavement of human beings. The use of the Confederate battle flag and the placement on government property of statues honoring Confederates was a reaction to the energy of the Civil Rights movement of the 1950s and 1960s. These symbols were intended as insults and should be removed from government property.

I am, however, troubled by combining the cleansing of government property with the shaming of private citizens--however much they deserve to be shamed. Although I am shocked that Amazon stocked 29,000 symbols of the Confederacy, it does seem as if their removal is just too easy a way to confront the real racism of the purchasers of those items. I don't want the Sons of Confederate Veterans to feel like honored martyrs because they can't buy a flag to wave in protest.

Government property like government speech differs from private property

It is interesting that Justice Thomas is normally Conservative BUT when an issue strikes close to home, he sides with the Liberals.

Guess blood trumps ideology.

The Conservative Justices are not upset with the outcome of this case, and the Majority does not believe themselves to be on firm legal ground.

For some reason, lawyers are horrified by the phase: "Hard cases make bad law." Greenhouse states in her article: "The case was a close call." It wasn't a close call on legal grounds. The State of Texas ceased to engage in government speech when, for a fee i.e. cash, it allowed private citizens to put their own messages on the license plates. There is an "easy" way for Texas to reclaim its government speech in this matter. Produced license plates only containing messages created by the government. I put "easy" in quotes because it would involve a government giving up some cash flow -- and that simply cannot happen.

Given that knowledge, the Supreme Court did the right thing. It disregarded the law in this particular instance and said Texas doesn't have to include things on a private forum it created.

Defenders of free love have no right to a license plate with an unambiguous visual depiction of a sexual act or an obscene word about such an act. If violence as well as sex can be obscene, the Confederate battle flag stands for various obscenities (such as the refusal of many Confederate units to accept the surrender of black Union troops, or the use of this flag as part of the lynchmob terrorism whose threat kept segregation in place). Likewise, the swastika or a Japanese battle flag such as the meatball with rays would not be allowed.

Southern soldiers fought valiantly for states' rights, but the right they found worth dying for was the right to keep most blacks enslaved and limit free ones so they did not by their existence give the slaves ideas and hope. They fought bravely defending a cause that was unworthy of them -- immoral, antithetical to our declaration of independence, and harming most of them economically since they competed with slaves rather than owning them.

Coming to terms with this part of their legacy is difficult, since it entails untangling the threads of good and evil that ultimately constitute our humanity. But the standard Southern response seeks to evade rather than conquer this difficulty. If Southern ancestors are admired for their courage, this response does not do them proud because it shrinks from peering into the depths of the Southern soul.

We'll see how some of the people who like this call like it when there's an ultimate decision on whether a state can agree to "Choose Life" plates but reject "Choice" plates. So far--that's allowed...

Thank you Linda Greenhouse!

Helping Americans understand this extraordinary, always loaded aspect of our democracy is a critical public service and, because of your brilliant work, we are in a good position to hang on for the ride that's just ahead, the ride into the next court, with appointments from a woman president, goddess willing.

The Confederat flag is a singular item. It is the battle flag of traitors. Those traitors attacked their own country to force the US to continue to a
Be allowed to own black human being. It is a singular symbol. It's not about "offense"; it's about treason and racism.

Thankfully, we now know that Texas Department of Housing and Community Affairs v. The Inclusive Communities Project broke the "Greenhouse way" as well. Today was a very good day at the Court!

Lacking in this analysis, and in most analysis I read is any even casual fumbling with semiotics.

What the southern flag may mean to you, Ms. Greenhouse, is not what it may mean to the 23 year old Marine sitting in the Green Zone.

The question libertarians have is why your interpretation of the flag "occupies the field" of meaning, and excludes all other interpretations.

We can spare any nonsense discussion of your "meaning" being the "objective" one, I presume.

I tend to agree with the license decision, but not you are not troubled by "government" speech but apparently think "corporate speech" is the stuff of fascist dystopias.

I disagree.

"Hillary Clinton’s Supreme Court Litmus Test: Overturn the Case That Legalized Anti-Hillary Documentaries:"

http://reason.com/blog/2015/05/15/hillary-clintons-supreme-court-litmus-te

The Supreme Court has not "dismantled" the Civil Rights laws. When the Supreme Court overturned the Civil Rights Act, they were very clear. (I am serious, you can read the decision yourself.)

The Supreme Court made it quite clear that Congress could reinstate the Voting Rights Act at any time if current data was used to determine if states were violating the terms of the Act. The Act was overturned by SCOTUS because it was still making determinations about state compliance based upon data from 1972.

For the Voting Rights Act to be meaningful, it needs to look at compliance by the states form CURRENT data. Don't believe me? Read the decision.

Ms. Greenhouse:

It was interesting and surprising to see the Court preserve the "disparate impact" test for housing discrimination in today's decision on the FHA. i wonder how much effect that might have on newer state "voter-fraud" laws that have disparate impacts on minority voting.

We shall see...

I, too, was struck by how the Supreme Court's license plate ruling coincided with the South Carolina flag brouhaha. It's shameful that South Carolina required this kind of flagrantly racially-motivated massacre to nudge its politicians toward taking down the flag. But the flag is a "pure" example of government speech. There's no question about attribution: the state of South Carolina was conveying a message--however offensive and deplorable.

The majority got it wrong on license plates, though. As they say, bad facts make bad law. States are minting money with their specialty plates, and Justice Alito was entirely correct that Texas generally was happy to accept funds and issue specialty plates to almost any group that applied. Government speech should only be invoked when attribution is clear and it is fairly unambiguous that the government is speaking. Here, Texas created a forum for speech and engaged in viewpoint discrimination. Should Texas permit Confederate flags on TX license plates? Certainly not. But TX also shouldn't benefit from the government speech doctrine when it makes license plates an open commodity.

Even if license plates seem trivial, the majority's ruling distorts the government speech doctrine--already a mess--and gets away from its foundation: if the government truly is speaking, it can say what it wants without implicating the First Amendment. By the majority's logic, a state can allow a flag plate but deny a gay pride plate. That's hardly a victory.

In my opinion the court got it wrong in this case. If one potentially offensive message is allowed on the states plates then any and all should be allowed. The solution, of course, is to have no "Vanity Plates" issued. They were introduced for the purpose of raising revenue and I suppose they've done that quite well.

For my part we can go back, here in Wisconsin, to "The Dairy State" or some such slogan, and then pay for our road maintenance with clearly defined taxes. If that means we all pay a buck more for our plates then so be it.

I'm so glad that someone else noticed that decision amidst the ruckus that followed. Justice Alito's comment only served to bring why keeping the Confederate flag around OVER PUBLIC BUILDINGS empowers those who continue to propagate the worst parts of the old South, and conjure what must feel like state-sponsored terror or shame to the rest of us. It was nice to see a ruling like this go the right way for the right reasons, without all of the sudden pressure from the Charleston fallout. I don't know when I'll get to say this again on a social issue, but "Go Texas!"

The Constitutional issues are fascinating and I think the Court majority got it right. The government can and must determine content of its "speech" and does so in myriad ways every day.

This issue, and the Confederate flag issue, has spawned a small epidemic of false equivalence.

I recently wrote a controversial piece on Huffington Post. http://www.huffingtonpost.com/steve-nelson/dont-remove-the-confedera_b_7...

Among the many frightening and angry responses, this one was most common:
"What if it was the rainbow flag. Would you liberals take that down???? That flag is offensive to me!!!" or words to that effect.

Of course the rainbow flag is a symbol of inclusion and love. The Confederate flag is a symbol of bigotry and hatred. While few State Capitols may choose to speak with a rainbow flag (we can only wish!), a government entity must be free to recognize and act on this crucial distinction and not submit to the notion that both are "speech" and thus must be honored equally.

Because some are offended, a class of speech is outlawed.

This is not a good thing. There is no constitutional protection against being offended.

Everything has the potential for offence and this precedent is chilling.

Not to worry, Linda. Justice Kennedy has now spent long enough on the DC cocktail circuit to vote the way you want. The decision allowing "disparate impact" lawsuits to paralyze public housing decisions was decided just now, just the way you want. (In a society with real ethnic difference, EVERY government policy that considers expense or objective qualifications WILL have disparate impact, and lifetime judges in robes almost never consider a loss of efficiency or additional expense a sufficient basis for disparate impact.)

I'm glad for the Court's decision in this case, but I do find it puzzling that Texas had already approved a "choose life" license plate. Isn't that endorsing a certain political/moral viewpoint, just as approving the Confederate flag would have been?

Why is it OK for the Court to gut laws that Greenhouse disapproves of but wrong for the Court to gut laws that Greenhouse approves of?

Greenhouse claims that the Court gutted the Voting Rights Act 2 years ago. She works herself up into a froth of indignation over the Court's high-handedness.

In a series of decisions, the Court gutted Title VII of the Civil Rights Act of 1964 ("it shall be an unlawful employment practice ... to discriminate against any individual on the basis of race, etc." became: the Feds will withhold any federal contract from you unless you discriminate on the basis of race). Greenhouse was (and remains) a cheerleader for the Court's usurpation of Congress's role in our constitutional system.

Deja vu all over again? It is the "Greenhouse test" of Constitutional interpretation: Before the Court makes a ruling it should ascertain what outcome Linda Greenhouse would prefer, and it should rule accordingly.

I think Justice Alito was wrong in saying that the display of the flag on Texas license plates involved "some" people being offended. There are some symbols that express hate.
Burning crosses is one. That expression of "speech" should not be tolerated in the public space. The Confederate battle flag is another. It was flown by rebels motivated primarily by the desire to protect the right to retrieve slaves who escaped bondage and to extend slavery as the nation expanded. They were fighting against the legitimacy of the United States and many people suffered and died to defeat them. No matter if your ancestors fought valiantly for that cause, it seems wrong to celebrate it. That's especially true given the many years of suffering by both poor whites and blacks that followed the end of hostilities.
More recently, the flag is used as an expression of the idea that some people do not deserve civil rights. I'd agree that it would be wrong to prohibit its display by private individuals in their own spaces, although I think we should do a lot more to shame them. Governments should be able to identify and reject hateful racist expressions that involve the use of government resources or happen in environments that imply government support. In fact, I think they have an obligation to do so. Racist symbols do a lot more than "offend."

As a Canadian, I never understood what the confederate flag was, then I met a young S.C. man when I was a teen. He explained what it was, as seen from his perspective, as the son of an avowed racist. His father owned a bar in S.C. where the confederate flag was flown high above the bar. His father considered himself a confederate, he held no allegiance to the stars and stripes, but all allegiance to the confederate flag, and all it stood for, which was the superiority of whites over blacks. To me this was shocking. This mindset was as foreign as taliban forcing women to wear full body hijjabs. That it's socially acceptable for people to advertise this mindset in your culture was shocking. That people want to drive around with this as a badge is no different from emblazoning your vehicle and clothes in swastikas, or in images or isis fighters, we should take it as an assault on our way of life, because that's how it's intended. We should take a stand to defend our way of life and not be so fearful of offending people who hate our culture. This symbol is used to unite hateful angry people.
Why don't you fly the isis flag and argue that it's because you're proud of what your uncle is fighting for, you don't support the torture, but you support the cause, because the idea of a caliphate is a noble one. It's garbage and you know it. If you fly the flag, you are presenting yourself as a soldier of the movement, and in this case that means the subjugation of people of darker skin.

The Court has today upheld disparate-impact claims under the Fair Housing Act, with Kennedy writing for the four liberals. Lots of cautionary language, but a win nonetheless.

This is not a free speech issue at all. The issue is whether or not the government - at all levels - has the right to control it's property, e.g. flags that fly over state capitols or license plates it issues. Hateful symbols such as swastikas or any confederate flags have no place in this country. For any who think that confederate flags are not like swastikas, even a relatively cursory reading of actual American history would change your mind.
1. Millions of Africans were killed as they were taken for slaves, on the passage over to the new world and once they arrived here. By any standard that is a holocaust.
2. Millions of Africans were enslaved in this country from its inception through the end of the Civil War.
3. The Civil War was fought to preserve the southern way of life which meant the continuation and expansion of slavery.
Any and all symbols of that time should be removed from the public sphere except in museums. How can we as a country not understand that? The Germans understand it about their Nazi era which is why those symbols are banned. It is time for us to prove to ourselves and to the world that we both acknowledge and understand these facts and are willing to make appropriate apologies and reparations. There are no arguments by rational people against this logic. The same is true in Germany.

It was a close call on Texas's license plates, and as noted, events in Charleston made it the right one. Confederate flags are coming down across the country, in states and sellers like Walmart and Amazon. Today's Times has an article about calls to remove the Confederate symbol from state flags and to remove Confederate statues from the Capital and elsewhere in D.C.
Whether the Court will refrain from putting the nail in the coffin of disparate impact is a less hopeful prospect. Disparate impact theory, so critical for legal action in civil rights cases, just doesn't have the headline appeal of the Confederate flag or same-sex marriage. While I expect that supporters of same-sex marriage will be cheering a well-deserved victory, the decision in the Texas housing case is more likely to fly under the radar. And the Justices know it.

Well, I was wrong. Happy to be wrong on this case. Disparate impact survives.
Justice Kennedy came through.

We know the answer to Linda Greenhouse's question now. The answer is no, the Court will not cut the heart out of civil rights legislation. They made the right call in the Texas housing case.

As a common sense decision, I think it was a good one. And it's the first decision since forever that Justice Thomas got right. Is he mellowing in his old age? Or did his father hate that flag? Interesting.

The real solution would have been for Texas to simply do away with "special license plates" all together. In addition to the Confederate Flag, I am deeply offended to see motorist driving around my beloved state, with emblems from non-Texas SEC schools, like LSU, Alabama and Auburn.

In regards to Shelby v. Holder, why not have all voting districts treated equally?

Can you get a swastika license plate? Less than one percent of Texans are Jews.

Confederate battle flag? More than twelve percent of Texans are African-American.

Symbols become appropriated by people who exploit them for their own purposes. At that point their meaning changes.

I don't think a grapefruit and a swastika are equally deserving of free speech protection. Neither is the battle flag, especially on a license plate or the grounds of a state capitol.

Sometimes the Court displays an astonishing lack of understanding of the real world, especially about discrimination. Sometimes they seem politically corrupted.

There is much about this piece that is wrong headed.

In the eyes of many, myself included, affirmative action is, as practiced today, the very antithesis of civil rights. By definition, it gives preference to some ethnic/racial/gender groups at the expense of others. It is the opposite of equal protection under the law. Originally, affirmative action was developed to correct present and past discrimination, which was laudable and appropriate. No longer. Today it's rationale is "diversity," a concept no where mentioned in our constitution. There may be virtues to diversity in some circumstances, but achieving it through discrimination, which is what affirmative action today is all about, is just plain wrong. And should the Supreme Court choose to declare state sponsored affirmative action unconstitutional, which it has not yet done, it would be a good thing, and would, in fact support, and not undermine, fundamental civil rights.

As for "disparate impact" policies, as most often imposed by regulators today, they too are most often unjust, and should not survive judicial scrutiny. Discrimination is wrong, and the government needs to use our laws and Constitution to fight it. But there are many things that may have a disparate impact on different ethnic groups, races, or genders that do not constitute discrimination, plain and simple.

Civil rights means civil rights for all. That is what our government, regulators and courts should support.

The court, and especially Justice Thomas, react almost with shock to discover there is gambl -- er, racism aplenty enshrined in the law and behavior which contradicts their sunny-day assessments, and their shallow statements such as "the best way to eliminate racism is for the government [alone] to ignore race and racism". A shooting in Charleston by someone sporting the Confederate flag and endorsing the glorious fight against Northern Agression? That must be completely unrelated to the facts-on-the-ground that drive the voting rights act and affirmative action. The conservative block would appear to wear Panglossian glasses. Or else they let their fears drive their decisions.

What do black African Americans have to do or say to be treated with the same executive legislative and judicial governmental reverence, deference and honor accorded to any Confederate flag or symbol or personage or event?

American law is gender, racial, ethnic, sectarian, socioeconomic, colored, political educational American history. As noted by Oliver Wendell Holmes, Jr., American law is experience and history rather than logic or reason or morality or justice or fairness. You cannot separate American law from the symbolism of internal legal consistency. The problem with American law is not what is illegal. Instead it is what is legal. Slavery, Jim Crow and Native American genocide were all legal.

The liberals + Kennedy just prevailed this morning in the Texas housing case. May get buried in the Obamacare ruling aftermath.

The Supreme Court decision in Shelby County v. Holder didn't gut the Voting Rights Act. It merely determine that the act should be applied equally in all states. For example, the Justice Department cannot prevent South Carolina from reducing the number of early voting days while permitting New York, Pennsylvania, Rhode Island, Connecticut, New Hampshire, Maine, Delaware, Michigan and Minnesota to disallow early voting altogether.

License plates are a cheap price in exchange for the civil rights that are being abandoned in red states. But, it has been said, many times, that reasonable, fair-minded people are not fooled about Republicans efforts to become the party of George Wallace, et al.

By not allowing people to "proudly" display their bigotries/beliefs, whether through the Confederate flag, white-power symbols, etc, it makes it a little harder to confront the wrongs these people bring to our society. I, for one, think people should be allowed to display whatever symbols they desire, including those espousing the hateful lies such as those propagated about the valor and greatness of the South, so it's a little more obvious who my "enemy" is and thereby take appropriate action such as boycotting their businesses. We must confront racism face on -- driving racism underground makes it more difficult.

Let's not get carried away with arguments about rights and the Constitution. Did having the Confederate flag on Texas license plates materially advance the fortunes of the Republican party or the corporatist agenda? If not, the right-wing justices are not very interested (or anyway at least one voted against the rights of the Confederacy). Voting rights are a different matter.

The license plate ruling may seem liberal, while the feared civil rights rulings are the opposite.

However, both are an assertion of state power. The state can regulate speech on license plates. The state can do as it likes in civil rights matters.

The Roberts Court [refers tp allow the government to do as it likes, when that is how the question is phrased.

This was a great analysis, but my very liberal stomach goes a bit queasy about the principle of allowing "government speech" -- disguised as paid advertising on government property. Full-blown nausea erupts at the notion that government can discriminate based on viewpoint when doing so.

This is essentially a very conservative setback for the 1st Amendment.

Our Supreme Court was able to conclude by a narrow 5-4 vote that Texas has the right to not issue license plates graced with the swastika-like Confederate flag.

And six other Southern states offer the swastika-like Confederate flag to the motoring public.

How would the court have ruled if states issued actual swastikas on state license plates ?

The Supreme Court should have simply done the right thing and unanimously voted to ban license plate and state-sponsored hate speech, which includes the wretched Confederate flag.

This court is barely civilized.

We can assume that Justice Thomas, as the senior justice in the majority, assigned the opinion to Justice Breyer, right?

I've been thinking about this case and Charleston, too. How close the Court came to looking so out of touch with public sentiment. Chief Justice Roberts' words from several years ago often come back to me: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." He seemed to think that racism was over. After everything that's happened in our country recently, up to and including Charleston, I wonder if he has any regrets or embarrassment about that.

I would hope that recent events might open the eyes of the Roberts Supreme Court, but I would be very surprised if they did. This 5-4 Supreme Court has made a special effort to insist that racism no longer exists. They will destroy another protection and dare Congress to make new legislation, knowing full well they will not.

Simple to say that the "court" has turned to the dismantling of the civil rights accomplishments of the last century. Unfortunately it is far more serious and far reaching than that; the movement away from the forward-looking society we were hoping for as Kennedy took office, which was then partly fulfilled by Johnson following the shock of Kennedy's assassination, has been under steady attack. All this by little men in Washington inhabiting offices that call themselves important sounding names (mostly including the word "Institute") in a most methodical way.
And what has the naive liberal Left done to counteract this? Almost nothing in a consistent, planned and programmed way.
Let us not attribute too much power to the rather dense and unimaginative right-wing justices of the Supreme Court. They are just empowered tools of the reallly insidious forces behind them
Can we, Liberals, now have a plan, with some goals and some funding to counteract the Right and its backward-looking vision of America? I am waiting.