Although freedom of speech appears to be a straightforward and agreeable issue on the surface, it has been proven to be a great conundrum for both the government and private citizens. The most recent complication comes from the Sons of Confederate Veterans (SOCV), who wanted to finance and support a Texas license plate carrying a picture of the Confederate flag. The United States Supreme Court presided over the lawsuit last week in which the Texas SOCV sued for the right to display the flag.
The case started when the SOCV communicated to the Texas Department of Motor Vehicles their desire to possess a specialty license plate decorated with the Confederate flag. In response, the Texas DMV denied their request on the grounds of offensiveness associated with the symbol, causing the SOCV to challenge the DMV’s refusal as an infringement on their First Amendment rights.
Without knowing much about the freedom of speech and its various complexities, one may be convinced that the SOCV is right in this legal battle. If the group purchased the license plates out of their own pockets, there should be no reason why they would be denied what they want .Yes, the message may be controversial and offensive, but who are we or the Texas DMV to decide what can and cannot be put on a private citizen’s car, or property for that matter?
“The First Amendment really was designed to protect a debate at the fringes,” said American Civil Liberties Union Legal Director Steven Shapiro in an interview with NPR. “You don’t need the courts to protect speech that everybody agrees with, because that speech will be tolerated. You need a First Amendment to protect speech that people regard as intolerable or outrageous or offensive — because that is when the majority will wield its power to censor or suppress, and we have a First Amendment to prevent the government from doing that.”
Toni Massaro of the James E. Rogers College of Law built on Shapiro’s argument.
“Free speech doctrine is especially concerned about ‘viewpoint discrimination,’” Massaro said. “So, if the state allows one message, it cannot deny access to another on the same subject matter that expresses a different viewpoint.”
However, if the government is producing the speech, there are specific rules that are legally permitted to be at play. This comes from the difference between “public forum speech,” which is seldom regulated and produced by private individuals or institutions, and “limited forum” or “government speech” which is made by the government and follows a different set of guidelines.
Speech shown on license plates, regardless of who bought them, is still seen as sanctioned by the government. The government is also the one handing out the license plates, so any messages on the plates are considered to be government sponsored. The Supreme Court must consider the distinction between government speech and public forum speech.
The Confederate flag contains a racist implication understood by many Americans. It stands for an organization that condoned slavery of African Americans and espoused the doctrines of racial hierarchy in society.
All governments, including the state of Texas, has a responsibility to their citizens not to support any message that communicates racism, sexism, homophobia, and hatred in general. If the Supreme Court declares the Sons of Confederate Veterans the victor, then any hateful, extremist group, such as the neo-Nazis and the Ku Klux Klan, can legally draft their own license plates if they have the money to do so.
The First Amendment does entitle these groups to their own hateful viewpoints, but the government must also refuse putting these opinions on official state speech. Doing so is not just a mark on the government, but it is also offensive to citizens, whom it is the government’s job to protect.
“It is not a question of free speech. It is offensive speech,” said Houston Congresswoman Sheila Jackson. “It is a state-issued license that honors my oppression.”
This is without a doubt a complicated predicament. On the one hand, the government should not monitor speech, since it is protected under the First Amendment of the Constitution. Yet, it is inappropriate and unjust for the government to put hateful messages on official forums.
“Our constitutional values here collide,” said Jackson Wright, a law professor at Harvard Law School. “We care deeply about free speech, but we also understand it is not absolute in all contexts.”