Justice Thomas Deals An Unexpected Blow To The Confederacy

BY IAN MILLHISER POSTED ON JUNE 18, 2015 AT 12:01 PM
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The state of Texas is not required to issue a license plate that incorporates the Confederate battle flag, according to a 5-4 decision handed down on Thursday. The case presented one of the most genuinely difficult cases to reach the Supreme Court this term. It was also resolved by an unusual mix of justices. Justice Clarence Thomas, probably the most conservative member of the Court, joined the Court’s four liberal members to form the majority.
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Walker v. Texas Division, Sons of Confederate Veterans presents a conflict between two competing First Amendment doctrines. On the one hand, the First Amendment typically prohibits states from engaging in viewpoint discrimination — that is, enacting laws or policies that preference one opinion over another. The Sons of Confederate Veterans (SCV), who requested the specialty plate at issue in this case, argued that Texas engaged in exactly this form of discrimination when it refused to issue the SCV’s proposed plate design because “public comments ha[d] shown that many members of the general public find the design offensive.” Texas did allow many other plate designs, ranging from “Rather Be Golfing” to “Choose Life” to “Insure Texas Kids,” which did not express the implicit viewpoint presented by a Confederate flag license plate.
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Yet, as Justice Stephen Breyer explained in his opinion for the Court, there is one context where the government is allowed to engage in viewpoint discrimination. “When government speaks,” Breyer wrote, “it is not barred by the Free Speech Clause from determining the content of what it says.” This exception exists for entirely sensible reasons, which Breyer lays out in his opinion. “Were the Free Speech Clause interpreted otherwise,” the Walker opinion explains, “government would not work. How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?”
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http://thinkprogress.org/justice/2015/06/18/3671227/justice-thomas-deals-unexpected-blow-confederacy/