Most states, including some very conservative ones, prefer not to give their endorsement to white supremacist symbols – though there are notable exceptions, like South Carolina, that infamously prefer to display the Confederate flag on state property. On Thursday, appropriately enough, a slim majority of the US supreme court ruled that Texas was not required to give its imprimatur to the Confederate flag.

At issue in Walker v Sons of Confederate Veterans were the specialty license plates offered to drivers by the state of Texas. In addition to its standard plates, Texas offers a series of special designs people can choose for an additional fee. This program is distinct from the option of personalized plates, in which individuals choose an alphabetical and/or numerical pattern on their own. If approved, the specialty plates are made available to anyone in the state.



In this case, the Sons of Confederate Veterans proposed a specialty plate featuring the Confederate battle flag. The relevant panel rejected the design and refused to issue the plate, citing its authority to reject any design that “might be offensive to any member of the public.” The panel concluded that “a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”

In a 5-4 ruling – with the four Democratic nominees joined, interestingly, by Justice Clarence Thomas, the Court’s only African American member - the court held that Texas was not required to issue the pro-Confederate plate design. This is not an easy case, but the Court’s opinion is probably right.

Let’s not mince words: the Confederate battle flag originated as a symbol of treason in defense of slavery that was repurposed as a defense of apartheid during the massive resistance to Brown v Board of Education. It’s about hate, not heritage. Yet individuals have a First Amendment right to display one on a bumper sticker, outside their house or on a t-shirt, because racist speech is protected. The state can prevent threatening speech, but it cannot punish people merely for expressing ideas.

The dissenting justices see this case as being about this kind of individual right.

“Messages that are proposed by private parties and placed on Texas specialty plates are private speech,” asserted Justice Samuel Alito in his dissenting opinion. If this is true, the Sons of Confederate Veterans plate must be permitted despite its hateful symbolism.

The majority, however, makes a persuasive case that this is a case of government speech, not private speech. This is an important distinction, because while the state generally cannot suppress private speech or favor one private opinion over another, it is not required to endorse or express any particular view. “A person who displays a message on a Texas license plate” instead of a bumper or window sticker, argues Justice Stephen Breyer in his opinion for the Court, “likely intends to convey to the public that the State has endorsed that message.”

Nor has the pro-Confederate viewpoint been singled out. The state tightly controls the design of the specialty plates and has rejected at least a dozen plate designs, suggesting that the specialty plates are government speech. Texas is not required to give its tacit endorsement to the display of the Confederate flag any more than it is required to approve specialty plates with pornographic images. “Texas offers plates that pay tribute to the Texas citrus industry,” notes Breyer, “[b]ut it need not issue plates praising Florida’s oranges as far better.” Graduates of the University of Oklahoma who proposed a specialty Texas license plate depicting Boomer and Sooner trampling a Texas Longhorn would also probably find themselves out of luck, and it’s hard to say that this violates the First Amendment.

The court’s decision, of course, will not only cut in one ideological direction. Based on the ruling, lower courts will almost certainly that rule North Carolina is permitted to offer a “choose life” license plate without offering a pro-choice alternative. But I don’t see that as particularly problematic. Pro-choice advocates retain their ability to make their case in public, including on their cars. It’s not necessary to ask for the state’s approval or implicit endorsement, let alone to pay it for the privilege. I recommend that supporters of reproductive freedom in North Carolina take the money they might have used to get specialty license plates and send it to their local abortion provider instead.

Individuals have the right to express hateful ideas in public, but the state is not required to endorse them. Either way, state governments, like individuals, are allowed to determine the content of the messages they wish to send. If one wants the state to send better messages, the solution is to elect better public officials.