Monday, December 8, 2014

The Confederacy Storms the Barricades in D.C.

UPDATE (06/18/2015): The State of Texas wins a close 5-4 decision. Justices Breyer wrote the majority decision, joined by Justices Ginsburg, Sotomayor, Kagan and Thomas. Justice Alito wrote the dissent joined by the remaining justices and the chief justice.

UPDATE (03/24/2015): Oral argument at SCOTUS was yesterday in this case. has a good analysis of OA and a transcript is available here. Most fascinating aspect, for me, was Justice Sotomayor's questions directed at the SCV seeming to try and carve out a middle ground of "hybrid speech" (transcript pg. 37). SCV was not having any of it. Also important was Justice Kennedy's mention that no one goes to parks and climbs on a soapbox as a public forum for political speech anymore. "Why isn't this a new public forum a new era?" he asked the Texas Solicitor General (transcript pg. 9).

 Amongst the lore from my mother's side of the family is an ancestor who provided meritorious service to the Confederacy. It is always noted he was cavalry, which I interpret as meaning social standing in that bloody time depended upon the triviality of being horseback during the carnage rather than on foot. Captured in 1862 by the hated Yankees during the battle of  Perryville, Kentucky, he was interred in a union prison camp for the balance of hostilities.

   Decedents of my ancestor's bothers-in-arms have now taken to the litigation battlefield against, ironically, a state's right to disallow specialty license plates with their emblem, which includes the confederate battle flag. Here's the plate:

   Their offensive has led to a field of battle their ancestors never achieved, Washington D.C. The situs of the fight is the Supreme Court of the United States.Walker v. Texas Division, Sons of Confederate Veterans had petition for certiorari granted on Friday, December 5, 2014. The wonderful SCOTUS blog has a summary of the legal issues involved as well as links to the State's petition and the response of the SCV  here.

   As best as I can communicate, the first issue is whether the specialty plate is a form of government or private speech. The state of Texas says any organization (including SCV) that requests a specialty plate is engaging in private speech. As such the State can decide whether to allow or disallow the private message or symbol sought to be displayed. The SCV argues once the government opens a forum to the public, it cannot discriminate among the message (or symbol) speakers deliver in that forum. The SCV maintain Texas' specialty license plate program is such a forum and the state's denial of it's plate logo is viewpoint discrimination. The SCV view won in the Fifth Circuit Court of Appeals.

   It is hard for me to get worked up over many of these First Amendment cases. I understand it is the FIRST Amendment. Nothing is more basic in a robust republican form of democracy than differing viewpoints of speech and airing those viewpoints in public assembly.

   The specialty plate program is is both popular and profitable in Texas. Hypothetically, if there was a non-profit named the Sons of Black Panther Party which submitted an application for a specialty plate with "The Revolution has Begun" as a motto and a logo similar to that below, would it be supported by the SCV?

   Even though it received much less media attention, one of the other cases SCOTUS granted certiorari Friday has potentially far more profound results in terms of the power of government. It is Brumfield v. Cain, a Louisiana case involving Intellectual Disability (Mental Retardation) and the death penalty. More on it to come later. Both cases will likely be argued in March, 2015.

   Perhaps there will be Civil War reenactors on the steps of SCOTUS when the SCV case is argued. What a spectacle it would be. I am sure my ancestor will be there in spirit. Horseback of course. He is cavalry, after all.

1 comment:

  1. If I pay extra money for the "vanity" plate, I'd say it's my free speech. Plus it's my truck . . . consequently my speech. I suppose an observer of the plate might wrongly assume the government sanctioned my speech (even though my speech might offend) since I paid the county tax assessor for it. But is the observer's misconception about who's speech it is actionable? We will see.