A day after the racially motivated massacre in South Carolina sickened the country and reopened the debate about whether that state should take down the Confederate flag flying in its capital, the U.S. Supreme Court allowed the state of Texas to deny a request from car owners to use specialty license plates featuring the Confederate flag. The court majority held that messages appearing on license plates are government speech more than private speech and that the government has the right to espouse or oppose certain positions.
Nine states currently permit the use of the Confederate flag on their license plates. Eight of those states, Mississippi, Alabama, North Carolina, South Carolina, Georgia, Louisiana, Virginia and Tennessee, seceded from the Union and were part of the Confederate States of America during the Civil War. The one state allowing the flag that was not part of the Confederacy is Maryland. While Maryland permitted slavery and had many residents in 1861 who were partial to the views of the southern states, the fact remains that it never seceded and always remained part of the Union, albeit by means that were controversial.
It is long past the time for Maryland as well as the other states to ban the use of the Confederate flag on the license plates they issue. Most will agree that slavery was the greatest abomination ever perpetrated in the United States. Without getting into the endless debate about whether slavery was the primary cause of the Civil War, no one can argue that the secessionist states were, among other things, the defenders of this abominable institution. For a state to endorse a symbol of the defenders of slavery by putting the Confederate flag on representations of government speech is unconscionable.
To make this argument is not to assert that organizations like the Sons of Confederate Veterans and some of the other groups that support the use of the Confederate flag in this and other ways are composed of racists wanting to foster pro-slavery views. I understand wanting to honor ancestors and those who believed they were fighting the honorable fight for their state. I do however accuse them of gross insensitivity regarding events of the past as they apply to conditions of the present. How can they ask African-Americans whose ancestors were held in chains against their will to appreciate that the symbol of this cruel oppression should be viewed only as a veneration of ancestors? How can they not recognize, as the board of the Texas Department of Motor Vehicles wrote, that "a significant portion of the public associates the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups."
Was anyone surprised, for example, when they saw a photograph of Dylann Roof, the man charged with murdering nine people at a predominantly black church in Charleston, S.C., posing in front of a car bearing the flag of the Confederate States? Perhaps now as South Carolina residents mourn the death of those nine innocent homicide victims -- an act apparently resulting from the most virulent form of racism — the state will seriously reconsider the removal of that same Confederate flag from the grounds of the state capitol in Columbia.
It is undeniable that the decision of the Supreme Court to permit states to regulate what is put on license plates could lead to difficult and sometimes political decisions about what messages and symbols should be allowed and which ones prohibited. Obviously, with very few exceptions, states do not have that right to intervene if the speech involved is private rather than government speech. When, however, someone wishes to use words or symbols in a manner that represents the state, such as on license plates, those words and symbols that are regarded by many as messages of hate should not be permitted.
Steven P. Grossman is the Dean Julius Isaacson Professor at the University of Baltimore School of Law; his email is firstname.lastname@example.org.