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Wavering on the Confederate flag

The Supreme Court heard oral arguments today over whether the state of Texas can deny the Sons of Confederate War Veterans a specialty license plate because its proposed design features the Confederate battle flag, a symbol many find offensive. It's a case of more than passing interest to Maryland where tags of a similar design have been available for close to two decades.

Proponents of the license plate have long argued that if a state is going to offer non-profits or other groups a chance to produce a specialty license plate, government officials must respect the authors' First Amendment right to free speech. It has frequently been perceived by courts as a form of political speech and thus constitutionally protected.

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In Maryland, the state Motor Vehicle Administration went so far as to attempt to withdraw plates with the Confederate flag design in 1997 but was subsequently ordered not to do so by a U.S. District Court judge. The MVA chose not to appeal the ruling, and the General Assembly considered ending the specialty plate program but ultimately chose to keep it.

But there's something fundamentally wrong with forcing Texas, Maryland or any other state to sanction the message, intentional or not, that is presented by the Confederate flag. What is a license plate if not an extension of government authority? Motorists are free to post as many flags of whatever nation or cause as they'd like on their vehicles. But a license plate is different; it represents a kind of government endorsement that states ought not be forced to make under every circumstance. This is not private speech, it's government speech we're talking about.

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Politically-conservative Texas may seem like an unlikely state to press the case, but officials there rejected the Sons of Confederate War Veterans' controversial design five years ago. The case eventually landed in the 5th U.S. Circuit Court of Appeals, which ruled — much as Judge Frederic Smalkin determined in Baltimore 18 years ago — that Texas lacked the authority to deny the design based on content. Now, it's up to the nation's highest court to make a final determination.

We take those involved with the Sons of Confederate War Veterans at their word that the intent of their license plates is to honor their ancestors, not to antagonize African-Americans. But even so, it would require pretty elaborate blinders to ignore how the Confederate flag has become a symbol of racism, black suppression and white power over the years. Proponents of putting it on license plates might as well be arguing that the swastika is an ancient symbol in Hinduism and Buddhism without noting its more recent associations with Nazi Germany.

Indeed, would the state be compelled to endorse a pro-Nazi message if some fascist group submitted a design with a swastika? What if it was a pro-ISIS message advocated by Americans sympathetic to the cause of terrorism while U.S. servicemen were dying overseas? Motor vehicle agencies are already free to edit the content of vanity tags to rid them of sexually explicit messages, profanity or other vulgarities. Why is this any different?

Even Southerners recognize that broad public acceptance of (or at least indifference toward) the Confederate flag is on the wane. The emblem that once graced the top of the iconic car nicknamed the "General Lee" and featured in the "Dukes of Hazzard" TV series in prime time, is no longer perceived as some charming bit of Southern heritage. It is also clearly remembered as the flag carried by the Ku Klux Klan as its members terrorized blacks and, more broadly, as a symbol of defiance by those who continue to oppose equality for all.

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States could simply stop issuing specialty tags of any kind, of course, but they generate too much revenue to be ignored. In Texas alone, the justices heard, they accounted for $17.6 million last year, money that's crucial for upgrading roads and other transportation infrastructure. Yet why must any state choose between fixing pot holes or offending a large segment of its population? Particularly when such a simple remedy — transferring the message to a bumper sticker instead of a government-issued plate — is so readily available?

These aren't easy decisions. Some people are offended by license plates that advocate a particular position on abortion or perhaps some other controversy. But the Confederate flag is something else altogether, and it has no place on a government-issued license plate, not in Texas and certainly not in Maryland.

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