Confederate flag

Clarence Thomas and the Confederate Flag

Understanding Justice Thomas' vote in Walker v. Sons of Confederate Veterans.

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Yesterday the U.S. Supreme Court issued two very different opinions in First Amendment cases. First, in Walker v. Sons of Confederate Veterans, a 5-4 majority held that the Texas Department of Motor Vehicles did not violate the Constitution when it refused to create a specialty licensing plate bearing the image of the Confederate battle flag. License plates, the Court held, are not venues for private expression protected by the First Amendment, they are forms of government speech. Then, in Reed v. Town of Gilbert, the Court struck down an Arizona town's regulatory scheme governing the placement of signs on public property. "Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals," such as signs giving directions to Pastor Clyde Reed's weekly church services. "That," the majority held, "is a paradigmatic example of content-based discrimination."

Credit: C-SPAN

Justice Clarence Thomas voted differently in these two cases. When it came to the Confederate flag license plates, he joined Justice Stephen Breyer's majority opinion, standing alongside liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, to find that no First Amendment violation had occurred. In Town of Gilbert, on the other hand, Thomas authored the majority opinion invalidating the local ordinance on free speech grounds. Thomas' majority opinion in that case was joined in full by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, and Sonia Sotomayor.

Writing at The Atlantic, Garrett Epps theorizes about why Thomas might have joined the liberal bloc in one First Amendment case while writing for a mostly conservative bloc in the other. Epps writes:

Why would Thomas cross over in the Sons of Confederate Veterans case? To state the obvious, Thomas is the Court's only African American. Much has been made of his rejection of contemporary civil-rights orthodoxy. But it is equally clear that Thomas retains vivid and bitter memories of his poverty-stricken childhood in the Jim Crow South—and that he retains a particular hatred for the symbols of Southern white supremacy.

Justice Thomas did not write separately in the license plate case to explain why he joined Breyer's opinion, so we may never know for sure why he voted as he did. But Epps' theory is plausible. Indeed, if you survey Thomas' writings, speeches, and opinions over the years, you will find both a deep knowledge of America's racist history and a firm commitment to learning the lessons of the past.

For example, during oral arguments in the 2003 case of Virginia v. Black, which dealt with the constitutionality of a state law criminalizing cross burning, Thomas drew on his firsthand experiences growing up in the Jim Crow South. There was "almost 100 years of lynching and activity in the South" by the Ku Klux Klan and other racist terrorist groups, he reminded the courtroom. "This was a reign of terror, and the cross was a symbol of that reign of terror." A few months later, Thomas cast a lone dissent in the case, arguing that cross burning should find no protection under the Constitution. "Those who hate cannot terrorize and intimidate to make their point," he declared.

Thomas may very well view the Confederate flag in the same unforgiving light.

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  1. Sounds like Thomas made an emotional decision rather than a rational decision on the Confederacy license plate case.

    1. Bo approves.

    2. I don’t see it that way. I think he decided on the merits. Namely, that in the same way that government cannot coerce speech FROM us, neither can we coerce speech from government and force them to print Confederate license plates if they choose not to. Seems odd, but also oddly consistent.

      1. I can understand Thomas’ decision, but I do not agree with it. Once Texas (or any other state) decides to allow groups meeting fixed criteria (signatures, usually) to get a plate, it seems carpricious and against the 1st amendment to decide to grant some groups but not others based on the message (and not, as in the case of vanity plates, the actual words–no state allows a FUCK YOU license plate).

        But protection from being offended by the message should not be a factor in the decision-making process.

        Texas has “Calvary Hill”, “Choose Life”, “Come and Take It” , “Daughters of the American Revolution”, dozens of military-related, “Don’t Tread On Me”, “Ducks Unlimited”, “God Bless America” and “God Bless Texas”, a number of fraternity and sorority plates, “Notre Dame” and many other schools, “Texas Masons”, a number of professional sports teams, a number of hunting-related. Oh, and “Young Lawyers”.

        Surely we can each and every one of find a plate in their approved list that we can be “offended” by, which would by logic eliminate the entire program.

        Personally, I am livid that they have a University of South Carolina tag! But the Young Lawyers just makes me want to vomit, so both should be banned.

  2. I kinds see the logic behind the license plate decision. A plate is a State mandate, it implies the State endorses what it says on some level. If the State does not feel like endorsing the Confederacy (or even just doesn’t feel like being sued by the NAACP), so be it. The Confederate fan group is not restricted from placing the flag on their vehicles, just from making the State do it for them.

    1. If we have to have license plates, they should just be the plate number. Anything else can be expressed via bumper stickers etc.

      1. This is the key to me.

        By allowing vanity plates and plates with twee little messages for an extra fee, the state has essentially created a public place that citizens can access to undertake speech.

        To me it’s not materially different from a park now. It’s just a different type of state property that now serves the same purpose. If you let one group rent a park for a political activity, you can’t engage in viewpoint discrimination when another group wants to do the same.

        1. The problem in the Arizona case is the discrimination. If the city had said, no political messages at all, they would have been okay. They didn’t do that. They were letting some political messages but not others. That is what got them in trouble.

          The state in the flag case wasn’t doing that. They let people get their confederate flags and presumably let them get a Mexican flag or any other political message. IF they had done what the city in the sign case did and said “people can have their Confederate flags but not their Mexican flags”, they would have lost.

          It is not that the state can’t discriminate. It is that the state has to do so in a rational and even handed way.

      2. This. Who at the state gets to decide what causes are allowed and not allowed? Isn’t it wrong that the government who supposedly represents all of us is able to decide which causes to support via licence plates and which not too? I say either allow all specialty licence plates, or allow none. To do it any other way results in government led discrimination of the less favored groups.

      3. Maybe so, but in California you can submit any number of messages on license plates. The State decides what is acceptable. I’m not sure I can endorse that.

    2. I agree. If it were a ban on offensive bumper stickers that would be an obvious first amendment issue.

    3. The only thing I don’t like on the plates are the little ads like Ontario: Yours to discover (really? I hadn’t noticed I was free to do so, pal) and Quebec: Je me souviens (which has a confusing if not interesting background)

      https://en.wikipedia.org/?title=Je_me_souviens.

      In any event, I’m the sort of guy who (despite my enthusiasm for the past and history) I tend to not have a long memory preferring to look ahead.

      So the motto doesn’t reflect my personal views.

    4. Then Texas “approves”

      “Calvary Hill” (complete with the three crucifixes on the tag–surely there’s some anti-establishment case if the state “approves”?), “Choose Life” and “Young Lawyers”.

  3. I disagree.

    I think this is more like Thomas’ opinions on public school teacher enforcement of rules against student speech.

    He seems incredibly tolerant of first amendment restrictions on public property or during activity with a seemingly public purpose.

    He defends your right to speak on private property fervently, but gives the government wide latitude to control speech involving its own property, employees, or wards.

    I think he’s mistaken to do so, but it makes more sense to me as a matter of legal reasoning from him than as pure emotivism.

    1. This.

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  5. Hold on a minute, I thought Thomas denied the very existence of racism! I thought he felt embarrassed that he wasn’t born white!

  6. No. Thomas has the very simple and reasonable view that just because you have the right to build a sign as big as you want that says whatever you want on your own property doesn’t mean you have a right to demand the state put whatever you want on your state issued license plate. It is really that simple.

    Garratte Epps is a race obsessed half wit. Seriously, how stupid must one be to get hired by the Atlantic?

    1. Yah. This.

    2. I certainly think Thomas’ views in this case can be explained without a pure racial explanation, but in general, the Justice is aware of the country’s racial history. He does, however, draw slightly different conclusions from that history than the “civil rights” establishment.

      He doesn’t want to use racism to counter racism. At the same time, he’s sympathetic to the traditional black schools, so long as they allow non-blacks to come in on the same terms as whites. He’s not a fan of the “civil rights” victimhood establishment.

      But he’s aware of the context of things like cross-burnings and Confederate flags. I doubt he’d want to suppress the white supremacists’ 1st Amendment rights, as properly understood, but he knows his history.

      1. “allow non-blacks to come in on the same terms as *blacks*.”

      2. I think you are as whacked as Epps. I think Thomas didn’t give a flying fuck about race in either case. The South Carolina case did not involve viewpoint discrimination. The Arizona case did. That is really all there is to it.

        1. I didn’t say he voted the way he did because blackness. I said that *in general* he is most assuredly concerned with the state of the black community – it’s just that his concern doesn’t express itself as victimology, so his opponents just think he’s acting white.

          Epps draws ridiculous conclusions from this fact if he’s saying Thomas would uphold license-place freedom in a non-Confederate case. Thomas would oppose a Frederick Douglass license plate, too, if the DMV rejected one.

    3. ^this^

  7. Bo promised me stern defenses of Confederate iconography and a commitment to reprise Jim Crow laws anew. Why are you libertarians so reluctant to embrace your obvious racial intolerance?

  8. I would have preferred to see a Thomas concurrence, since he usually gives an extensive originalist explanation for his decisions, which are sometimes require background to understand.

    He’s generally less results oriented other justices ; his dissent in Raisch v. Gonzales is a good example (compare his opinion to Scalia’s concurrence. It took nearly ten years (and NFIB) for Scalia to admit that he was wrong.)

    Even when his, um, Irish is up over past racial injustices, he doesn’t let that influence his decisions ; his dissent in Kelo v. New London contains strong language about urban renewal being code for Negro removal, but that wasn’t the ratio behind his opinion.

    Thomas is occasionally weird on the 1st ammendment (especially wrt establishment clause, which he feels does not apply to the States, given that at the time of ratification several States had established religions).

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  10. How did J. Thomas vote on the NH “Live Free Or Die” case of some years back?

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