SCV Opposes Recall of CSA License Tags

In the Deep South of Virginia, in bucolic Brunswick county, the Sons of Confederate Veterans are mounting a simulation of the end of the Civil War, by challenging Gov. McAuliffe’s order recalling Virginia license tags that bear the Sons’ symbol (which is largely the Confederate States of America’s unofficial “battle flag”). The simulation results from the fact that Leonard Tracy Clary (described as the Sons’ “Virginia division commander”) has no chance of winning.

The reason he can’t win is a combination of two facts: first, the Supreme Court has ruled that states have no obligation under the First Amendment to issue tags with symbols on them that the state doesn’t want to issue; second, license tags are state property. In Walker v. Texas, the Supremes ruled that the state (in that case, Texas, but applicably to all states) is speaking when it issues a tag with a symbol on it, and that the state gets to decide what it says. Although all state action is limited by what the constitution (of the state and of the United States) permits, the Supremes observed that government function would be virtually impossible if one were to read the First Amendment in a way that meant the state could not choose to refrain from some speech. As license tags are made and issued by the state, it’s the state’s call as to what they look like and, to the extent that they say anything, it’s the state’s call as to what they say (or don’t say). In other words, your First Amendment right to put a CSA flag sticker on your bumper isn’t equal to a First Amendment right to make the state put a CSA flag symbol on its tags, or even on some of its tags. (I don’t believe the Walker case argued an Equal Protection claim, which would have said that, if Texas puts anyone else’s logo on its tags, it has to put everyone’s logo on some of its tags, but I suspect the outcome would be the same, as long as the Supremes continue to regard those symbols as state, not private, speech.)

Division commander Clary’s claim (from the press reports) appears to be slightly different from Walker’s. Walker argued that his application to have Texas make tags with the logo was denied unconstitutionally. Clary is claiming that, as he already has a tag, Virginia can’t make him give it up. I think this argument is doomed, however, as Clary’s tag is Virginia’s property. Any of us who possesses a Virginia tag can be asked by Virginia to give it back, regardless of the reason. So I don’t think Clary’s case will last very long, much less succeed. I believe one has to pay a small fee to get a tag with a logo on it, so Clary can expect to get his money back. After that, however, I think he’s still got a First Amendment option he can spend that money on, one that ought to have been the way to avoid all this fuss in the first place…

 

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