The Government’s Opinion of the Confederate Flag has Nothing to do with Free Speech

In the midst of the national purging of the Confederate flag from a whole host of venues, ESPN host Keith Olbermann went to the airwaves recently in order to attempt to make a comparison. In this attempt, he cited a recent Supreme Court case in which it was ruled that the Texas government did not overstep the First Amendment in denying the Sons of Confederate Veterans’ request for specialty license plates bearing the Confederate flag. Thus, it was ruled constitutional for the state of Texas to deny this group license plates with this symbol.

Olbermann then pivoted to apply this ruling to the Washington Redskins organization and their judicial effort to reverse the U.S. Trademark Trial and Appeal Board’s June 2014 ruling to cancel the team’s six trademark protections on grounds of the name ‘Redskins’ being “disparaging” to Native Americans. The host then reported that the judge in this case (Gerald Bruce Lee), told lawyers on both sides that “they should focus on how the Supreme Court ruling on the Confederate flag affects their case.” The audience was then informed that “the lawyers for the Native American side said, obviously, that their case was strengthened since when the Supreme Court ruled that when Texas refused to make the confederate plates because they were offensive, that did not mean that Texas was infringing on the First Amendment free speech rights of those who wanted an offensive symbol on their license plates and thus, that the United States would also not be infringing upon the First Amendment free speech rights of a company who wanted to use an offensive name for their products.” (emphasis mine)

These lawyers are making a rather dangerous assertion. License plates are issued solely by the state as a form of identification. The state is not afforded the same right to speech as individuals or groups of individuals. No individual or group of individuals should have the right to use the state to express a viewpoint. This is because the state is simply force. Nothing more, nothing less. A sports team, on the other hand, is a collection of individuals. Thus, First Amendment protections clearly apply to them regardless of their offensiveness. A sports team is not force no matter how many billions of dollars the team is worth. It cannot (by itself) tax us, arrest us, send us to prison or fine us. The state of course can and does do all of these things. Only imposition by private individuals on the state could result in confederate license pates. But only coercion by the state can prevent private individuals from expressing something that is allegedly offensive. This is why the lawyers for the Native American case are making such a dangerous claim. The First Amendment protects the right to be free from state coercion, not the right to convey your expression by way of the state.

So if a state (like Texas) refuses to grant identification with controversial symbols on it and then a government can rule that because of that refusal that First Amendment protections do not apply to private citizens who exhibit controversial symbols, then what limits are there to the free speech violations that a government could take part in? How many other controversial symbols do various states not issue on forms of identification? Probably a lot. But a lack of state issue has absolutely nothing to do with a private citizen or organization being entitled to free speech while displaying a symbol that some say is controversial. It certainly shouldn’t affect whether or not a private organization can be deprived of trademark protection as a result of a name or symbol that offends some people. A government cannot be its own standard bearer with regard to what is unoffensive enough to deserve First Amendment rights. If it ever becomes this way, our nation will start down a very slippery slope.

If government can use its own standards for what it chooses to express and not express to control the expression of its citizens, then we truly do not live in a free society. As former state judge and current Fox News judicial analyst Andrew Napolitano said when discussing this issue, “who cares what the government thinks.” Government thinking about what is or isn’t offensive is subject to the whims of whoever controls that government after any given election cycle. But the freedom to speak freely should never depend on the opinions of those who rule over us.