Johnny Reb, Charlie Hebdo, and the Way of Free Speech

By Steve Weissman, Reader Supported News

05 July 15

 

hy is free speech so difficult to understand? Why are so many people for it, but …?

The muddle sadly engulfs all sides of our ideologically riven Supreme Court. In Citizens United, the conservative majority ruled that money equals speech, an intellectually curdling and democratically disastrous doctrine advocated for years by no less than the American Civil Liberties Union (ACLU).

Even more eye-popping, last month in Walker v. Sons of Confederate Veterans, Justice Clarence Thomas joined with his intellectual foes Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor to decree that the State of Texas did not infringe the First Amendment's protection of free speech in refusing to allow a confederate flag on a specialty license plate.

“A significant portion of the public,” the Texas Department of Motor Vehicles had argued, “associates the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”

No one could make this up. Texas is hardly the most racially sensitive state in the union. Thomas, the uncommunicative enthusiast of Long Dong Silver, almost never shows much sympathy for the feelings of his fellow African-Americans, while the four liberal paragons are generally seen as defenders of free speech.

What odd-mates they are! Yet they came together to dumb down the First Amendment, arguing in Justice Breyer’s majority decision that the specialty license plates represented government speech, not private expression, and thus bypassed the restrictions governing free speech.

Strip away the legalistic smoke and mirrors, and what remains? At best, the same well-motivated, politically correct, and self-defeating notion that led many liberal intellectuals to turn against the French satirical weekly Charlie Hebdo. In this inevitably short-sighted view, speech should not offend, especially embattled minorities, whether African-Americans, Muslims, Christians, or Jews.

Like other states, Texas makes money by offering higher-priced license plates that enable drivers to support various causes or express differing points of view. The messages tout everything from the soft drink “Dr. Pepper” to “Choose Life” and “Operation Enduring freedom.” Many advertise universities and their football teams, often from out of state. You can see the plates on the Texas DMV website.

All this appeared harmless enough until the Texas Division of the Sons of Confederate Veterans asked for a plate that would include its logo, which features the battle flag of General Robert E. Lee's Army of Northern Virginia. The state initially approved the design, for which the group had to agree to pay an initial $8,000 to produce the first 1000 plates.

Opposition quickly mounted. As the ACLU argued in its ultimately unsuccessful friend of the court brief in February, Texas had wrongfully censored speech, but for reasons with which free speech advocates could sympathize. “The Confederate flag has a symbolic significance that many African-Americans and others consider offensive, and for good reason,” said the ACLU. “The Confederate flag was flown by those who defended slavery and sought to dissolve the Union.”

More recently, it served as the banner of those white supremacists who wanted to maintain state-sponsored segregation. But, to those who understand the way of free speech, these outrages can never justify censoring one viewpoint while permitting another. On this, if not on Citizens United, the ACLU nailed the argument perfectly.

“If there is a bedrock principle underlying the First Amendment,” the group wrote in its brief, “it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

“Once the government opens a forum for private speech, as it has done here, it is undisputed that two rules always apply: 1) the State may not engage in viewpoint discrimination, and 2) the State may not establish vague and indefinite standards that permit state officials to regulate speech with unfettered discretion.”

Just how sweeping this has to be to hold the state in check and defend the rights of individual citizens came through clearly in the oral arguments of R. James George, counsel for the Sons of Confederate Veterans and a former law clerk for Justice Thurgood Marshall, the first African-American to serve on the U.S. Supreme Court.

Suppose, asked Justice Ginsburg, someone wanted a swastika on their license plate?

“I don’t believe the State can discriminate against the people who want to have that design,” George answered.

“Suppose somebody else says, I want to have ‘Jihad’ on my license plate. That’s okay, too?” asked Ginsburg.

“Yes,” George answered again.

“How about ‘make pot legal?’”

“Yes,” George repeated.

“And Bong hits for Jesus?” Ginsburg pressed on to laughter in the courtroom.

“Yes,” said the longtime defender of free speech.

All this might argue for getting rid of the specialty license plates, as some of the justices remarked. But, in the marketplace of ideas, no one has a right not to be offended, and as the furor over Charlie Hebdo demonstrates, this has to include Muslims, Jews, the Pope, and whomever else.

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A veteran of the Berkeley Free Speech Movement and the New Left monthly Ramparts, Steve Weissman lived for many years in London, working as a magazine writer and television producer. He now lives and works in France, where he is researching a new book, "Big Money and the Corporate State: How Global Banks, Corporations, and Speculators Rule and How to Nonviolently Break Their Hold."

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.