Supreme Court (Thomas!) Kicks the First Amendment to the Curb

Civil War re-enactors carry Confederate flags in Forth Worth, Tex. (Photo by Steven Martin, Flickr)

The U.S. Supreme Court has pretty much kicked the First Amendment’s freedom of speech clause to the curb – and you can blame one of the most conservative voices for that, Justice Clarence Thomas.

In a ruling just handed down Monday, the court found in Texas Department of Motor Vehicles Board v. Texas Division of the Sons of Confederate Veterans the government does indeed have the authority to regulate political speech.

Yes, that’s the ruling: The government can now legally regulate private citizens’ political speech.

The justices should have glanced at the statements of one of their colleagues, Justice Thurgood Marshall, who in 1972 made it clear: “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control.”

Content control, indeed. And content control on the part of the government toward the free American citizen is what we now have.

The court case began as a spat over what constituted a proper license plate in Texas. The Sons of Confederate Veterans thought a little emblem of the rebel flag to the left of the tag number would be OK – especially since the state’s Department of Motor Vehicles Board regularly and with seeming abandon pretty much approved all the other requests for specialty plates – roughly 350 of them.

But the Texas DMV Board, to paraphrase, said, “No, Sons of Confederate Veterans, your confederate flag is offensive.” So the two sides went to court. And the Sons of Confederate Veterans argued what would seem to be the obvious: that the government board was breaking First Amendment free speech provisions. One court found in favor of the DMV Board; another, for the vet group. Enter the U.S. Supreme Court.

In an opinion written by Justice Stephen Breyer, the court’s conclusion was the government just “would not work” without having the right to determine what constitutes rightful and proper free speech. He then posed from left field: “How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?”

Can you say, whaaat?

But he clarifies: Allowing the Confederate flag on the license plates could give the impression the Texas government endorses the rebel emblem, Breyer said.

Sanity seems to have made a brief appearance, on the wings of Justice Samuel Alito who wrote in his dissenting opinion: Dude, that’s just stupid. Referencing the license plates in Texas that carry Dr. Pepper and NASCAR emblems, Alito asked, “Would you really think that the sentiments reflected in these specialty plates are the view of the State of Texas and not those of the owners of the cars?”

But it was too late. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan had already cast their constitutional caution to the wind and joined with Breyer – and, in a shocker to a conservative’s core, so did Thomas. One can only guess he had personal reasons and a personal vendetta against the rebel flag, because constitutionally speaking – the ruling just bites.

Think this is a license plate matter confined to Texas? Or maybe a cause for silently applauding the court’s boldness in booting that much-hated Confederate flag?

Well, it’s not. It’s a massive First Amendment ding. And now we’re already feeling tremors elsewhere. Right after the Supreme Court released its horrific Texas ruling, a federal judge in Manhattan issued one of his own, putting the halt on Pamela Geller’s American Freedom Defense Initiative to post ads on city buses and subway cars of a menacing man with a masked face alongside warnings about radical Islamists. The case of Geller versus the Metropolitan Transportation Authority had traversed a similar path as the Sons of Confederate Veterans – it led to a court fight about so-called offensive speech, which led to a First Amendment win for Geller, which led to the MTA’s sulky decision to quit posting any and all political ads.

Now curiously, right after the Supreme Court decided government can in fact control political speech, the same judge who previously found in Geller’s favor then ruled that the MTA ban on all ads moots his earlier support of her cause based on the First Amendment. That means she can’t put up her political ads after all. As Geller’s attorney rightly raged: So the government gets to break the First Amendment and then simply change its rules to “avoid the consequences of its unlawful behavior?”

They’re vowing to pursue the matter all the way to the Supreme Court. Let’s hope Thomas has recovered his senses when they arrive.

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