The Washington PostDemocracy Dies in Darkness

How the Redskins name controversy wound up in a Supreme Court dissent

(By Rob Carr/Getty Images)
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Some critics of the Redskins name have compared it to the controversy over continued use of the Confederate battle flag, arguing that the justifications for both symbols — pride, tradition, intent —  are similar, as are the arguments against.

That comparison actually made its way into a Supreme Court opinion this week.

The Court ruled Thursday that messages and images on specialty license plates “constitute government speech,” allowing Texas to scuttle a proposed design featuring the Confederate battle flag.

The Court’s 5-4 decision was written by Justice Stephen G. Breyer, who said from the bench that the Sons of Confederate Veterans — which proposed the design — “cannot force Texas to convey on its license plate a message with which the state does not agree.”

[Supreme Court: Texas does not have to allow Confederate flag license plates]

The decision is concerned with whether the messages or images on specialty plates constitute government (as opposed to private) speech, and not with whether the flag’s image is offensive. Breyer wrote that a motorist with a specialty plate “likely intends to convey to the public that the State has endorsed that message.”

If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate. But the individual prefers a license plate design to the purely private speech expressed through bumper stickers. That may well be because Texas’s license plate designs convey government agreement with the message displayed.

This argument was mocked in Justice Samuel A. Alito Jr.’s biting dissent:

If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?

Alito acknowledged that the Confederate battle flag “is a controversial symbol,” and that to some, “it symbolizes slavery, segregation and hatred.” But he argued that “the flag expresses a viewpoint,” and that many other specialty plates also have “the potential to irritate and perhaps even infuriate those who see them.”

Texas allows a plate with the words “Choose Life,” but the State of New York rejected such a plate because the message “[is] so incredibly divisive.”…Texas allows a specialty plate honoring the Boy Scouts, but the group’s refusal to accept gay leaders angers some. Virginia, another State with a proliferation of specialty plates, issues plates for controversial organizations like the National Rifle Association, controversial commercial enterprises (raising tobacco and mining coal), controversial sports (fox hunting), and a professional sports team with a controversial name (the Washington Redskins). Allowing States to reject specialty plates based on their potential to offend is viewpoint discrimination.

And thus did the Redskins name controversy enter a Supreme Court opinion about the use of the Confederate battle flag.

(Coincidentally, the opinion was issued on the same day that some Redskins name critics were taking advantage of renewed interest in the Confederate flag to criticize the team name.)

(Nine states have specialty plates featuring the Confederate battle flag, according to the New York Times, including Maryland and Virginia.)

[Read the Supreme Court decision and dissenting opinion]