Wednesday, June 24, 2015

Walker v. Confederate Sons, Charleston shootings, Confederate Waterloo, and "legal realism"

Southern trees bear strange fruit,
Blood on the leaves and blood at the root,
Black bodies swinging in the southern breeze,
Strange fruit hanging from the poplar trees.

     From Strange Fruit, sung by Billie Holiday

     A. The Massive Quantum of Damage from the Confederacy

     The Confederacy was not good for America, especially African-American Americans. This obvious truth has profound resonances that not all folks may have realized yet, 150 years after the Civil War. Realizing the huge quantum of damage that the Confederacy did, including hundreds of thousands of deaths, the present author, while not writing a full amicus brief in Walker v. Texas Division, Sons of Confederate Veterans, Inc., at least mentioned that case in a few pages of his King v. Burwell brief, highlighting the danger from a Confederate-flag license plate. Walker was addressed there because there were issues of State dignity in both cases.
     In Walker, the fact that the Confederacy was an enemy power (of which Texas was a member), plus the current neo-Confederate and secessionist movements in Texas, means that a Stars-and-Bars license plate challenged the State of Texas' dignity and sovereignty, and even integrity. (Someone looking at a bunch of cars with Confederate plates, especially if the cars were owned by Texas government officials, might reasonably wonder if Texas were sliding back into an acceptance of Confederate values, white supremacy, etc.)
     The sovereignty issue also helps explain why the Walker dissent's using the Buffalo Soldiers example does not help their cause much. That is, the dissent complains that since some people were offended by a Buffalo Soldiers license plate, it is hypocritical to ban only a Confederate-flag plate. But though the Buffalo Soldiers' role in the "Indian Wars" is controversial, what is not controversial is that they fought for the U.S., not for a foreign or enemy power like the Confederacy.
     Sovereignty issues aside, Confederate flags might be just plain hurtful to African Americans (and others), "since the State printing a potential symbol of hate and racism on license plates could be a State-endorsed expressive harm against African Americans, many of whom are reeling from events like those in Ferguson, Missouri, and the death of black New Yorker Eric Garner from a police chokehold." (Author's brief at 17) Expressive harm, as in Bush v. Vera (517 U.S. 952 (1996)), meaning basically the ugly attitude or feeling expressed by a government action. The Confederacy was so hurtful, why continue the hurt now?

B. Gov't Speech, Private Speech, Schlemiel, Schlimazel, Zivotofsky, Kennedy

     One can always debate the exact rationale the Court used in Walker: they said that the license plate was government speech, hence, no First Amendment problem with a flag ban. The dissent said that license plates are really private speech and First-Am. protected; critics have said that maybe a hybrid analysis is better (plates are part gov't, part private, speech); etc. Rather than get hardcore into that debate, which could last forever, one shall just say that the Court's reasoning seems reasonable, especially given the multifarious alternatives available to the plaintiffs. E.g., if a Confederate Son wants to paint his whole trunk lid as a big Confederate flag (!), he may have the First Amendment right to do so.
     In the controversy covered by Zivotofsky v. Kerry, similarly, young Menachem Zivotofsky could set up a Myspace (formerly "MySpace") account and use that to declare that Jerusalem is really part of Israel. That way, he doesn't have to have "Israel" instead of "Jerusalem" on his passport.
     ...Speaking of Zivotofsky: why'd Justice Kennedy vote against the plaintiff in that case, but for the plaintiffs in Walker? Both are about plaintiff/s "hijacking" a State informational vector (passport, license plate) to send an offensive or damaging message. An answer may be that a passport is "consumed" (read by people) abroad--including any foreign-policy implications--, whereas a license plate is here in the good ol' USA.
     Kennedy, in his Ziv opinion, used a somewhat "functionalist" approach, noting that Palestinians protested the Congressional act in question, showing that offense and hurt had occurred. By contrast, Justice Alito in Walker says that "Texas has not pointed to evidence that these [Confederate] plates have led to incidents of road rage or accidents." Maybe, but it is a reasonable assumption that at some point, such plates could lead to an ugly incident. (Especially since the Civil War was the biggest "ugly incident" in our national history.)
     On that note:

C. The Walker Dissent's Factual Basis Is Now Evaporated, post-Charleston

     However, ironically, we don't have to speculate much more about the expressive harm emanating from the Confederate flag. The shooting in Charleston of nine African Americans at the Emmanuel AME Church, by Dylann Roof, who enjoyed posing with Confederate flags, has sparked a mass-removal of Confederate flags from public places, as noted on this blog here (flag) and here (license plates).
     Now that Roof's personal site The Last Rhodesian is not hosting all his photos, you can see him, at other sites, with gun and Confederate flag, and sitting on a car hood above a Confederate license plate. Walker dissenting Justices take note. (Justice Breyer, in the Court's opinion, mentions one curious license plate, "'The Iodine Products State' (South Carolina)". However, iodine, sadly, is not enough to disinfect all the wounds recently inflicted in that State...)
     Of course, the coincidence is astounding, that the Walker decision came out around the time of the shooting. It may be God's way of reminding us that social reality should drive the law, not just the other way around.

D. P.J. O'Rourke Meets the Walker Dissent, Wild Things Happen

     Speaking of "astounding": the Cato Institute does some good work, but their brief in Walker has to be seen to be believed. It has P.J. O'Rourke (of the National Lampoon etc.) and other interesting types as authors, and goes "all-out" on the free speech claim not only for the Confederate Sons, but also in the brief itself! including the F-word itself at p. 20. This Ayn-Rand-meets-Ferris-Bueller-meets-Tourette's-Syndrome vibe is a little too much maybe. Yours truly appreciates using some humor in briefs, but actual foul language is not needed.
     However, the Cato brief's "bad behavior" is useful in that it inadvertently makes its opponents' point, since that brief's dirty language shows that when you get on the crazy train, bad things happen.

     And without calling the Four Horsemen dissenting in Walker "crazy"--which could be deemed offensive--, their reasoning seems formalistic to the extreme, when some "legal realism", or just plain "realism", is appropriate.
     For example, if, per Alito, specialty plates are "little mobile billboards" completely up to the purchaser's taste and whim, then why couldn't a plate have a GIF of two (or more) people having a hardcore-pornographic orgy? Or how about the letters DIENGRS or DINGRDI, which look awfully like a death threat against black people? Or how about just plain N--GERS? Under the dissenters' rationale, what could stop that so-called "free speech"?
     In fact, why not a plate saying simply, "F-CK YOU"? Then maybe Texas wouldn't be known as the "Lone Star State", but as the "F-ck You State". Oy vay.
     Common sense is not a crime, and the dissent could've used more of it.

E. The Supreme Court's Ban of Demonstrations on Its Grounds

     Consistency might be good too. That is, hilariously enough, the Court is not too happy with free speech on its home turf, see Regulation Seven at Building Regulations. If they have a problem with that free speech or sign-waving, why would they have a problem with Texas restricting a rebel, officially-racist power's flag on a State license plate?

F. White Walkers/Walkers, Wise Latina, Wise African Americans

     And Justice Thomas, voting with the four "liberals" in Walker, may be suspected by some of having a better grip than many people do of understanding just how awful that Confederate power really was. But do we have to assume that he is a "wise African American", like Justice Sotomayor's "wise Latina"? Or is it the opposite, that the four white Republican Justices have a particularly unwise or isolated view of reality?
     Does that make them "White Walkers", to riff off a term from Game of Thrones? Feel free to speculate... But moving from "White" and "Walker" to Waterloo:

G. An Overdue Waterloo for Confederate Flags

     Just as the recent Juneteenth celebrates the Waterloo of slavery and the Confederacy (cf. this blog's 200th-anniversary-of-Waterloo posts here and here--and note that Napoleon banned slavery long before America or the British Empire did), we should welcome the Waterloo of Confederate flags in this country.
     Free-speech formalists and fanatics may lament the disappearance of that flag, since someone's opinion is being curtailed. But, in the real world, certain opinions, or forms of them (Confederate flags; burning crosses; calling someone a "slut" to their face) can be seen as harassment or even terrorism, which may chill more speech--and end more lives--than banning or discontinuing hate-symbol "speech" may do. Balances have to be weighed, but if "haters gonna hate", maybe they should to it with their own bumper sticker or website rather than dragging the State, and us taxpayers, into their ugliness.

Coda: Law and Love after Charleston

     Does the law have to be "nice", though? Does it always have to promote civility and decency? Maybe not, since it does protect ugly speech.
     However, when a State vector (license plate, passport) is used, then arguably the Law becomes, or is identified with, the hate. And that's just too much, frankly.
     The poem Law Like Love by W.H. Auden compares the two "big L's", noting that between them there's
A timid similarity,
We shall boast anyway:
Like love I say.

Like love we don't know where or why,
Like love we can't compel or fly,
Like love we often weep,
Like love we seldom keep.
     Pace Auden, though, maybe, after Charleston, we can keep faith in love, and law, with people of all races and backgrounds in this country. Maybe we can avoid any further of the "strange fruit" that Billie Holiday mentioned, if we can try to have a fruitful and non-violent dialogue in this country about the issues concerned. Much is possible. If we put forth the effort. Peace.

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