Dead Confederates, A Civil War Era Blog

Federal Court: State Acted Within Authority on SCV Plates

Posted in Memory by Andy Hall on April 15, 2013

scv_plate3-200x109I was sure wrong about that one. While I thought the case would turn on the Equal Protection Clause (because the state issues specialty plates to everyone and their dog already), and thus go in the SCV’s favor, the court rejected that notion, in part because the SCV has recourse to other avenues (such as direct action by the Lege) to get that accomplished:


Although suggesting a petitioner for judicial relief should look to the legislative branch for assistance is usually the practical equivalent of there being no relief available, here the Texas Legislature can and frequently has approved a variety of plates — including controversial plates, such as ‘Choose Life’ — by direct legislative action.


As it happens, the Lege is in session in Austin right now, so there’ s six weeks left to get some action on this, if the Texas SCV chooses to go that route.

I also thought this, from the ruling, was interesting:


The SCV repeatedly argues the fact the Buffalo Soldiers plate was approved indicates SCV was subjected to viewpoint discrimination. . . . [The] SCV speculates Native Americans would be offended by the Buffalo Soldiers plate, because of the role played by African-American troops in the frontier wars of the nineteenth century. However, the record does not support this assertion: in contrast to the chorus of negative public comments raised against the SCV’s plate, there appears to have been no significant objection to the Buffalo Soldiers plate, rendering SCV’s assertion the Buffalo Soldiers plate is equally derogatory at best purely speculative.


This encapsulates what I was trying to get at when I wrote this post. Whether the SCV thinks that the Buffalo Soldiers “should” be viewed as offensive to Native Americans as the CBF is to some others, the evidence that that’s the case just isn’t there. It was a weak argument to begin with, and while I’m surprised at the court’s decision, I’m glad they saw that part of it the same way.

Still, it’s a surprising outcome I didn’t expect. On to the Fifth Circuit in New Orleans!

H/t Kevin.


Why the SCV will Lose in Lexington, and Win in Texas

Posted in Memory by Andy Hall on March 12, 2012

Several weeks ago the Virginia Division of the Sons of Confederate Veterans filed a lawsuit in federal court in Roanoke against elected officials in the City of Lexington, in response to that community’s adoption of a new ordinance barring anything other than official U.S., Virginia and city flags being flown at public facilities downtown and on the Veterans Memorial Bridge.

Concurrently, the Texas Division of the SCV is pursuing legal action against the state here, challenging the state’s rejection of a special license plate promoting the SCV. Both lawsuits lean heavily on the Equal Protection Clause of the 14th Amendment. While both these cases are only beginning their journey through the courts, and there are plenty of arguments yet to be made on both sides, I believe the SCV will lose in Lexington, but prevail in Texas. And the Equal Protection Clause lies at the core of both outcomes.

Lexington first. The lawsuit names the City of Lexington and eight individuals, in their “official capacity,” as defendants. These include Mayor Mimi Elrod, City Manager Jon Ellestad, and all six members of the current City Council. Mary P. Harvey-Halseth, a council member who voted against the ordinance, and David Cox, another member who was absent from the meeting, are also included as defendants. You can read the SCV’s federal complaint here (which includes the text of the new ordinance on p. 6), and the minutes of the September 1, 2011 Lexington City Council meeting here.

Public display of Confederate flags — as Brooks Simpson points out, there’s not just one — has long been a contentious issue in Lexington. Twenty years ago, the city tried to ban displays of the Confederate flag on public property, and lost their case in 1993 (Sons of Confederate Veterans, Virginia Division v. City of Lexington, Virginia, et al.,). At that time, the court ruled that the city could not prevent others

to wear, carry, display or show, at any government-sponsored or government-controlled place or event which is to any extent given over to private expressive activity, the Confederate Flag or other banners, emblems, icons, or visual depictions. . . .

The emphasis here is mine, and it’s central to the court’s decision. The ruling in 1993 is based not only on the First Amendment right of Free Speech, but also on the Equal Protection clause of the 14th Amendment, that requires governmental entities to enact laws and policies in an equitable way, without making exceptions, good or bad, for any particular group. That’s clearly what the court had in mind when ruled that the Confederate flag could be displayed in any forum that “is to any extent given over to private expressive activity.” If you do it for one, you have to do it for another.

The Equal Protection Clause is important here because the First Amendment, on its own, is insufficient when it comes to government-sponsored or government-hosted expression. The First Amendment, by itself, is not enough. Freedom of Speech has never been absolute; it does not extend to libelous speech, or direct incitement to violence. And there’s nothing about the First Amendment that obligates Lexington to host on its property any private organization’s emblem or banner — not mine, not yours, and not the Virginia SCV’s. First Amendment concerns only become relevant here if the City of Lexington extends that privilege to some, but not others.

The City of Lexington understood this when crafting the ordinance to exclude all flags except those of select government entities — federal, state and local. The ordinance bars Confederate flags, but only because it bars all others, including those of the two universities in town, the Virginia Military Institute and Washington & Lee. There’s no question that, embarrassed by the conjunction on the calendar of Lee-Jefferson Day and the MLK federal holiday, they were seeking to find a legal way to resolve future conflicts, and so adopted an ordinance that would bar all other flags. That’s a calculation the city council in Lexington chose to make, and they’re on solid legal ground. Even one of the leaders of the “Virginia Flaggers,” a group that protests perceived slights to Confederate symbols and who’s an outspoken critic of the Lexington ordinance, acknowledged at the time of its passage that the “ordinance is air tight. I agree.

The Texas case, by contrast, presents an entirely different set of facts – namely, that the state already offers dozens of different plate designs for private organizations and causes. Like dolphins? There’s a plate for that. Proud of your alma mater? There’s a plate for that. Are you a Master Gardener? A Dallas Mavericks fan? Do you love red grapefruit? There are plates for all those things. Why, we have plates for schools that aren’t even in Texas. And that’s why, in my view, Texas will be unable to defend its decision last November to deny the SCV plates. If you do it for one, you have to do it for another. And when it comes to specialty license plates, Texas already does it for damn nearly everybody.

As it happens, my own county’s Tax Assessor-Collector, Cheryl Johnson, sits on the TxDot board that considers plates, and voted in favor of the plate the first time it came up for a vote. She later explained her vote by saying that the SCV “have sued before to get the license plate [in other states] and have won. I voted in favor because I didn’t think the state would win any lawsuit.” She’s right about that last part, in my view. (That first vote, in which Johnson voted in favor of the proposal, was a tie; she was not present for the November meeting where it was voted down, 8-0.)

The Lexington and Texas cases bear some similarities; both challenge governmental entities’ decisions to bar the Confederate Battle Flag from display on a public venue. Both lawsuits also base their core arguments on the Equal Protection Clause of the 14th Amendment. But the specific facts of the two cases are miles apart. So long as Lexington continues to bar all outside banners, their ordinance almost certainly falls in line with the Equal Protection Clause, and so passes constitutional muster. Texas, on the other hand, has a years-long history of granting specialty plates to just about any organization that seeks one.

They haven’t got a legal leg to stand on.

Image: Virginia Flaggers rally in January 2012 at Hopkins Green in Lexington to call for the defeat of Mayor Mimi Elrod. Image via

Didn’t See That One Coming.

Posted in Memory by Andy Hall on November 10, 2011

From the Austin American-Statesman:

The state Department of Motor Vehicles’ governing board has just voted down a proposal for a specialty license plate displaying the Confederate battle flag.

The vote was unanimous.

I could see this vote going either way, but figured it would be close regardless. (It was a 4-4 tie last time around.) Previously I mentioned that one of my county elected officials, Cheryl Johnson, was on the board and had previously voted in favor of the measure, citing the inevitability of a lawsuit if it were not approved. She apparently did not attend the meeting today and so did not vote on the measure.


Hey, Mississippi SCV: This is How It’s Done

Posted in Media, Memory by Andy Hall on February 16, 2011

There didn’t seem to be much else to be said about the Mississippi SCV’s Nathan Bedford Forrest commemorative license plate proposal, but Robert Moore suggested Wednesday that a better choice would be to put a generic Confederate soldier on it. This seems appropriate for several reasons, among others that there are a helluva lot more SCV members (and well as Mississippians generally) related to rank-and-file soldiers than there are descendants of cavalry generals. Such a plate might also serve as a point to generate constructive conversations with the public, including:

“Who was that man in the uniform?”

“What made-up the Confederate soldier, who, in turn, became the Confederate veteran?”

“How was the individual man part of the Confederate story?”

“Was he willing, unwilling?”

“Was he enthusiastic for ‘the cause’… for ‘a cause’?”

And so on. One of Robert’s commenters suggested the plates feature some of Don Troiani’s uniform studies. It’s a capital idea.

The SCV could issue five plates, one for each year of the war, each celebrating a “common man” (or woman) from the conflict. An early-war infantryman for 2011 (below). A civilian woman from Vicksburg in 2013. A former slave in the USCT for 2015. (Well, maybe that last one wouldn’t go over so well with the SCV. But it would sure work for a state-sponsored plate.) There are lots of other possibilities.

It’s colorful, it carries a bit of history, and it certainly comes closer to reflecting the Civil War experience of typical Mississippians better than one bearing the picture of a millionaire slave trader from Memphis. Granted, it doesn’t have quite the in-your-face impact of a big-ass flag out on the interstate, but sometimes less is more, ya know?


Image: Soldier of the 17th Mississippi Infantry, Company I, Pettus Rifles by Don Troiani.