Should the Confederate flag still fly?
01:27 - Source: CNN

Editor’s Note: Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

Story highlights

Cevallos: 150 years after the end of the Confederacy, it's time to turn the page and abandon a symbol associated with slavery.

He says Supreme Court was right to allow Texas to ban such flag license plates; why does flag fly in S.C.?

CNN  — 

One hundred and fifty years after the end of the Confederacy and the Civil War, the Confederate flag is in the news. It’s an enduring, but consistently divisive image in the United States. And its time should finally be up.

There is controversy over whether a government like that of South Carolina should continue to display the flag and fly it at full, rather than half-mast after the cold-blooded killing of nine people at the Emanuel AME Church in Charleston by a man who said he was at the church “to shoot black people.”

Coincidentally, in a case out of Texas, the United States Supreme Court Thursday reversed a lower court holding, concluding that the State of Texas could lawfully refuse a license plate design featuring the flag known as the “Southern Cross” and submitted for plate approval by the Texas Sons of Confederate Veterans.

Danny Cevallos

Of course, our collective outrage has been inconsistent over the years. From 1979 to 1985, one long-running hit television show featured heroes who drove a 1969 Dodge Charger…with a Confederate flag on the roof, and a horn that played Dixie. Not only was “The Dukes of Hazzard” a hit, kids everywhere in the early 80s wanted a toy car just like the General Lee – flag and all.

And surely, TV shows and stunt cars are about private speech, and as long as the public consumed the programming, no one seemed to mind the not-too-subtle nods to the Confederacy…plus Bo, Luke, and Daisy Duke were a ratings bonanza.

License plates and flags on capitol buildings, on the other hand, implicate government speech. Our governments have the power to select their own speech and should use this symbolic power wisely, since they speak for their constituents.

First, there is much debate about the fact that a Confederate flag still flies on the grounds of the statehouse in Columbia. Should South Carolina still incorporate the Confederate flag as part of the government imagery?

It was relocated from the capitol dome to the Confederate memorial in 2000. But this flag apparently was first flown over the capitol in 1962 in response to the civil rights push from Washington.

If that’s the case, then this flag is more about segregation, and not about historical rebellion or states’ rights. While you have a right to fly the Southern Cross over your house or on the roof of your Dodge Charger as a private citizen, state governments should probably avoid any symbols of segregation, and even secession for that matter.

The power of flags after the Charleston shooting

Texas is another story. That state fought all the way to the Supreme Court, and won, for its right to refuse the Confederate flag on its license plate. The Supreme Court recognized that Texas specialty license plates are government speech, and not a forum for unfettered private speech. When government speaks, citizens’ competing free speech rights cannot dictate the content of that government speech.

Even though Texas does accept applications from nonprofit organizations for license plate designs, and even though it gladly collects money from citizens to place those approved designs on its plates, the speech belongs to the state, and it can constitutionally reject the Sons of Confederate Veterans’ plate design.

Still, Justice Alito’s dissenting opinion is worth a read. Alito observes that if the state is collecting money, and allowing citizens to choose from hundreds of different plate options, then practically speaking, the citizens are doing the speaking – not the state.

In Alito’s view, Texas chose to convert space on specialty plates into “little mobile billboards” for chosen messages. Texas rejected one of the messages that a private group wanted to post on some of these little billboards for no other reason than the State thought that many of its citizens would find the message offensive. Alito has a point: that sounds of blatant viewpoint discrimination – even if the message being suppressed is, in fact, offensive to many.

Justice Cevallos’s dissenting opinion would be short, and sparse on legal analysis:

Texas and other state governments: stop being greedy. Stop inducing your citizens to waste money they don’t have on things they don’t need, especially when those things draw you into lengthy and needless First Amendment court battles over ad space on license plates.

And that’s it.

Offering space for sale on license plates is bad business. It’s on par with promoting addictive gambling behavior in the form of the state-sponsored lottery. The government knows it’s wrong, but it just can’t help fleecing money from citizens who want to buy a wasteful product or service.

The only reason this case wasted judicial and state resources is because Texas and other states sell “little billboard” space on their license plates, which got them entangled in the business of speech. Texas was on the right side of the law when it came to refusing the flag, but offering specialty plates are ultimately just a thinly-veiled money grab by the government.

Whether in Texas, South Carolina, or anywhere else, we as a nation have to decide what the Confederate flag actually represents, once and for all.

Why the Confederate flag still flies in South Carolina

Admittedly, I’m one of those people who long thought the flag dually represented the scourge of slavery, while separately it also stood for more innocuous, nonracial concepts, like rebellion, and states’ rights.

That was until renowned Civil War historian and attorney Gordon Rhea educated me while we were on a jury trial together. “A host of reasons motivated Southerners of the Civil War era to become soldiers, including concepts of duty, honor, and manhood … But by joining the Confederate war machine, all of them, irrespective of their personal motivations, advanced their nation’s political agenda – the perpetuation and territorial expansion of human bondage and the misery that it entailed.”

Of course, telling the populace one thing to cover a war’s true purpose is nothing new: whether it’s states’ rights or grainy photos of weapons of mass destruction, the government has been bamboozling citizens into war for centuries. But it appears that the South fought the Civil War for slavery, and that the Confederate flag represented that political mission.

Unfortunately, the apartheid symbolism of the Southern Cross cannot be severed from its other meanings. It’s interesting: in a time where we are wringing our hands over sports mascots like the Washington Redskins, or the Coachella Valley Arabs, we’re clearly Bo-and-Lukewarm about the Confederate flag. If you want one on a license plate in Texas, it’s not allowed. But if you display it at a state capitol, it might be okay.

Citizens should be free to hang whatever bad decisions on their wall that they want; our governments should be more discriminating when it comes to symbolism…and selling citizens on bad decisions.

Follow us on Twitter @CNNOpinion.

Join us on

Read CNNOpinion’s Flipboard magazine.