Yesterday I discussed the second Supreme Court oral argument I attended in a recent trip to the Supreme Court. Today I describe the basic controversy in the first oral argument I attended, in a case potentially implicating the First Amendment. First Amendment law is complicated, so this is the first of several posts on the case.

Texas specialty license plates

State license plates, affixed to vehicles to permit legal use on public roads, typically come in one or very few standard designs. But in many states you can purchase a specialty plate with special imagery, designs, coloring, &c. (Specialty plates are distinct from “vanity” plates. A vanity plate has custom letters and numbers, e.g. a vegetarian might request LUVTOFU.) Some state legislatures direct that specialty designs delivering particular messages be offered. And some state legislatures enact laws that permit organizations or individuals to design specialty plates.

The state of Texas sells both legislatively-requested designs and designs ordered by organizations or individuals. (The latter kind require an $8000 bond, covering ramp-up costs until a thousand plates are sold.) The DMVB evaluates designs for compliance with legislated criteria: for example, reflectivity and legibility concerns. One criterion allows (but does not require) Texas to reject “offensive” plates.

The department may refuse to create a new specialty license plate if the design might be offensive to any member of the public.

An “offensive” specialty plate design

Texas rejected one particular design for just this reason. As they say, a picture is worth a thousand words:

For those unfamiliar with American imagery: the central feature of the Texas SCV insignia is the Confederate flag. Evoking many things, but in some minds chiefly representative of revanchist desire to resurrect Southern racism, Jim Crow, and the rest of that sordid time. Such minds naturally find the Confederate flag offensive.

Is the SCV actually racist? (Assuming you don’t construe mere use of the flag as prima facie evidence.) A spokesman denies the claim. Web searches find some who disagree and others who believe it is (or was) of divided view. I find no explicit denunciation of racism on the SCV’s website, but I searched only very briefly. Form your own conclusions.

Tomorrow, specialty plate programs in the courts, and the parties’ arguments.

A couple days ago I found this ugly passage in a United States legal opinion:

The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty.

Take a guess who wrote it, and in what context. A hint, then the answer, after the jump.

(I first heard the song several months back, but the 95th anniversary of Billie Holiday‘s birthday today presented a convenient excuse to prerecord a post for now.)

Disturbing, depressing, haunting:

Via the excellent Night Lights Jazz Program, at around 26:35 (make sure to check out their archives of weekly broadcasts dating back to 2004, some great stuff in the back-episodes I’ve enjoyed). The song later went on to be called the song of the century by Time magazine. According to the broadcast, when Billie Holiday performed Strange Fruit at the Café Society nightclub, it was as her last number of the night; its owner, Barney Josephson, couldn’t imagine her following it with anything else (quite understandably, I think). I’d never heard it before now, and while I can’t quite say I’m glad to have heard it, it was worth hearing. Anyway, something to think about.

(Apologies for disrupting your day if you find you can’t get the song or its topic out of your mind. For some reason, at least for me personally, it feels like historic treatment of racism in the South is rather more clinical and sparse than, say, treatment of the Holocaust during World War II, which is probably why I find the song and lyrics so disturbing — they’re fresh and novel. Emphasis is certainly important concerning history of this nature, but relentless repetition [if nowhere else, I think I got that with respect to Nazi Germany in my high school German classes] desensitizes one to emotional impact. It’s unfortunate we don’t treat topics such as these more carefully — neither excessively nor sparingly, and with the right amount of gravity and eloquence.)