Hot plates

>> Thursday, June 25, 2015

Last week, I was ranting and raving about the Confederate flag on the South Carolina capitol grounds.  Since that post, the governor of South Carolina, Nikki Haley, joined by Senator Lindsey Graham (the chief whipping boy of my previous post) has called for the removal of the traitor's flag.  Some of my fellow travelers on the left have impugned her motives on this score--some have noted that South Carolina's rootin' tootin' racism has cost the state outside business investments, some have commented on the political favor Governor Haley does for the Republican party by taking this particular embarrassment off the table at the beginning of the campaign season.  I'm not going to join in that particular dinging; rather, I'll point out that people frequently do the right things for the wrong reasons and the wrong things for the right reasons, and that a deluge begins with a single raindrop, and a small advance up the side of a cliff is always preferable than falling down it again.

To be clear, taking the flag down isn't going to solve our nation's problems with racism; if the American Civil War and Reconstruction failed to do so, it would be magical thinking indeed to imagine removing a single symbol is all it takes to make everything better.  But it's a small, achievable step: maybe if the symbol gets hidden away to the museum it belongs in (a label saying "Never Again" would be too much to hope for, yet we'll hope), it won't be there to preserve and promote the post-Reconstruction historical revisionism that turned a bloody fight over white-supremacy-based chattel slavery and the nation's soul into a "noble" "Lost Cause" over "state's rights" and "Yankee aggression".  At the least, maybe it won't be a public face-slap to the victims of past and present racial disparities.

It's a step, anyway.

And in keeping with the deluge/raindrops cliche, there's the promising sign that the South Carolina confederate flag fracas has been followed by feeling a few more drops on our upturned faces.  We're talking about the racism of the Confederate States of America more than we usually do, we're talking about other places the flag ought to be removed from.

As an utterly trivial f'r'instance, Warner Bros., doubtlessly motivated more than commerce than moral fortitude (but again, who cares?), is removing the Confederate flag from the top of the Dukes of Hazzard's General Lee custom Charger.  And you might well ask, "So what?"  Well, it's pop culture icons like the General Lee that perpetuate the "heritage not hate" canard and obscure the flag's connection to a nation founded on the premise that white superiority not only justified but mandated chattel slavery of blacks.  The flag on the car roof normalizes it, makes it frivolous, makes it the icon for "good ol' boys, never meanin' no harm," rather than the icon of men who said things like "the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition."  Just a few years ago--in 2012--Warner told the New York Times they had no intention of taking the flag off the car.  And now they're taking the flag off the car.

It's worth pointing out at this juncture, I think, that symbolism clearly meant a lot to the murderer of Cynthia Hurd, Susie Jackson, Ethel Lee Lance, DePayne Middleton-Doctor, Clementa Pinckney, Tywanza Sanders, Daniel L. Simmons, Sr., Sharonda Singleton, and  Myra Thompson.  He liked his flags, or so it appears.  It's also worth pointing out that the solidarity that has manifested in the short term around his crimes (and we hope it lasts into the long term) is probably not the effect he intended.  It's doubtful he meant for the symbols of his deviancy and irrelevance to become a source of embarrassment, a target of sustained criticism, and to be removed from view with a recognition that these are symbols of hurt and hatred.

The idea that the flag needs to go away has spread, and is now manifesting in my own home state with a small contretemps over the NC Sons of Confederate Veterans specialty license plate.  Unfortunately, we seem to be getting it wrong.

Governor Pat McCrory, in what has become a rare moment of moral clarity, has called for the state legislature to do away with the traitor flag on the plate.  The State House has responded that they don't need to do a thing, the Governor can do away with the plate without their help.  The Governor's spokesperson has made the surrebuttal that state law requires a civic group's plate to include the civic group's insignia, hence the need for legislative change.

Oh, if only there were, I don't know, some kind of recent U.S. Supreme Court case directly on point (PDF link).

So, to bring you up to speed, here's what's happening: the NC Division of Motor Vehicles has been authorized under  NC General Statute §20-79.4 to issue more than 250 flavors of specialty plate, which is a gimmicky but effective way to generate revenue, since nearly all of the specialty plates cost a vehicle owner an additional fee (the military service plates, such as the plates for Bronze Star recipients, don't cost anything to those who qualify for them).  Parenthesis 42 under the statute allows DMV to issue a special plate for "Civic Clubs":

(42)      Civic Club. - Issuable to a member of a nationally recognized civic organization whose member clubs in the State are exempt from State corporate income tax under G.S. 105-130.11(a)(5). Examples of these clubs include Jaycees, Kiwanis, Optimist, Rotary, Ruritan, and Shrine. The plate shall bear a word or phrase identifying the civic club and the emblem of the civic club. A person may obtain from the Division a special registration plate under this subdivision for the registered owner of a motor vehicle or a motorcycle. The registration fees and the restrictions on the issuance of a specialized registration plate for a motorcycle are the same as for any motor vehicle. The Division may not issue a civic club plate authorized by this subdivision unless it receives at least 300 applications for that civic club plate.

Now, as it happens, back in 1997, the NC chapter of the Sons of Confederate Veterans (NC SCV) applied for a specialty tag under §20-79.4(42), and as it happens, the "emblem of the civic club" is a variation of the Battle Flag of the Army of Northern Virginia or Second Confederate Navy Jack--I'm putting a picture of the plate next to this paragraph, so if you didn't already know what we were talking about, now you have no excuse.  And the NC DMV denied the plate--the then-Commissioner of the DMV offering as an official rationale that the NC SCV "does not meet the statutory criteria for a civic club".

I will allow that this was pretty obviously a bullshit excuse.  I mean, transparently bullshit.  The NC SCV had all the legal makings of a "civic club" within the purposes of the statute, and one suspects that the "not a civic club" justification was merely a non-First Amendment-implicating cover for an actual rationale that the NC SCV are tacky, insensitive assholes who want to commemorate a chapter of our state's history that we are simultaneously embarrassed by and proud of, humblebragging that we were the last state to secede and first to give blood to the Civil War (as an aside, the latter portion of that may or may not be true).  Not to mention the offensiveness of the symbol.  Or the way North Carolina has spent much of the past fifty years trying to be the Newest and Shiniest state of the New South--we would much prefer that when you think of us, you think of Charlotte banking and Triangle R&D, and how much fun your yuppies and hipsters can have in Asheville or Wrightsville Beach.  (We have a wine country now.  I want to be clear about that: we have a wine country.  Don't think, "North Carolina, segregated lunch counters"--that was all very sixty years ago; think, "North Carolina, mmm, delicious, delicious wiiiiiine."  Please?)

Anyway, you'll be unsurprised (I hope) to learn that the NC SCV sued and won, and the NC DMV appealed, and the NC SCV still won.  But the issue wasn't the sacred First Amendment right of assholes to be public assholes; the sole issue that the NC Court of Appeals addressed in North Carolina Division of Sons of Confederate Veterans v. Faulkner, 131 N.C. App. 775, 509 S.E.2d 207 (1998) was whether the NC SCV was a club, specifically a "civic club".  The only Constitutional comment from the appellate branch was in the first of the court's two footnotes:

1 SCV's emblem strikingly resembles the Confederate flag. We are aware of the sensitivity of many of our citizens to the display of the Confederate flag. Whether the display of the Confederate flag on state-issued license plates represents sound public policy is not an issue presented to this Court in this case. That is an issue for our General Assembly. We are presented only with the issue of whether SCV-NCD [Sons of Confederate Veterans - North Carolina Division] has complied with the language of section 20-79.4(b)(5), and note that allowing some organizations which fall within section 20-79.4(b)(5)'s criteria to obtain personalized plates while disallowing others equally within the criteria could implicate the First Amendment's restriction against content-based restraints on free speech.

If that was the last word in the matter, then the Governor's office would clearly be quite right that this was a legislative matter.  There it is in very plain text: the court is only interested in whether the NC SCV has complied with the Motor Vehicle Code, and oh-by-the-way, if the court were to look into a free speech issue, well, yeah, they'd probably have to find against the state then, too, if--but it's not before us.

But last week--a complete coincidence--the US Supreme Court decided a case brought by the Texas Division of the Sons of Confederate Veterans against the Texas Department of Motor Vehicles, and the Texas SCV lost.  In a five-four ruling, the Court held in Walker v. Texas Division, Sons of Confederate Veterans (2015) (still a PDF link) that "Texas’s specialty license plate designs constitute government speech and that Texas was consequently entitled to refuse to issue plates featuring SCV’s proposed design."

I think what this means for the NC DMV is that the DMV probably can--by way of an executive order--simply stop issuing these plates on the grounds that the State of North Carolina has a right not to endorse an offensive message on public policy grounds.  Except.  There's a wrinkle.  Why is there always a wrinkle?

I started this post with some harsh words for Governor McCrory, who I assumed (and I think not unreasonably, frankly) was simply ducking and weaving a potentially controversial issue by kicking it over to the State House, and that the Legislature was returning the serve tit-for-tat.  But then I'm looking over the opinion in Walker and I notice something about the Texas specialty plate statute.  According to Justice Breyer:

The relevant [Texas] statute says that the Board "may refuse to create a new specialty license plate" for a number of reasons, for example “if the design might be offensive to any member of the public... or for any other reason established by rule."  Tex. Transp. Code Ann. §504.801(c).

Not really a fan of Texas law (coincidentally, I was looking up a point of Texas law for personal reasons not too long ago: I'm an informed not really a fan of Texas law, this isn't just me talking out my ass like I normally do; they're kinda crazy, and no, that's not a surprise), but this provision seems... pretty logical.  I qualify that because on the one hand you have common sense that suggests the DMV really ought to be able to reject the most fucked-up license plate proposals to cross their desks because, I mean, c'mon seriously, people?!  On the other hand you have the First Amendment to the United States Constitution (applicable to the states by way of the Fourteenth Amendment, natch), and it's generally been held that the government isn't really supposed to question the dickery of its worst citizens, even when they're obviously trolling, except in the most egregious and extraordinary of situations.  So while the Texas statute seems logical, I can also see where it could be an endless source of bureaucratic and legal headdesking.

But, anyway, you know what I did, right?  Yeah, I went back to the goddamn North Carolina Motor Vehicle Code and started looking for the similar rejection provision in the North Carolina statute, and guess what I found?  Let me put it this way: you're welcome to look, and you may be smarter and less-lazy and more observant and you probably smell better and have nicer teeth, but I couldn't find it and I think I couldn't find it because it isn't there, not because I'm an idiot (although, you know, yeah).  Which is... pretty logical.  because on the one hand you have common sense that suggests the DMV really ought to be able to reject the most fucked-up license plate proposals to cross their desks because, I mean, c'mon seriously, people?!  On the other hand you have the First Amendment to the United States Constitution (applicable to the states by way of the Fourteenth Amendment, natch), and it's generally been held that the government isn't really supposed to question the dickery of its worst citizens, even when they're obviously trolling, except in the most egregious and extraordinary of situations.  So while the North Carolina statute seems logical, I can also see where it could be an endless source of bureaucratic and legal headdesking.

(You, ah, see what I did there, right?  Anyway.)

It occurs to me that the "transparently bullshit" excuse Commissioner Faulkner offered the NC SCV back in 1997 was, unfortunately, the only one available to her, since the legislature didn't actually give her a "dude, shit no, go away" option.

And you see the wrinkle, right?  While the DMV may have a constitutional right per Walker to decline to express some viewpoints for public policy reasons, they don't appear to have a statutory mechanism for actually doing so.  As far as I can tell, the North Carolina General Statutes merely say that if someone qualifies for a plate, they get the plate.

The wrinkle has wrinkles.  As far as I understand Walker, the Supreme Court absolutely is not saying that the Sons of Confederate Veterans can't have a Sons of Confederate Veterans plate; the Court only says, "Texas’s specialty license plate designs constitute government speech and that Texas was consequently entitled to refuse to issue plates featuring SCV’s proposed design."  So the SCV can come back with a less-patently-offensive design and if the Texas DMV doesn't have a problem, they have to issue a plate.  North Carolina's statute says, "The plate shall bear... the emblem of the civic club" (emphasis added).  If a duly-recognized, tax-exempt civic club has three hundred applicants apply for a specialty tag and it just so happens that the club's emblem is an Anthony Weiner dick pic... I guess the highways are jammed with penis photos of a New York Congress guy.  (Yes, you can totally sing that last line if you know the tune.  Get out your lighter when you do.)

The way this could work, see, is the Governor takes the Legislature's bait.  No more NC SCV plates, please.  The NC SCV sues, one imagines.  The case goes up, and the Governor argues "Flag plates are a public forum endorsement of speech we don't have to make because Walker."  The NC SCV argues, "So what, the state still has to follow the law, read Faulkner."  Aaaaand... and I think the Governor loses, actually.

Which meeeeeans... both the State House and Governor's office are kind of right, but the Governor is... more right?  Because ultimately it would be up to the Legislature to either specifically ban traitor flags from plates using Walker as constitutional cover, or to at least give the Governor and DMV authority to reject specific designs on grounds of offensiveness or strong public policy merits?  But either way, it's up to the House?

I think that's how it works out.  So (just so you know), I think I kind of changed my mind while I was writing this.  Not about the fucking flag, which is still the symbol of racists and traitors, but about how it would have to be taken off North Carolina license plates.  And, I hate to reach this conclusion, that leaves me thinking it ain't gonna happen, then, since both sides (the Governor and Legislature, I mean) are going to be able to bounce that ball around until the next Very Bad Thing comes along and we rant about something else for a bit.

And that's the state of the onion.


TimBo Thursday, June 25, 2015 at 2:03:00 PM EDT  

Nice article, three points:
1.) I now know way more about the details of various US states' laws than I really want to know.

2.) These folks want "First In Flight" over their flag? I don't recall too many stories of Confederate soldier fleeing in battle, but hey if that's what they want to emphasize fine with me, but maybe not on government issued license plates.

3.) I think it's great to get rid of this expression of an oppressive regime but what about guns? What happened to rage against allowing every half-wit being allowed to carry a concealed automatic hand gun?

Eric Thursday, June 25, 2015 at 6:22:00 PM EDT  

Re: #3: I don't think anyone's lost their rage against guns, it's just that the Supreme Court has pretty much mooted the issue for a generation by finding that the Second Amendment creates a personal right to bear weapons, as opposed to a state right to maintain militias. There's a very small area of gun control legislation that might be permissible under the current understanding of the Constitution, and it wouldn't do much to keep hooligans like the Charleston assassin from easily obtaining a legally-available weapon.

On a related point, I think it's a given that someone who murders nine people is suffering from more than just racism, and if what it is hasn't been diagnosed, it represents a further failure of America's mental health system. But that's not an area that we're likely to see much help in, either.

Racism, though? We can take some small steps in the right direction. Maybe.

Re: #2: Nice. Well-played. (The state motto, as you may or may not know up in Canada, is of course a reference to the Wright brothers' first flights at Kitty Hawk. The brothers were from Ohio, and North Carolina and Ohio have been fighting for primacy as the birthplace of powered flight for some years now.)

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