Should the House Call for the Confederate Flag to be Removed From “Government Speech”? (H. Res. 12)

What is H. Res. 12?

(Updated August 26, 2021)

This resolution would express the sense of the House of Representatives that the U.S. can achieve a more perfect union by avoiding “government speech” that promotes or displays symbols, signs, and vestiges of racism, oppression, and intimidation at all levels of government (such as the Confederate flag). It states that such symbols “promote division and tear at the fabric of the American society” and that by discontinuing the use of such symbols it would promote tolerance and unity.

“Government speech” is a constitutional law doctrine which holds that the government isn’t required to be viewpoint neutral when it is the speaker. For example, under the First Amendment the government can’t deny a group the right to hold a rally in a park, but it can decline to include their views in programs at public schools.

As a simple resolution, this legislation wouldn’t advance to the Senate if passed by the House and wouldn’t have the force of law.

Argument in favor

Governments should use their discretion to not include the Confederate flag and other symbols of bigotry and oppression in instances of “government speech”.

Argument opposed

Governments should be more permissive in terms of including things like the Confederate flag or objectionable symbols when exercising “government speech”.

Impact

Government speech that includes the Confederate flag or similar symbols of racism, oppression, and intimidation.

Cost of H. Res. 12

A CBO cost estimate is unavailable.

Additional Info

In-Depth: This resolution, introduced by Rep. Sheila Jackson Lee (D-TX), cites a 2015 ruling by the U.S. Supreme Court in  as an example of types of government speech that shouldn’t include references to racism. The case involved the Texas Division of the Sons of Confederate Veterans who sought to have a specialty license plate bearing a Confederate flag issued in the state of Texas. The state denied their request, and the group filed suit on First Amendment grounds.

In a 5-4 ruling with Justice Clarence Thomas joining the Court’s liberal justices, the Supreme Court affirmed the state of Texas’ decision to not allow the license plate to be made. The majority cited a 2009 case in which the Court held that a Utah city’s decision not to include a monument to a minor religion in a park that had one to the Ten Commandments was a valid government speech. The four dissenting justices posited that specialty license plates are a form of government speech that give individuals greater opportunities for expressing themselves, and thus should be considered private speech and protected.

This legislation has the support of one cosponsor in the House, Rep. Steve Cohen (D-TN).

Media:

• New York Times (Context)
  
• SCOTUSblog (Context)