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94 Tex. L. Rev. See Also 1 (2015-2016)

handle is hein.journals/seealtex94 and id is 1 raw text is: Texas Law Review See Also Volume 94 Essay Of Horses, Donkeys, and Mules By David A. Anderson* The Court treats matters that are inextricably intertwined as if they were discrete.' In Walker v. Texas Division, Sons of Confederate Veterans, Inc. 2 the Supreme Court held that the State of Texas did not violate the First Amendment by rejecting a specialty license plate design that included an image of the Confederate battle flag.3 All of the justices agreed that the question was whether the message on the plate was government speech or private speech.4 The four conservative justices said it was private speech in a public forum, and therefore the state's rejection of the symbol was viewpoint discrimination forbidden by the First Amendment.5 * Fred and Emily Marshall Wulff Centennial Chair in Law, The University of Texas School of Law. 1. With apologies to Thomas Reed Powell, who said, 'Ji]f you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind. THURMAN W. ARNOLD, THE SYMBOLS OF GOVERNMENT 101 (1935) (internal quotation marks omitted). 2. 135 S. Ct. 2239 (2015). 3. Id. at 2253. The state rejected the design because of its potential to offend people. Id. at 2245. By coincidence, the Court's decision was announced the morning after a mass murder in a South Carolina church by a white supremacist who embraced the Confederate battle flag. Karen Workman & Andrea Kannapell, The Charleston Shooting: What Happened, N.Y. TIMES, June 18, 2015, http://www.nytimes.com/2015/06/18/us/the-charleston-shooting-what-happened.html, archived at http://penma.cc/ZA6A-VBRC. That event set off a nationwide movement to remove the flag from public places, which may have made the decision less controversial than it would otherwise have been. 4. See 135 S. Ct. at 2246 (Breyer, J.); id. at 2254 (Alito, J., dissenting). 5. 135 S. Ct. at 2256 (Alito, J., dissenting).

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