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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