For those who want the flag to come down, the message is a reminder of white supremacy and the war fought to maintain slavery.
States have been taking Confederate flags and monuments down for years now, and refusing new requests to fly them.
Just this term the Supreme Court in Walker v Texas Sons of Confederate Veterans permitted Texas to reject a specialty license plate proposed by the Sons of Confederate Veterans with a Confederate battle flag on it.
Justice Breyer concluded that what appears on the license plate is a form of government speech and that Texas could decide for itself what speech to permit. When Texas decided that it did not want to include the Confederate battle flag, Breyer concluded there was no first amendment right of members of the Sons of Confederate Veterans to require Texas to include the flag.
Integral to the conclusion that Texas can keep the Confederate battle flag off their license plates are the twin ideas that the government is speaking through the license plates and that Texas can control its own speech.
Such principles were used to justify the 2009 decision of Pleasant Grove City, Utah, to reject a monument from the Summum church for display on public property.
Writing for the majority in City of Pleasant Grove v Summum, Justice Alito said “the display of a permanent monument in a public park” is likely to be perceived as the government’s speech.
The city could reject a religious monument, because observers would think the government was endorsing that monument.
So far, so good: the state can (and many of us believe ought to) reject the display of the Confederate flag on government property.
Now look at the other side of this.