In Walker v. Texas Division, Sons of Confederate Veterans (2015), the Supreme Court in a 5-4 ruling rejected the claim that specialty license plates are a protected form of private speech, and ruled that specialty license plates are government speech and thus immune from any requirement of viewpoint neutrality.
Texas offers residents ordinary and specialty license plates for vehicles. Those who want the state to offer a specialty plate can propose a design for the plate. Texas retains the authority to approve or disapprove specialty plate designs. One reason the state provides for disapproval is “if the design might be offensive to any member of the public . . . or for any other reason established by rule.”
In 2010, the Texas Division of the Sons of Confederate Veterans (SCV) filed an application for a specialty plate featuring the Confederate battle flag and the text, “Sons of Confederate Veterans.” The state denied the request. The SCV filed suit, alleging that the state had violated the Free Speech Clause of the First Amendment.
The Court’s opinion, written by Justice Breyer, framed the issue as whether the proposed license plate was private speech protected by the First Amendment, or government speech. The Court noted that the Free Speech Clause is intended to foster discussion and debate among members of the public. Such debates produce informed opinions among the public, who then influence the choices made by government. The government speech that results, according to the Court, is thus a product of the democratic electoral process.
Because of this, government is not barred by the First Amendment in determining what it says. Otherwise, according to the majority, government speech would be hobbled because the government would continually be forced to acknowledge multiple points of view on any given issue. “How,” the Court asked by way of example, “could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?” It would not, the Court concluded, be easy to imagine how government could function if it lacked the freedom to select the messages it needed to convey.
In considering the SCV’s contention that the specialty plate represented protected free speech, the Court noted that license plates are essentially government IDs. Because of this, “a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message.” This, coupled with the fact that Texas retains control over the messages conveyed on the plates reflects that plates convey government speech: “Texas offers plates that say ‘Fight Terrorism.’ But it need not issue plates promoting al Qaeda.”
Justice Alito’s dissent argued that given that there are more than 350 different specialty license plates in Texas, specialty license plates are a private expression in a public forum, and rejecting submitted designs because it might be offensive is unconstitutional viewpoint discrimination. The majority opinion rejected that contention by pointing out that Texas exercises final authority over what is portrayed on the license plates; as such, the plates do not offer a forum for free speech.
SEE ALSO: Nationalization of the Bill of Rights