In Walker v. Texas Division, Sons of Confederate Veterans, 115 S.Ct. 2239 (2015), the U.S. Supreme Court ruled 5-4 that the state of Texas could deny a specialty license plate to the Sons of the Confederate Veterans without violating the First Amendment.
Instead, the majority reasoned that specialty license plates were a form of government speech and, therefore, immune from First Amendment scrutiny.
Texas rejected Sons of Confederate Veterans specialty license plate
The Texas Division of the Sons of Confederate Veterans proposed a specialty plate that prominently featured the Confederate battle flag. The Texas Department of Motor Vehicles Board rejected the plate, reasoning that too many people find the Confederate flag offensive.
The Sons of Confederate Veterans sued, claiming that the Board had committed unlawful viewpoint discrimination. A federal district court ruled in favor of the Board. However, a divided three-judge panel of the Fifth U.S. Circuit Court of Appeals reversed, finding that the specialty license plates were a form of private speech and that the state denial of the plate design amounted to viewpoint discrimination.
Supreme Court upheld Texas decision, ruled license plates convey messages from the State
On further appeal, the U.S. Supreme Court reversed the Fifth Circuit’s panel decision. The Court majority, in an opinion by Justice Stephen Breyer, reasoned that the plates were a form of government speech. Breyer analogized the specialty license plate program to monuments in a public park, which the Court had declared a form of government speech in Pleasant Grove v. Summum (2009). Breyer wrote that license plates are a form of government identification and communicate messages from the State.
“Indeed, 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,” Breyer wrote. “If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate.”
Breyer also noted that, like the monuments in the public park in the Summum decision, the state of Texas retained final approval authority over the content of the specialty license plates.
Alito dissented, questioned whether drivers see license plates as views of government
Justice Samuel A. Alito, Jr. authored a dissenting opinion, criticizing the majority for “pass[ing] off private speech as government speech. Alito asked whether people watching cars passing by with specialty license plates would view the messages on the plates as primarily those of the government or of the drivers: “As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?”
Alito warned that the majority’s broad application of the government speech doctrine “takes a large and painful bite out of the First Amendment.”
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2017.