On June 18, 2015, the U.S. Supreme Court decided Walker v. Texas Division, Sons of Confederate Veterans, No. 14-144, holding that a State’s specialty vehicle license plates constitute government speech, so a State that allows private groups or individuals to propose customized designs and messages for vehicle license plates does not violate the First Amendment if it rejects a proposed message based on its contents.
In recent years Texas has allowed private groups and individuals to propose customized designs and messages for specialty vehicle license plates. But the State “must approve each specialty plate design proposal before the design can appear on a Texas plate.” The Sons of Confederate Veterans proposed a specialty-plate design that would include the Confederate battle flag. Texas rejected the design on the ground that many members of the general public reasonably find the design offensive. The Sons of Confederate Veterans sued, claiming this violated the First Amendment’s guarantee of freedom of speech. The district court ruled in favor of the State, but the Fifth Circuit reversed, holding that the State’s rejection of the design was “constitutionally forbidden viewpoint discrimination.”
The Supreme Court reversed in a 5-4 vote. The Court held that license plate designs are the speech of the State itself, and the State “is not barred by the Free Speech Clause from determining the content of what it says.” The Court concluded that the government’s choice of which messages to place on license plates is analogous to the choice of which monuments to place in public parks, which the Court has previously held is government speech where viewpoint discrimination is permitted, even when the monuments are donated by individuals or non-government groups. The Court stated that because Texas presents the license-plate designs on government-mandated, government-controlled, and government-issued IDs that have traditionally been used as a medium for government speech, the designs are meant to convey and have the effect of conveying a government message, and thus constitute government speech. The Court observed that “when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position,” and concluded that Texas may do the same in selecting messages for its license plates.
The fact that the designs were proposed by private groups did not change the outcome, because “the government entity may exercise its freedom to express its views even when it receives assistance from private sources for the purpose of delivering a government-controlled message.” The Court also concluded that the fact that individual drivers must pay a fee to display the specialty plates did not render them private speech.
Justice Breyer delivered the opinion of the Court, in which Justices Thomas, Ginsburg, Sotomayor, and Kagan joined. Justice Alito filed a dissenting opinion, joined by Chief Justice Roberts and Justices Scalia and Kennedy.