Don’t Mess with Texas — It Might Deny Your Specialty License Plate: A Review of the Supreme Court’s Decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc.

The Supreme Court of the United States recently ruled that the State of Texas did not violate the First Amendment when it refused to approve a specialty license plate that featured the Confederate battle flag. The case arose after the Texas Division of the Sons of Confederate Veterans petitioned Texas to approve the specialty license plate. When Texas refused, the Sons of the Confederate Veterans claimed that the refusal violated its First Amendment right to free speech. In deciding the issue, the Supreme Court considered two First Amendment doctrines: (1) the First Amendment’s prohibition of viewpoint discrimination wherein the government cannot preference one opinion over another; and (2) the reality that, when the government speaks, it is “not barred by the Free Speech clause from determining the content of what it says.”

Justice Stephen Breyer authored the majority opinion of the Court. Justice Breyer acknowledged that the “government can speak for itself,” and then explained that “when the government speaks, it is entitled to promote a program, to espouse a policy, or to take a position.” Ultimately, the majority concluded that the specialty license plates conveyed government speech because:

• First, license plates “long have communicated messages from the States.”

• Second, the public identifies license plates with 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.”

• Third, Texas “maintains direct control over the messages conveyed” on the license plates. Texas law provides that the State “has sole control” over the alphanumeric pattern, color, design, and typeface for all license plates.

Justice Samuel Alito authored the dissent. Justice Alito explained that specialty license plates convey the message of the motorist displaying the plate rather than of the government and that, by holding otherwise, the majority improperly characterizes private speech as government speech and deprives that speech of First Amendment protection. He then offered this uncharacteristically-humorous explanation:

If a car with a plate that says “Rather Be Golfing” passed by . . . would you think: “This is the official policy of the State — better to golf than to work?” If you . . . saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games . . . would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?

Justice Alito’s point is that no rational person would believe that the specialty license plates represent government speech and further that the holding of the majority constitutes viewpoint discrimination that “takes a large and painful bite out of the First Amendment.”

A few interesting points to consider:

• Justice Clarence Thomas, generally viewed as one of the most conservative member of the Court, joined the four liberal justices (Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor) and cast the deciding vote.

• Other States, including the State of Tennessee, have specialty license plates that feature the Confederate battle flag. The Supreme Court’s decision now permits these States to ban the Confederate battle flag from these specialty license plates. Will they?

• The Supreme Court’s decision permits a State to refuse other specialty license plates or, conversely, to approve specialty license plates of a political nature that set forth the State’s position on certain political issues.