As promised in our earlier post, Reed v. Gilbert: Impact to municipalities across the nation, this post provides a summary of Walker v. Texas Division, Sons of Confederate Veterans, a case that, coupled with Reed, has led some to comment on the deeply divergent (and confusing) First Amendment precedent from the most recent SCOTUS term. Unlike Reed, Walker is viewed as a victory for state and local government, affirming the well-recognized principle: “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”

In 2009, the Sons of Confederate Veterans (SCV), applied to sponsor a specialty license plate to be approved by the Texas Department of Motor Vehicles. The application included a draft plate design featuring the confederate flag and was denied. In 2010, the SCV renewed its application before the Texas Department of Motor Vehicles Board (Board) and was denied yet again. The Board rejected the proposal in response to public comment showing that many members of the general public found the confederate flag plate design offensive. The Board commented that “a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”

In 2012, the SCV sued the Board, alleging violations of the First Amendment’s Free Speech Clause. The District Court found in favor of the Board and the Fifth Circuit reversed. The Fifth Circuit held that Texas’ specialty license plate designs are private speech and that in refusing to approve the confederate flag design, the Board engaged in constitutionally forbidden viewpoint discrimination. The Fifth Circuit’s decision in Walker is available here.

The Supreme Court’s majority opinion, authored by Justice Breyer, reversed the decision of the Fifth Circuit, First, the Supreme Court concluded that the history of license plates displaying graphics and including logos, shows that license plates have long communicated messages from States. Accordingly, the Court determined that specialty license plates are a form of government speech, not private speech as found by the Fifth Circuit.

Next, the majority found that the governmental nature of the plates is “clear from their faces” because the State dictates the content, display, issuance, design and disposal of every Texas license plate. Texas license plates, according to the Court, are essentially, government IDs, serving the governmental purposes of vehicle registration and identification. Issuers of IDs typically do not permit the placement of messages with which they do not wish to be associated and Texas license plate designs “are often closely identified in the public mind with the State.” Texas maintains direct control over the messages conveyed on specialty plates, which allows it to choose how to present itself and its constituency.

Finally, the Court dismissed the Free Speech claim, stating: “Texas specialty plate designs are meant to convey and have the effect of conveying a government message… [and] constitute government speech.” Governmental statements, actions, and programsthat take the form of speech do not normally implicate the First Amendment. When the government speaks, it is entitled to promote a program, espouse a policy, or take a position. In doing so, the government represents its citizens and carries out duties on their behalf.

Justice Breyer ended the majority opinion by noting that the Court’s decision does not mean that specialty license plate designs do not implicate the free speech rights of private people, and recognized that the First Amendment limits the states’ authority to compel a private party to express a view with which they disagree:

just as Texas cannot require the SCV to convey the State’s ideological message, they cannot force Texas to include a Confederate battle flag on its specialty license plates.

Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Kennedy, dissented. Justice Alito argued that, with over 350 varieties, Texas specialty license plates are an expression of individuals as opposed to the government. According to the dissent, license plates are a limited public forum because Texas has allowed state property to be used by private speakers. The dissenting justices argue that under the First Amendment, the rules Texas places on specialty license plates cannot discriminate on the basis of viewpoints. In their view, Texas rejected the confederate flag design because it is a controversial symbol and therefore the rejection was unconstitutional viewpoint discrimination.

Original photography by Texas.713 (Licensed)

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