No First Amendment Violation

The U.S. Supreme Court, in a 5-4 decision, determined that specialty license plates issued per Texas’s statutory scheme convey government speech. As such, the Texas Department of Motor Vehicles’ refusal to issue a specific specialty plate design requested by the Sons of the Confederate Veterans, and displaying the Confederate flag, did not constitute a violation of the First Amendment right to free speech. While the Court ultimately determined that these specialty license plates were a form of government speech, it also noted that the designs could implicate the free speech rights of private individuals.

Like other statutory schemes, Texas law requires that all drivers display a valid license plate. Drivers are given the option of displaying a State-issued license plate or specialty license plate. Specialty plates are issued by the State in one of three ways: the legislature can choose to commission a specific license plate design, the Texas Department of Motor Vehicles Board may approve a specialty plate proposal by a private vendor, or the Board may approve a specialty plate design sponsored by a nonprofit entity.

The Sons of the Confederate Veterans is a nonprofit entity that sought to sponsor a specialty license plate. On their plate, SCV proposed a design that featured a Confederate flag framed with the words “Sons of Confederate Veterans 1896.” The Board denied SCV’s specialty plate design. In 2010, SCV sought to renew its application before the Board. After inviting public comment both at an open meeting and on its website, the Board unanimously voted against issuing this specialty design. The Board cited the overwhelmingly negative public response to the plate calling the design offensive and hateful. SCV then brought this litigation arguing that the Board and its members had violated their First Amendment guarantee of the freedom of speech.

In reaching its conclusion in Walker v. Texas Division, Sons of Confederate Veterans, the Court began by looking at a similar case, Pleasant Grove City v. Summum. In Summum, the court determined that the government’s acceptance and erection of a privately donated monument constituted government speech. In this case, the historical use of the license plates demonstrated that the State used them to convey more than just vehicle identification numbers. Rather, the State used these plates to convey particular messages to the public. Second, the Court considered the public perception of these license plates. Because these plates are seen as a form of government identification, the Court determined that the public often associates license plates with the State. Finally, the Court looked at the degree of governmental control and found that the State was involved in every aspect of the specialty plate design process.

While the Court ruled that this action was a form of governmental speech, it also recognized that government speech is not wholly without restraint and cannot be used to compel a specific message from private actors. In choosing a specialty plate to display on a car, an individual is seeking to convey a particular message to others. However, just as the government cannot compel private persons to express a particular message, SCV could not require the government to express theirs.