SUPREME COURT OF THE UNITED STATES
_________________
No. 14–144
_________________
JOHN WALKER, III, CHAIRMAN, TEXAS DEPARTMENTOF
MOTOR VEHICLES BOARD, et al., PETITIONERS
v. TEXAS
DIVISION, SONS OF CONFEDERATE VETERANS, INC., et al.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[June 18, 2015]
Justice Alito, with whom The Chief Justice,
Justice Scalia, and Justice Kennedy join, dissenting.
The Court’s decision passes off private speech
as government speech and, in doing so, establishes a precedent that
threatens private speech that government finds displeasing. Under
our First Amendment cases, the distinction between government
speech and private speech is critical. The First Amendment “does
not regulate government speech,” and therefore when government
speaks, it is free “to select the views that it wants to express.”
Pleasant Grove City v.
Summum, 555 U. S. 460 –468
(2009). By contrast, “[i]n the realm of private speech or
expression, government regulation may not favor one speaker over
another.”
Rosenberger v.
Rector and Visitors of Univ. of
Va., 515 U. S. 819, 828 (1995) .
Unfortunately, the Court’s decision categorizes
private speech as government speech and thus strips it of all First
Amendment protection. The Court holds that all the privately
created messages on the many specialty plates issued by the State
of Texas convey a government message rather than the message of the
motorist displaying the plate. Can this possibly be correct?
Here is a test. Suppose you sat by the side of a
Texas highway and studied the license plates on the vehicles
passing by. You would see, in addition to the standard Texas
plates, an impressive array of specialty plates. (There are now
more than 350 varieties.) You would likely observe plates that
honor numerous colleges and universities. You might see plates
bearing the name of a high school, a fraternity or sorority, the
Masons, the Knights of Columbus, the Daughters of the American
Revolution, a realty company, a favorite soft drink, a favorite
burger restaurant, and a favorite NASCAR driver.
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? If a car with a plate that says “Rather
Be Golfing” passed by at 8:30 am on a Monday morning, would you
think: “This is the official policy of the State—better to golf
than to work?” If you did your viewing at the start of the college
football season and you saw Texas plates with the names of the
University of Texas’s out-of-state competitors in upcoming
games—Notre Dame, Oklahoma State, the University of Okla-homa,
Kansas State, Iowa State—would you assume that the State of Texas
was officially (and perhaps treasonously) rooting for the
Longhorns’ opponents? And when a car zipped by with a plate that
reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born
in California, raised in Indiana, resides in North
Carolina)[
1] is the official
favorite of the State government?
The Court says that all of these messages are
government speech. It is essential that government be able to
express its own viewpoint, the Court reminds us, because otherwise,
how would it promote its programs, like recycling and vaccinations?
Ante, at 5–6. So when Texas issues a “Rather Be Golfing”
plate, but not a “Rather Be Playing Tennis” or “Rather Be Bowling”
plate, it is furthering a state policy to promote golf but not
tennis or bowling. And when Texas allows motorists to obtain a
Notre Dame license plate but not a University of South-ern
California plate, it is taking sides in that long-time rivalry.
This capacious understanding of government
speech takes a large and painful bite out of the First Amendment.
Specialty plates may seem innocuous. They make motorists happy, and
they put money in a State’s coffers. But the precedent this case
sets is dangerous. While all license plates unquestionably contain
some government speech (
e.g., the name of the State
and the numbers and/or letters identifying the vehicle), the State
of Texas has converted the remaining space on its specialty plates
into little mobile billboards on which motorists can display their
own messages. And what Texas did here was to reject one of the
messages that members of a privategroup wanted to post on some of
these little billboards be-cause the State thought that many of its
citizens would find the message offensive. That is blatant
viewpoint discrimination.
If the State can do this with its little mobile
billboards, could it do the same with big, stationary billboards?
Suppose that a State erected electronic billboards along its
highways. Suppose that the State posted some government messages on
these billboards and then, to raise money, allowed private entities
and individuals to purchase the right to post their own messages.
And suppose that the State allowed only those messages that it
liked or found not too controversial. Would that be
constitutional?
What if a state college or university did the
same thing with a similar billboard or a campus bulletin board or
dorm list serve? What if it allowed private messages that are
consistent with prevailing views on campus but banned those that
disturbed some students or faculty? Can there be any doubt that
these examples of viewpoint discrimination would violate the First
Amendment? I hope not, but the future uses of today’s precedent
remain to be seen.
I
A
Specialty plates like those involved in this
case are a recent development. License plates originated solely as
a means of identifying vehicles. In 1901, New York became the first
State to require automobiles to be licensed, but rather than issue
license plates itself, New York required drivers to display their
initials on their cars. J. Minard & T. Stentiford, A Moving
History 50 (2004). Two years later, Massachusetts became the first
State to issue license plates. The plates said “Mass. Automobile
Register” and displayed the vehicle’s registration number.
Id., at 51. Plates of this type—featuring a registration
number, the name of the State, and sometimes the date—were the
standard for decades thereafter. See
id., at 52–94; see also
generally, J. Fox, License Plates of the United States 10–99
(1997).
Texas license plates initially followed this
pattern. When the first official state plate appeared in 1917, it
featured a number and the abbreviation “TEX.” Texas Department of
Transportation, The History of Texas License Plates 9 (1999)
(History). In 1925, the year of issue was added, and the State
began issuing plates that identified certain vehicle types,
e.g., “C-M” for commercial trucks (1925),
id., at
14–15; “FARM” for farm trucks (1935),
id., at 22;
“Overwidth” (1949),
id., at 32; “House Trailer” (1951),
id., at 36. In 1936, a special plate with the word
“CENTENNIAL” was created to mark the State’s 100th birthday, and
the first plate identifying the owner as a “State Official”
appeared two years later.
Id., at 20, 25. Starting in the
1950’s, Texas began issuing plates to identify some other
registrants, such as “Amateur Radio Operator” (1954),
id.,
at 38, “State Judge” (1970)
id., at 64; and “Disabled
Veteran,” (1972),
id., at 79.
A sesquicentennial plate appeared in 1985, and
two years later, legislation was introduced to create a bronze
license plate with 14-karat gold-plated lettering, available for a
fee of $1,000.
Id., at 81. The proposal aimed to make the
State a profit, but it failed to pass.
Ibid.
It was not until 1989 that anything that might
be considered a message was featured regularly on Texas plates. The
words “The Lone Star State” were added “as a means of bringing
favorable recognition to Texas.”
Id., at 82.
Finally, in the late 1990’s, license plates
containing a small variety of messages, selected by the State,
became available for the first time.
Id., at 101. These
messages included slogans like “Read to Succeed,” “Keep Texas
Beautiful,” “Animal Friendly,” “Big Bend National Park,” “Houston
Livestock Show and Rodeo,” and “Lone Star Proud.”
Id., at
101, 113. Also issued in the 1990’s were plates bearing the names
of colleges and universities, and some plates (
e.g., “State
of the Arts,” “State Capitol Restoration”) were made available to
raise funds for special purposes.
Id., 101.
Once the idea of specialty plates took hold, the
number of varieties quickly multiplied, and today, we are told,
Texas motorists can choose from more than 350 messages, including
many designs proposed by nonprofit groups or by individuals and
for-profit businesses through the State’s third-party vendor. Brief
for Respondents at 2; see also Texas Department of Motor Vehicles,
online at
http://www.txdmv.gov / motorists / license-plates / specialty - license-plates
(all Internet materials as visited June 12, 2015,and available in
Clerk of Court’s case file); http://www.myplates.com.
Drivers can select plates advertising
organizations and causes like 4–H, the Boy Scouts, the American
Legion, Be a Blood Donor, the Girl Scouts, Insure Texas Kids,
Mothers Against Drunk Driving, Marine Mammal Recovery, Save Texas
Ocelots, Share the Road, Texas Reads, Texas Realtors (“I am a Texas
Realtor”), the Texas State Rifle Association (“WWW.TSRA.COM”), the
Texas Trophy Hunters Association, the World Wildlife Fund, the
YMCA, and Young Lawyers.[
2]
There are plates for fraternities and sororities
and for in-state schools, both public (like Texas A & M and
Texas Tech) and private (like Trinity University and Baylor). An
even larger number of schools from out-of-state are honored:
Arizona State, Brigham Young, Florida State, Michigan State,
Alabama, and South Carolina, to name only a few.
There are political slogans, like “Come and Take
It” and “Don’t Tread on Me,” and plates promoting the citrus
industry and the “Cotton Boll.” Commercial businesses can have
specialty plates, too. There are plates advertising Remax (“Get It
Sold with Remax”), Dr. Pepper (“Always One of a Kind”), and Mighty
Fine Burgers.
B
The Texas Division of Sons of Confederate
Veterans (SCV) is an organization composed of descendants of
Confederate soldiers. The group applied for a Texas specialty
license plate in 2009 and again in 2010. Their proposed design
featured a controversial symbol, the Confederate battle flag,
surrounded by the words “Sons of Confederate Veterans 1896” and a
gold border. App. 29. The Texas Department of Motor Vehicles Board
(or Board) invited public comments and considered the plate design
at a meeting in April 2011. At that meeting, one board member was
absent, and the remaining eight members deadlocked on whether to
approve the plate. The Board thus reconsidered the plate at its
meeting in November 2011. This time, many opponents of the plate
turned out to voice objections. The Board then voted unanimously
against approval and issued an order stating:
“The Board has considered the information
and finds it necessary to deny this plate design application,
specifically the confederate flag portion of the design, because
public comments have shown that many members of the general public
find the design offensive, and because such comments are
reasonable. The Board finds 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.”
Id., at 64–65.
The Board also saw “a compelling public interest
in protecting a conspicuous mechanism for identification, such as a
license plate, from degrading into a possible public safety issue.”
Id., at 65. And it thought that the public interest required
rejection of the plate design because the controversy surrounding
the plate was so great that “the design could distract or disturb
some drivers to the point of being unreasonably dangerous.”
Ibid.
At the same meeting, the Board approved a
Buffalo Soldiers plate design by a 5-to-3 vote. Proceeds from fees
paid by motorists who select that plate benefit the Buffalo Soldier
National Museum in Houston, which is “dedicated primarily to
preserving the legacy and honor of the African American soldier.”
Buffalo Soldier National Museum, online at
http://www.buffalosoldiermuseum.com. “Buffalo Soldiers” is a
nickname that was originally given to black soldiers in the Army’s
10th Cavalry Regiment, which was formed after the Civil War, and
the name was later used to describe other black soldiers. W. Leckie
& S. Leckie, The Buffalo Soldiers: A Narrative of the Black
Cavalry in the West 21, 26–27 (2003). The original Buffalo Soldiers
fought with distinction in the Indian Wars, but the “Buf-falo
Soldiers” plate was opposed by some Native Americans. One leader
commented that he felt “ ‘the same way about the Buffalo
Soldiers’ ” as African-Americans felt about the Confederate
flag. Scharrer, Specialty License Plates can Bring in Revenue, But
Some Stir Up Controversy, Hous-ton Chronicle, Nov. 26, 2011, P.B2.
“ ‘When we see the U. S. Cavalry uniform,’ ” he
explained, “ ‘we are forced to relive an American
holocaust.’ ”
Ibid.
II
A
Relying almost entirely on one
precedent—
Pleasant Grove City v.
Summum, 555
U. S. 460 —the Court holds that messages that private groups
succeed in placing on Texas license plates are government messages.
The Court badly misunderstands
Summum.
In
Summum, a private group claimed the
right to erect a large stone monument in a small city park.
Id., at 464. The 2.5-acre park contained 15 permanent
displays, 11 of which had been donated by private parties.
Ibid. The central question concerned the nature of the
municipal government’s conduct when it accepted privately donated
monuments for placement in its park: Had the city created a forum
for private speech, or had it accepted donated monuments that
expressed a government message? We held that the monuments
represented government speech, and we identified several important
factors that led to this conclusion.
First, governments have long used monuments as a
means of expressing a government message. As we put it, “[s]ince
ancient times, kings, emperors, and other rulers have erected
statues of themselves to remind their subjects of their authority
and power.”
Id., at 470. Here in the United States,
important public monuments like the Statue of Liberty, the
Washington Monument, and the Lincoln Memorial, express principles
that inspire and bind the Nation together. Thus, long experience
has led the public to associate public monuments with government
speech.
Second, there is no history of landowners
allowing their property to be used by third parties as the site of
large permanent monuments that do not express messages that the
landowners wish to convey. See
id., at 471. While “[a] great
many of the monuments that adorn the Nation’s public parks were
financed with private funds or donated by private parties,” “cities
and other jurisdictions take some care in accepting donated
monuments” and select those that “conve[y] a government message.”
Id., at 471–472. We were not presented in
Summum with
any examples of public parks that had been thrown open for private
groups or individuals to put up whatever monuments they
desired.
Third, spatial limitations played a prominent
part in our analysis. See
id., at 478–479. “[P]ublic parks
can accommodate only a limited number of permanent monuments,” and
consequently permanent monuments “monopolize the use of the land on
which they stand and interfere permanently with other uses of
public space.”
Ibid. Because only a limited number of
monuments can be built in any given space, governments do not allow
their parks to be cluttered with monuments that do not serve a
government purpose, a point well understood by those who visit
parks and view the monuments they contain.
These characteristics, which rendered public
monuments government speech in
Summum, are not present in
Texas’s specialty plate program.
B
1
I begin with history. As we said in
Summum, governments have used monuments since time
immemorial to express important government messages, and there is
no history of governments giving equal space to those wishing to
express dissenting views. In 1775, when a large gilded equestrian
statue of King George III dominated Bowling Green, a small park in
lower Manhattan,[
3] the
colonial governor surely would not have permitted the construction
on that land of a monument to the fallen at Lexington and Concord.
When the United States accepted the Third French Republic’s gift of
the Statue of Liberty in 1877, see
id., at 477, Congress, it
seems safe to say, would not have welcomed a gift of a Statue of
Authoritarianism if one had been offered by another country. Nor is
it likely that the National Park Service today would be receptive
if private groups, pointing to the Lincoln Memorial, the Martin
Luther King, Jr., Memorial, and the Vietnam Veterans Memorial on
the National Mall, sought permission to put up monuments to
Jefferson Davis, Orval Faubus, or the North Vietnamese Army.
Governments have always used public monuments to express a
government message, and members of the public understand this.
The history of messages on license plates is
quite different. After the beginning of motor vehicle registration
in 1917, more than 70 years passed before the proliferation of
specialty plates in Texas. It was not until the 1990’s that
motorists were allowed to choose from among 10 messages, such as
“Read to Succeed” and “Keep Texas Beautiful.” History at 101.
Up to this point, the words on the Texas plates
can be considered government speech. The messages were created by
the State, and they plausibly promoted state programs.[
4] But when, at some point within the
last 20 years or so, the State began to allow private entities to
secure plates conveying their own messages, Texas crossed the
line.
The contrast between the history of public
monuments, which have been used to convey government messages for
centuries, and the Texas license plate program could not be
starker.
In an attempt to gather historical support for
its position, the Court relies on plates with the mottos or symbols
of other States. As the Court notes, some of these were issued well
before “The Lone Star State” made its debut in Texas in 1991.
Id., at 82. But this history is irrelevant for present
purposes. Like the 1991 Texas plate, these out-of-state plates were
created by the States that issued them, and motorists generally had
no choice but to accept them. For example, the State of New
Hampshire made it a crime to cover up the words “Live Free or Die”
on its plates. See
Wooley v.
Maynard, 430 U. S. 705
(1977) .
The words and symbols on plates of this sort
were and are government speech, but plates that are essentially
commissioned by private entities (at a cost that exceeds $8,000)
and that express a message chosen by those entities are very
different—and quite new. Unlike in
Summum, history here does
not suggest that the messages at issue are government speech.
2
The Texas specialty plate program also does
not exhibit the “selective receptivity” present in
Summum.
To the contrary, Texas’s program is
not selective by design.
The Board’s chairman, who is charged with approving designs,
explained that the program’s purpose is “to encourage private
plates” in order to “generate additional revenue for the state.”
Ibid., 58. And most of the time, the Board “base[s] [its]
decisions on rules that primarily deal with reflectivity and
readability.”
Ibid. A Department brochure explains: “Q. Who
provides the plate design? A. You do, though your design is subject
to reflectivity, legibility, and design standards.”
Id., at
67.b.
Pressed to come up with any evidence that the
State has exercised “selective receptivity,” Texas (and the Court)
rely primarily on sketchy information not contained in the record,
specifically that the Board’s predecessor (might have) rejected a
“pro-life” plate and perhaps others on the ground that they
contained messages that were offensive. See
ante, at 11
(citing Reply Brief 10 and Tr. of Oral Arg. 49–51). But even if
this happened, it shows only that the present case may not be the
only one in which the State has exercised viewpoint
discrimination.
Texas’s only other (also extrarecord) evidence
of selectivity concerns a proposed plate that was thought to create
a threat to the fair enforcement of the State’s motorvehicle laws.
Reply Brief 9–10 (citing publicly avail-able Transcript of Texas
Department of Motor Vehicles Board Meeting, Aug. 9, 2012, p. 112,
online at
http://www. txdmv. gov / reports - and - data / doc _ download / 450 – 2012 –tran-aug9).
This proposed plate was a Texas DPS Troopers Foundation (Troopers)
plate, proposed in 2012. The Board considered that proposed plate
at an August 2012 meeting, at which it approved six other plate
designs without discussion, but it rejected the Troopers plate in a
deadlocked vote due to apparent concern that the plate could give
the impression that those displaying it would receive favored
treatment from state troopers.
Id., at 109–112. The
constitutionality of this Board action does not necessarily turn on
whether approval of this plate would have made the message
government speech. If, as I believe, the Texas specialty plate
program created a limited public forum, private speech may be
excluded if it is inconsistent with the purpose of the forum.
Rosenberger, 515 U. S., at 829.
Thus, even if Texas’s extrarecord information is
taken into account, the picture here is different from that in
Summum. Texas does not take care to approve only those
proposed plates that convey messages that the State supports.
Instead, it proclaims that it is open to all private
messages—except those, like the SCV plate, that would offend some
who viewed them.
The Court believes that messages on privately
created plates are government speech because motorists want a seal
of state approval for their messages and therefore prefer plates
over bumper stickers.
Ante, at 10–11. This is dangerous
reasoning. There is a big difference between government speech
(that is, speech by the government in furtherance of its programs)
and governmental blessing (or condemnation) of private speech. Many
private speakers in a forum would welcome a sign of government
approval. But in the realm of private speech, government regulation
may not favor one viewpoint over another.
Rosenberger,
supra, at 828.
3
A final factor that was important in
Summum was space. A park can accommodate only so many
permanent monuments. Often large and made of stone, monuments can
last for centuries and are difficult to move. License plates, on
the other hand, are small, light, mobile, and designed to last for
only a relatively brief time. The only absolute limit on the number
of specialty plates that a State could issue is the number of
registered vehicles. The variety of available plates is limitless,
too. Today Texas offers more than 350 varieties. In 10 years, might
it be 3,500?
In sum, the Texas specialty plate program has
noneof the factors that were critical in
Summum, and the
Texas program exhibits a very important characteristic that was
missing in that case: Individuals who want to display a Texas
specialty plate, instead of the standardplate, must pay an
increased annual registration fee.See
http://www.dmv.org/tx-texas/license-plates.php. How many groups or
individuals would clamor to pay $8,000 (the cost of the deposit
required to create a new plate) in order to broadcast the
government’s message as opposed to their own? And if Texas really
wants to speak out in support of, say, Iowa State University (but
not the University of Iowa) or “Young Lawyers” (but not old ones),
why must it be paid to say things that it really wants to say? The
fees Texas collects pay for much more than merely the
administration of the program.
States have not adopted specialty license plate
programs like Texas’s because they are now bursting with things
they want to say on their license plates. Those programs were
adopted because they bring in money. Texas makes public the revenue
totals generated by its specialtyplate program, and it is apparent
that the programbrings in many millions of dollars every year.
Seehttp://www. txdmv. gov / reports - and - data / doc _ download / 5050 –specialty-plates-revenue-fy-1994-2014.
Texas has space available on millions of little
mobile billboards. And Texas, in effect, sells that space to those
who wish to use it to express a personal message—provided only that
the message does not express a viewpoint that the State finds
unacceptable. That is not government speech; it is the regulation
of private speech.
III
What Texas has done by selling space on its
license plates is to create what we have called a limited public
forum. It has allowed state property (
i.e., motor vehicle
license plates) to be used by private speakers according to rules
that the State prescribes. Cf.
Good News Club v.
Milford
Central School, 533 U. S. 98 –107 (2001). Under the First
Amendment, however, those rules cannot discriminate on the basis of
viewpoint. See
Rosenberger, 515 U. S., at 829 (quoting
Cornelius v.
NAACP Legal Defense & Ed. Fund,
Inc., 473 U. S. 788, 806 (1985) ). But that is exactly
what Texas did here. The Board rejected Texas SCV’s design,
“specifically the confederate flag portion of the design, because
public comments have shown that many members of the general public
find the design offensive, and because such comments are
reason-able.” App. 64. These statements indisputably demonstrate
that the Board denied Texas SCV’s design because of its
viewpoint.
The Confederate battle flag is a controversial
symbol. To the Texas Sons of Confederate Veterans, it is said to
evoke the memory of their ancestors and other soldiers who fought
for the South in the Civil War. See
id., at 15–16. To
others, it symbolizes slavery, segregation, and hatred. Whatever it
means to motorists who display that symbol and to those who see it,
the flag expresses a viewpoint. The Board rejected the plate design
because it concluded that many Texans would find the flag symbol
offensive. That was pure viewpoint discrimination.
If the Board’s candid explanation of its reason
for rejecting the SCV plate were not alone sufficient to establish
this point, the Board’s approval of the Buffalo Soldiers plate at
the same meeting dispels any doubt. The proponents of both the SCV
and Buffalo Soldiers plates saw them as honoring soldiers who
served with bravery and honor in the past. To the opponents of both
plates, the images on the plates evoked painful memories. The Board
rejected one plate and approved the other.
Like these two plates, many other specialty
plates have the potential to irritate and perhaps even infuriate
those who see them. Texas allows a plate with the words “Choose
Life,” but the State of New York rejected such a plate because the
message “ ‘[is] so incredibly divisive,’ ” and the Second
Circuit recently sustained that decision.
Children First
Foundation, Inc. v.
Fiala, ___ F. 3d ___, ___, 2015
WL 2444501, *18 (CA2, May 22, 2015). Texas allows a specialty plate
honoring the Boy Scouts, but the group’s refusal to accept gay
leaders angers some. Virginia, another State with a proliferation
of specialty plates, issues plates for controversial organizations
like the National Rifle Association, controversial commercial
enterprises (raising tobacco and mining coal), controversial sports
(fox hunting), and a professional sports team with a controversial
name (the Washington Redskins). Allowing States to reject specialty
plates based on their potential to offend is viewpoint
discrimination.
The Board’s decision cannot be saved by its
suggestion that the plate, if allowed, “could distract or disturb
some drivers to the point of being unreasonably dangerous.” App.
65. This rationale cannot withstand strict scrutiny. Other States
allow specialty plates with the Confederate Battle Flag,[
5] and Texas has not pointed to
evidence that these plates have led to incidents of road rage or
accidents. Texas does not ban bumper stickers bearing the image of
the Confederate battle flag. Nor does it ban any of the many other
bumper stickers that convey political messages and other messages
that are capable of exciting the ireof those who loathe the ideas
they express. Cf.
Good News Club,
supra, at
111–112.
* * *
Messages that are proposed by private parties
and placed on Texas specialty plates are private speech, not
government speech. Texas cannot forbid private speech based on its
viewpoint. That is what it did here. Because the Court approves
this violation of the First Amendment, I respectfully dissent.
APPENDIX
Sample Texas Specialty Plates
All found at
http://txdmv.gov/motorists/license-plates/specialty-license-plates