Walker v. Tex. Div., Sons of Confederate Veterans, Inc.,
Annotate this Case
576 U.S. ___ (2015)
SUPREME COURT OF THE UNITED STATES
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) 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.
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.
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.
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.
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.
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, 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. 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.
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.
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.
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, 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.
Sample Texas Specialty Plates
All found at http://txdmv.gov/motorists/license-plates/specialty-license-plates