Guest Blog: Leslie Gielow Jacobs, The Court Decides, 5-4, Specialty License Plates are Government Speech

Today, the Court rendered its decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc. The issue was whether the Texas Department of Motor Vehicles could constitutionally refuse to issue a specialty license plate on the ground that “many members of the general public find the [proposed confederate flag] design offensive” because they “associate the confederate flag with organizations [engaged in hate speech].” As expected, the decision hinged on whether the controversial logo, proposed by a private organization to appear on a government-issued license plate, is properly categorized as “government” or “private” speech. The Court split 5-4, with the majority holding that specialty license plate designs are government speech, which means that the Texas DMV was free to pick and choose among the viewpoints proposed for the plates.

The issue was government vs. private speech, and the recent decision relied upon by both the majority and dissent was Pleasant Grove City v. Summum, 555 U.S. 460 (2009). In Summum, a unanimous Court held that privately-donated monuments on permanent display in a public park were government speech. In Walker, the Justices divided on what that case said about the privately-proposed speech that appears on specialty license plates. Justice Breyer, joined by Justices Thomas, Ginsburg, Sotomayor and Kagan, found the speech delivered by park monuments and specialty license plates to fall into the same constitutional category – government speech. Justice Alito, joined by Justices Scalia, Kennedy and Roberts, found the public/private speech combination of license plates to be different enough from park monuments that the private speech forum precedents, which forbid viewpoint discrimination, should control.

Justice Breyer, writing for the majority, plucked three factors from Summum as appropriate to analyze and categorize the speech on specialty license plates. First, governments have traditionally used park monuments to speak. He found the history of license plate designs and mottos to show the same type of government effort to speak. Second, observers view park monuments as bearing the government’s imprimatur. Similarly, Justice Breyer characterized license plates as “government ID’s,” such that observers would reasonably view the speech on them as government speech. Third, Pleasant Grove City engaged in “selective receptivity” of the monuments, and so “effectively controlled” the content of the speech. The majority noted the many ways in which Texas law mandates the appearance and design of license plates, the consistently exercised approval authority of the DMV, and the fact that the state had rejected “at least a dozen” other designs as support for its conclusion that Texas “effectively controls” the speech on its specialty license plates.

Justice Alito, writing for the dissent, relied on two of the Summum factors identified by the majority, and one more, but found them to point to a different result. As to history, he found private slogans on specialty license plates to be a “recent development” entirely unlike public monuments, which have spoken for the government since “time immemorial.” By contrast to the majority, he found the proliferation of plates and few denials to demonstrate a lack of selectivity and no “effective control” of the messaging. Finally, he substituted the “space” consideration from Summum for the “reasonable observer” factor listed by the majority. Important to the Summum decision, he said, was that space in a public park for large immovable monuments is limited, whereas space on small, changeable specialty license plates is not.

An interchange between the majority and the dissent strikes at the heart of the matter. According to the dissent, the Texas program is merely one of “selling space on license plates to private speakers.” “How many groups or individuals would clamor to pay $8,000 … in order to broadcast the government’s message instead of their own?” Justice Alito asks. Whereas, in the eyes of the majority, private groups pay for access because they want to piggyback on the prestige of the government, otherwise they could speak their private message as effectively on a bumper sticker placed just beside the plate. Is the government a mere conduit or a participant in the messaging? The majority’s attempts to distinguish the private speech forum cases (private group “access” to a public school mail system is without a government imprimatur; advertising space on city buses bears no “indicia that the speech was owned or conveyed by the government; private group participation in charitable fundraising program in government workplace gave no reason for employees to interpret the private solicitations as government speech) confirm that perceptions are, and will remain, a critical part of this debate.

The Walker decision is going to have an impact on specialty license plate programs. It does not matter whether plates are approved by the legislature or an agency. So long as the approval process meets the “control” and “selectivity” standards of the Texas system, states may discriminate among specialty plate applications according to viewpoint to the same extent as they may with other types of government messages. The Court specifically did not resolve the status of “vanity” or “personalized” plate programs, under which individuals apply for unique letter and number configurations instead of background designs. Nevertheless, so long as the factor of “effective control” and “selectivity” is present in these programs, the other factors, which apply to license plates more generally, would seem to lead to the same conclusion that these types of plates are also government speech.

The Walker decision will have an impact on other types of government/private speech programs, although how it will apply is less clear. Next in the line of fire are likely to be paid advertising programs on public vehicles. The Walker majority mentioned Lehman v. Shaker Heights, 418 U. S. 298 (1974), which addressed public bus advertising, seeming to confirm that such programs create private speech forums. Lower courts have generally reached the same result. Recently, however, public transit authorities have denied access to issue advertisements, reasoning that they may exclude advertisements that “demean groups” or result in threats to the safety of the transportation system. (Seattle Mideast Awareness Campaign v. King County, 781 F.3d 489 (9th Cir. 2015); American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority, 781 F.3d 571 (1st Cir. 2015). These decisions border on the type of viewpoint discrimination forbidden in a private speech forum and, when they come before the Court, will test the boundaries of today’s decision.

jacobs