The following brief excerpt1 provides an overview of the government speech doctrine, which is at issue in Walker (the next case).

“The government speech doctrine is a fairly recent development in First Amendment law. The Supreme Court has stated that “[a] government entity has the right to speak for itself. It is entitled to say what it wishes, and to select the views that it wants to express.” Thus, the government speech doctrine operates as an exception/defense to the usual First Amendment requirements of content and viewpoint neutrality. Government entities may express or promote their own messages. The key to the doctrine is that the speech must be the government’s own. When the government disfavors or endorses private speech, the usual First Amendment rules of content and viewpoint neutrality apply.

The Court has offered two primary rationales for the government speech doctrine. First, the doctrine recognizes that the effective functioning of government sometimes requires it to express or promote its own viewpoints through its policies. Government entities routinely express certain messages rather than others. A requirement of absolute neutrality regarding the government’s own speech would be untenable. The government, for example, can spend funds to promote its own message of honoring military veterans without being required to spend similar funds honoring the country’s wartime enemies.7 The Court has held that the First Amendment allows such selectivity, provided that the government does not suppress competing private speech or violate another constitutional provision in effectuating its own speech.8

The second rationale for the government speech doctrine relates to democratic accountability. Strict judicial review is applied when the government engages in content or viewpoint discrimination regarding private speech because such suppression or favoritism is usually a sign of a defect in the democratic process.9 When the government privileges or punishes private speech, it is generally because the disfavored speaker or the message is one that the government dislikes, disagrees with, or finds dangerous. Thus, either the speaker or the speech is presumed to be the kind of “discrete and insular minority” for which heightened scrutiny is appropriate since the speaker cannot effectively protect him or herself through the political process.10 By contrast, the Court has stated, “When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy.”11 Thus, the government speech doctrine holds that there is no need for a judicial check on the government’s own speech because such speech is presumably both generated by and subject to correction through normal political processes.

Rust v. Sullivan is considered to be the first major Supreme Court case applying the government speech doctrine. Rust involved a First Amendment challenge to regulations that prohibited programs that received federal family planning funds from providing abortion-related services. The regulations conditioned funding on recipients refraining from engaging in a variety of pro-choice expressive activity. The Court ruled that the First Amendment did not forbid the government from choosing to fund certain programs to the exclusion of others in order to advance its own message. The Court reasoned that the regulations did not punish, proscribe, or privilege private speech based on its viewpoint, but were instead a constitutionally permissible instance of the government using public funds to promote the government’s own anti-abortion speech.

In Legal Services Corp. v. Velasquez, by contrast, the Court found the government speech doctrine inapplicable. Velasquez concerned restrictions imposed on recipients of federal funding from the Legal Services Corporation (LSC) to provide legal services to the indigent. The restrictions prohibited grantees from engaging in legal representation aimed at challenging existing welfare law. Thus, the speech at issue was that of attorneys representing their clients. Various LSC grantees and clients sued, alleging that the restrictions violated the First Amendment. The government argued that the restrictions were permissible under Rust. The Court disagreed, distinguishing Rust as involving the government promoting its own message by transmitting it through private speakers. Velasquez, in the Court’s view, instead involved government facilitation of private speech, not the harnessing of private speech to promote a government message. The Court reasoned that selectively funding private speech for its own sake runs the risk that the government has done so to suppress dangerous or disfavored ideas. When the government itself speaks or promotes its own message by subsidizing private speech, however, it is functioning as another speaker in the marketplace of ideas, and ultimately remains accountable to the voters if they disagree with the message. In short, when promoting the government’s own message is the goal and subsidizing private speech is the means, the government speech exception applies. When promoting or suppressing private speech is the goal, the government speech exception does not apply.

The Velasquez Court rejected the government speech argument, stating that “[t]he lawyer is not the government’s speaker.” Indeed, in a suit challenging existing welfare law on behalf of a client, the attorney’s speech would be in opposition to the government’s position. Accordingly, the Court held, “[t]he advice from the attorney to the client and the advocacy by the attorney to the courts cannot be classified as governmental speech even under a generous understanding of the concept.” Rather, the effect of the funding restriction was to curtail private speech, that is, to “insulate current welfare laws from constitutional scrutiny and certain other legal challenges, [thereby] implicating central First Amendment concerns.” The funding restrictions were therefore subject to the traditional First Amendment prohibition of viewpoint discrimination and found unconstitutional.

Pleasant Grove City v. Summum involved a public park containing fifteen permanent displays, of which at least eleven were donated to the park by private persons or groups. The monuments included historical items, such as an historic granary, the city’s first fire station, and a September 11th monument, as well as a Ten Commandments monument that the Fraternal Order of Eagles donated in 1971. Summum, a religious organization, wished to donate a monument containing its “Seven Aphorisms,” which were religious tenets. The proposed monument was to be “similar in size and nature” to the existing Ten Commandments monument. The city refused Summum’s donation, citing its policy that monuments in the park were limited to those relating to the city’s history or that were donated by groups with “longstanding ties” to the community.

Summum sued, alleging that the city violated the Free Speech Clause by distinguishing between the religious monuments that it would accept—the Ten Commandments—and those that it would reject—the Seven Aphorisms—based on content and/or the speaker’s identity. The Court rejected this claim, holding that the display of permanent monuments in a public park on city-owned property fell within the government speech doctrine. The Court stated that a government entity “has the right to speak for itself [and] is entitled to say what it wishes, and to select the views that it wants to express. Indeed, it is not easy to imagine how government could function if it lacked this freedom.”

Although the Summum Court did not embrace a single bright-line rule, it unanimously held that the monument display had the attributes of government speech. While admitting “there may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf,” the Court found that it was clear that the placement of monuments in the park amounted to government speech. The Court held that visitors to the park would likely perceive the monuments as expressing a government message and that the government in fact established and fully controlled that message. Accordingly, the Court found the government speech exception to be satisfied.

135 S. Ct. 2239.

Supreme Court of the United States.

John WALKER, III, Chairman, Texas Department of Motor Vehicles Board, et al., Petitioners

v.

TEXAS DIVISION, SONS OF CONFEDERATE VETERANS, INC., et al.

No. 14–144.

Argued March 23, 2015.

Decided June 18, 2015.

Justice BREYER delivered the opinion of the Court.

Texas offers automobile owners a choice between ordinary and specialty license plates. Those who want the State to issue a particular specialty plate may propose a plate design, comprising a slogan, a graphic, or (most commonly) both. If the Texas Department of Motor Vehicles Board approves the design, the State will make it available for display on vehicles registered in Texas.

In this case, the Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a Confederate battle flag. The Board rejected the proposal. We must decide whether that rejection violated the Constitution’s free speech guarantees. We conclude that it did not.

I

A

Texas law requires all motor vehicles operating on the State’s roads to display valid license plates, and Texas makes available several kinds of plates. Drivers may choose to display the State’s general-issue license plates. Each of these plates contains the word “Texas,” a license plate number, a silhouette of the State, a graphic of the Lone Star, and the slogan “The Lone Star State.” In the alternative, drivers may choose from an assortment of specialty license plates. Each of these plates contains the word “Texas,” a license plate number, and one of a selection of designs prepared by the State. Finally, Texas law provides for personalized plates (also known as vanity plates). Pursuant to the personalization program, a vehicle owner may request a particular alphanumeric pattern for use as a plate number, such as “BOB” or “TEXPL8.”

Here we are concerned only with the second category of plates, namely specialty license plates, not with the personalization program. Texas offers vehicle owners a variety of specialty plates, generally for an annual fee. Texas selects the designs for specialty plates through three distinct processes.

First, the state legislature may specifically call for the development of a specialty license plate. The legislature has enacted statutes authorizing, for example, plates that say “Keep Texas Beautiful” and “Mothers Against Drunk Driving,” plates that “honor” the Texas citrus industry, and plates that feature an image of the World Trade Center towers and the words “Fight Terrorism.”

Second, the Board may approve a specialty plate design proposal that a state-designated private vendor has created at the request of an individual or organization. Among the plates created through the private-vendor process are plates promoting the “Keller Indians” and plates with the slogan “Get it Sold with RE/MAX.”

Third, the Board “may create new specialty license plates on its own initiative or on receipt of an application from a” nonprofit entity seeking to sponsor a specialty plate. A nonprofit must include in its application “a draft design of the specialty license plate.” And Texas law vests in the Board authority to approve or to disapprove an application. The relevant statute says that the Board “may refuse to create a new specialty license plate” for a number of reasons, for example “if the design might be offensive to any member of the public . . . or for any other reason established by rule.” Specialty plates that the Board has sanctioned through this process include plates featuring the words “The Gator Nation,” together with the Florida Gators logo, and plates featuring the logo of Rotary International and the words “SERVICE ABOVE SELF.”

B

In 2009, the Sons of Confederate Veterans, Texas Division (a nonprofit entity), applied to sponsor a specialty license plate through this last-mentioned process. SCV’s application included a draft plate design. At the bottom of the proposed plate were the words “SONS OF CONFEDERATE VETERANS.” At the side was the organization’s logo, a square Confederate battle flag framed by the words “Sons of Confederate Veterans 1896.” A faint Confederate battle flag appeared in the background on the lower portion of the plate. Additionally, in the middle of the plate was the license plate number, and at the top was the State’s name and silhouette. The Board’s predecessor denied this application.

In 2010, SCV renewed its application before the Board. The Board invited public comment on its website and at an open meeting. After considering the responses, including a number of letters sent by elected officials who opposed the proposal, the Board voted unanimously against issuing the plate. The Board explained that it had found “it necessary to deny th[e] plate design application, specifically the confederate flag portion of the design, because public comments ha[d] shown that many members of the general public find the design offensive, and because such comments are reasonable.” The Board added “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, SCV brought this lawsuit against the Board. SCV argued that the Board’s decision violated the Free Speech Clause of the First Amendment, and it sought an injunction requiring the Board to approve the proposed plate design. The District Court entered judgment for the Board. A divided panel of the Court of Appeals for the Fifth Circuit reversed. It held that Texas’s specialty license plate designs are private speech and that the Board, in refusing to approve SCV’s design, engaged in constitutionally forbidden viewpoint discrimination. The dissenting judge argued that Texas’s specialty license plate designs are government speech, the content of which the State is free to control.

We granted the Board’s petition for certiorari, and we now reverse.

II

When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Pleasant Grove City v. Summum. That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. Instead, the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect its electoral mandate.

Were the Free Speech Clause interpreted otherwise, government would not work. How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization? “[I]t is not easy to imagine how government could function if it lacked th[e] freedom” to select the messages it wishes to convey. Summum, supra.

We have therefore refused “[t]o hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals.” Rust v. Sullivan. We have pointed out that a contrary holding would render numerous Government programs constitutionally suspect. Cf. Keller v. State Bar of Cal., 496 U.S. 1 (1990) (“If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed”). And we have made clear that “the government can speak for itself.” Southworth, supra.

That is not to say that a government’s ability to express itself is without restriction. Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech. And the Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech. But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.

III

In our view, specialty license plates issued pursuant to Texas’s statutory scheme convey government speech. Our reasoning rests primarily on our analysis in Summum, a recent case that presented a similar problem. We conclude here, as we did there, that our precedents regarding government speech (and not our precedents regarding forums for private speech) provide the appropriate framework through which to approach the case.

A

In Summum, we considered a religious organization’s request to erect in a 2.5-acre city park a monument setting forth the organization’s religious tenets. In the park were 15 other permanent displays. At least 11 of these—including a wishing well, a September 11 monument, a historic granary, the city’s first fire station, and a Ten Commandments monument—had been donated to the city by private entities. The religious organization argued that the Free Speech Clause required the city to display the organization’s proposed monument because, by accepting a broad range of permanent exhibitions at the park, the city had created a forum for private speech in the form of monuments.

This Court rejected the organization’s argument. We held that the city had not “provid[ed] a forum for private speech” with respect to monuments. Rather, the city, even when “accepting a privately donated monument and placing it on city property,” had “engage[d] in expressive conduct.” The speech at issue, this Court decided, was “best viewed as a form of government speech” and “therefore [was] not subject to scrutiny under the Free Speech Clause.”

We based our conclusion on several factors. First, history shows that “[g]overnments have long used monuments to speak to the public.” Thus, we observed that “[w]hen a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.”

Second, we noted that it “is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated.” As a result, “persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner’s behalf.” And “observers” of such monuments, as a consequence, ordinarily “appreciate the identity of the speaker.”

Third, we found relevant the fact that the city maintained control over the selection of monuments. We thought it “fair to say that throughout our Nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity.” And we observed that the city government in Summum “effectively controlled the messages sent by the monuments in the [p]ark by exercising final approval authority over their selection.”

In light of these and a few other relevant considerations, the Court concluded that the expression at issue was government speech. And, in reaching that conclusion, the Court rejected the premise that the involvement of private parties in designing the monuments was sufficient to prevent the government from controlling which monuments it placed in its own public park.

B

Our analysis in Summum leads us to the conclusion that here, too, government speech is at issue. First, the history of license plates shows that, insofar as license plates have conveyed more than state names and vehicle identification numbers, they long have communicated messages from the States [including] slogans to urge action, to promote tourism, and to tout local industries.

Texas, too, has selected various messages to communicate through its license plate designs. By 1919, Texas had begun to display the Lone Star emblem on its plates. In 1936, the State’s general-issue plates featured the first slogan on Texas license plates: the word “Centennial.” In 1968, Texas plates promoted a San Antonio event by including the phrase “Hemisfair 68.” In 1977, Texas replaced the Lone Star with a small silhouette of the State. And in 1995, Texas plates celebrated “150 Years of Statehood.” Additionally, the Texas Legislature has specifically authorized specialty plate designs stating, among other things, “Read to Succeed,” “Houston Livestock Show and Rodeo,” “Texans Conquer Cancer,” and “Girl Scouts.” This kind of state speech has appeared on Texas plates for decades.

Second, Texas license plate designs “are often closely identified in the public mind with the [State].” Summum, supra. Each Texas license plate is a government article serving the governmental purposes of vehicle registration and identification. The governmental nature of the plates is clear from their faces: The State places the name “TEXAS” in large letters at the top of every plate. Moreover, the State requires Texas vehicle owners to display license plates, and every Texas license plate is issued by the State. Texas also owns the designs on its license plates, including the designs that Texas adopts on the basis of proposals made by private individuals and organizations. And Texas dictates the manner in which drivers may dispose of unused plates.

Texas license plates are, essentially, government IDs. And issuers of ID “typically do not permit” the placement on their IDs of messages with which they do not wish to be associated. Summum, 555 U.S. at 471. Consequently, “persons who observe” designs on IDs “routinely—and reasonably—interpret them as conveying some message on the [issuer’s] behalf.” Id.

Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate. But the individual prefers a license plate design to the purely private speech expressed through bumper stickers. That may well be because Texas’s license plate designs convey government agreement with the message displayed.

Third, Texas maintains direct control over the messages conveyed on its specialty plates. Texas law provides that the State “has sole control over the design, typeface, color, and alphanumeric pattern for all license plates.” The Board must approve every specialty plate design proposal before the design can appear on a Texas plate. And the Board and its predecessor have actively exercised this authority. Texas asserts, and SCV concedes, that the State has rejected at least a dozen proposed designs. Accordingly, like the city government in Summum, Texas “has ‘effectively controlled’ the messages [conveyed] by exercising ‘final approval authority’ over their selection.”

This final approval authority allows Texas to choose how to present itself and its constituency. Thus, Texas offers plates celebrating the many educational institutions attended by its citizens. But it need not issue plates deriding schooling. Texas offers plates that pay tribute to the Texas citrus industry. But it need not issue plates praising Florida’s oranges as far better. And Texas offers plates that say “Fight Terrorism.” But it need not issue plates promoting al Qaeda.

These considerations, taken together, convince us that the specialty plates here in question are similar enough to the monuments in Summum to call for the same result. That is not to say that every element of our discussion in Summum is relevant here. For instance, in Summum we emphasized that monuments were “permanent” and we observed that “public parks can accommodate only a limited number of permanent monuments.” We believed that the speech at issue was government speech rather than private speech in part because we found it “hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression.” Here, a State could theoretically offer a much larger number of license plate designs, and those designs need not be available for time immemorial.

But those characteristics of the speech at issue in Summum were particularly important because the government speech at issue occurred in public parks, which are traditional public forums for “the delivery of speeches and the holding of marches and demonstrations” by private citizens. By contrast, license plates are not traditional public forums for private speech.

And other features of the designs on Texas’s specialty license plates indicate that the message conveyed by those designs is conveyed on behalf of the government. Texas, through its Board, selects each design featured on the State’s specialty license plates. Texas presents these designs on government-mandated, government-controlled, and government-issued IDs that have traditionally been used as a medium for government speech. And it places the designs directly below the large letters identifying “TEXAS” as the issuer of the IDs. The designs that are accepted, therefore, are meant to convey and have the effect of conveying a government message, and they thus constitute government speech.

C

SCV believes that Texas’s specialty license plate designs are not government speech, at least with respect to the designs (comprising slogans and graphics) that were initially proposed by private parties. According to SCV, the State does not engage in expressive activity through such slogans and graphics, but rather provides a forum for private speech by making license plates available to display the private parties’ designs. We cannot agree.

We have previously used what we have called “forum analysis” to evaluate government restrictions on purely private speech that occurs on government property. But forum analysis is misplaced here. Because the State is speaking on its own behalf, the First Amendment strictures that attend the various types of government-established forums do not apply.

The parties agree that Texas’s specialty license plates are not a “traditional public forum,” such as a street or a park, “which ha[s] immemorially been held in trust for the use of the public and, time out of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” The Court has rejected the view that traditional public forum status extends beyond its historic confines. And state-issued specialty license plates lie far beyond those confines.

It is equally clear that Texas’s specialty plates are neither a “designated public forum,” which exists where “government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose,” nor a “limited public forum,” which exists where a government has reserved a forum for certain groups or for the discussion of certain topics. A government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse. And in order to ascertain whether a government intended to designate a place not traditionally open to assembly and debate as a public forum, this Court has looked to the policy and practice of the government and to the nature of the property and its compatibility with expressive activity.

Texas’s policies and the nature of its license plates indicate that the State did not intend its specialty license plates to serve as either a designated public forum or a limited public forum. First, the State exercises final authority over each specialty license plate design. This authority militates against a determination that Texas has created a public forum. Second, Texas takes ownership of each specialty plate design, making it particularly untenable that the State intended specialty plates to serve as a forum for public discourse. Finally, Texas license plates have traditionally been used for government speech, are primarily used as a form of government ID, and bear the State’s name. These features of Texas license plates indicate that Texas explicitly associates itself with the speech on its plates.

For similar reasons, we conclude that Texas’s specialty license plates are not a “nonpublic for[um],” which exists “[w]here the government is acting as a proprietor, managing its internal operations.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). With respect to specialty license plate designs, Texas is not simply managing government property, but instead is engaging in expressive conduct. As we have described, we reach this conclusion based on the historical context, observers’ reasonable interpretation of the messages conveyed by Texas specialty plates, and the effective control that the State exerts over the design selection process. Texas’s specialty license plate designs “are meant to convey and have the effect of conveying a government message.” Summum, 555 U.S. at 472. They therefore constitute government speech.

The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider. In Summum, private entities “financed and donated monuments that the government accept[ed] and display[ed] to the public.” Here, similarly, private parties propose designs that Texas may accept and display on its license plates. In this case, as in Summum, the “government entity may exercise [its] freedom to express its views” even “when it receives assistance from private sources for the purpose of delivering a government-controlled message.” And in this case, as in Summum, forum analysis is inapposite.

Of course, Texas allows many more license plate designs than the city in Summum allowed monuments. But our holding in Summum was not dependent on the precise number of monuments found within the park. Indeed, we indicated that the permanent displays in New York City’s Central Park also constitute government speech. And an amicus brief had informed us that there were, at the time, 52 such displays. Further, there may well be many more messages that Texas wishes to convey through its license plates than there were messages that the city in Summum wished to convey through its monuments. Texas’s desire to communicate numerous messages does not mean that the messages conveyed are not Texas’s own.

Additionally, the fact that Texas vehicle owners pay annual fees in order to display specialty license plates does not imply that the plate designs are merely a forum for private speech. While some nonpublic forums provide governments the opportunity to profit from speech, see, e.g., Lehman v. Shaker Heights (plurality opinion), the existence of government profit alone is insufficient to trigger forum analysis. Thus, if the city in Summum had established a rule that organizations wishing to donate monuments must also pay fees to assist in park maintenance, we do not believe that the result in that case would have been any different. Here, too, we think it sufficiently clear that Texas is speaking through its specialty license plate designs, such that the existence of annual fees does not convince us that the specialty plates are a nonpublic forum.

Nor is this case like Cornelius, where we determined that a charitable fundraising program directed at federal employees constituted a nonpublic forum. That forum lacked the kind of history present here. The fundraising drive had never been a medium for government speech. Instead, it was established “to bring order to [a] solicitation process” which had previously consisted of ad hoc solicitation by individual charitable organizations. The drive “was designed to minimize . . . disruption to the [federal] workplace,” not to communicate messages from the government. Further, the charitable solicitations did not appear on a government ID under the government’s name. In contrast to the instant case, there was no reason for employees to “interpret [the solicitation] as conveying some message on the [government’s] behalf.” Summum, 555 U.S. at 471.

IV

For the reasons stated, we hold that Texas’s specialty license plate designs constitute government speech and that Texas was consequently entitled to refuse to issue plates featuring SCV’s proposed design. Accordingly, the judgment of the United States Court of Appeals for the Fifth Circuit is

Reversed.

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. By contrast, “[i]n the realm of private speech or expression, government regulation may not favor one speaker over another.” Rosenberger v. University of Virginia.

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 Oklahoma, 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? 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 Southern 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 private group wanted to post on some of these little billboards because 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 listserve? 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

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.”

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.” 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.”

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 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. The original Buffalo Soldiers fought with distinction in the Indian Wars, but the “Buffalo 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. “When we see the U.S. Cavalry uniform,” he explained, “we are forced to relive an American holocaust.”

II

A

Relying almost entirely on one precedent—Pleasant Grove City v. Summum—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. The 2.5-acre park contained 15 permanent displays, 11 of which had been donated by private parties. 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.” 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. 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.” Summum, at 471–72. 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. “[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.” 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.

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.” And most of the time, the Board “base[s] [its] decisions on rules that primarily deal with reflectivity and readability.” A Department brochure explains: “Q. Who provides the plate design? A. You do, though your design is subject to reflectivity, legibility, and design standards.”

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. 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.

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. 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.

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 none of 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 standard plate, must pay an increased annual registration fee. 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 specialty plate program, and it is apparent that the program brings in many millions of dollars every year. 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. Under the First Amendment, however, those rules cannot discriminate on the basis of viewpoint.. 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 reasonable.” 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. 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. 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.” 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 ire of those who loathe the ideas they express.

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.

Notes and Questions:

1. How, if at all, would the Court’s reasoning in Walker been different had it found that state-issued license plates should be analyzed under the designated or limited public forum doctrines? And would the Court have reached a different result under a forum analysis?

2. Keep Walker in mind when we discuss the “true threats” doctrine in Virginia v. Black. Could the proposed confederate battle flag license plate design be analyzed under as a true threats analysis rather than either a government speech analysis or a private speech/viewpoint discrimination analysis?