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United States Supreme Court Allows States to Control Speech in Use of State Specialty License Plates

iStock_000008821292_LargeWalker, Chairman, Texas Department of Motor Vehicles Board v. Texas Division, Sons of Confederate Veterans, United States Supreme Court Case No. 14-144 (June 18, 2015), was a First Amendment case involving the use of "specialty license plates" in Texas. Under a statutory scheme administered by Defendant Texas Department of Motor Vehicles Board, (“TDMV”) the State may approve or deny specialty license plate designs proposed by nonprofit organizations. The design may include a logo, a graphic, or both. TDMV may deny a design if it is "offensive to any member of the public" or by rule. Plaintiff Sons of Confederate Veterans (“SCV”), a nonprofit organization, sought approval of a design that included its name and a Confederate battle flag.

TDMV asked for public comment on the design, and following a hearing, denied the same, finding the design offensive to some who commented and finding those comments reasonable, adding that the SCV logo was associated with organizations that advocate hate towards other groups and that the logo was demeaning. SCV filed suit in federal court on First Amendment grounds and appealed dismissal of that suit to the Fifth Circuit, which reversed in a divided decision, holding that the speech was private, and thus restriction of the same was subject to strict scrutiny, as it involved viewpoint discrimination. The United States Supreme Court granted certiorari.

Justice Breyer, writing for the majority, said that when the government speaks, the First Amendment does not limit the content of that speech, citing Pleasant Grove City v. Summum, 555 U.S. 217, 235 (2000). The government is politically responsible for the speech it produces; otherwise, all such speech would be open to inclusion of dissenting views. If a city wishes to undertake a vaccination or anti-smoking program, it is not required to include other views when it speaks directly and need not be silent. The majority saw specialty license plates as government speech that did not involve a forum analysis, as would be applicable to private speech regulation in a public place or proceeding. Summum was the appropriate precedent, as that case dealt with a local government denial of a proposed privately financed monument on public property, even though that government had approved other privately financed monuments on the same land. The majority specifically rejected a public forum analysis in this context, which would use a strict scrutiny test, in favor of its government speech analysis. The Summum court used three factors, which the majority in this case found helpful:

  1. Governments have traditionally used monuments to speak to the public;
  2. It is not common for property owners to allow monuments for causes of which they   disapprove on their property; and
  3. The public retains control over monuments on public property.

The majority noted that states have often used license plates for more than identity of the state and the vehicle owner, though all states require display of such a license plate and own the plate designs. Texas has a system for approval or denial of license plate designs, including grounds for actions, in which TDMV is the final administrative authority as to how the state presents itself to others. As such, Texas may choose to approve a message to foster education and deny a message deriding that goal; to praise that state's fruits, but deny a message praising fruits from Florida; or to foster vigilance, but deny al Qaeda a message.

A forum analysis is appropriate to address regulation of private speech in a public setting, but not when the government is speaking on its own behalf. License plate design approval is not a public forum where the government may not ordinarily involve itself with regulation of expression, nor a non-public forum where it acts as manager of its internal operations. Texas does much more, managing its own manifestation of expressive conduct and communication; the fact that other parties may participate in the design process does not change that result. In the same way, the privately funded monument proposed in Summum was not entitled to First Amendment free expression analysis under the various forum doctrines. If the government does not wish to be associated with a certain design, it is free to decline. The majority also distinguished cases involving categories of proposed advertisements rented on public transportation, or cases involving compelled speech where one may disagree with the content of that speech. The denial of the proposed design was thus affirmed.

Justice Alito, joined by the Chief Justice and Justices Scalia and Kennedy, dissented, contending that the government may not favor one speaker or viewpoint over another and decrying the use of the "government speech" analysis, stating that in Texas, a motorist may choose from over 350 license plate designs and is the actor that undertakes expression. Texas has opened up license plate design to all comers and these plates act as "little mobile billboards," thus, rejecting designs because they may offend a member of the public amounted to "blatant viewpoint discrimination," suggesting an analogy to prohibited regulation of billboard content was more appropriate. Justice Alito also suggested the majority misunderstood Summum, limiting that case to deal with monuments in limited public space. License plate design approval is more analogous, according to the dissent, to a limited public forum so that private speech may be limited if it is inconsistent with the purpose of the forum. In this case, the state opened itself to multiple license plate designs except those that would offend some viewers, the viewpoint discrimination practice that must survive strict scrutiny.

The court may be working out the implications of its infrequent and sometimes inconsistent forays into the regulation of speech. For public agencies, the government speech approach is preferable to a forum analysis to deal with its own expression. The pragmatic approach of the majority appears better than the doctrinaire and confusing approach of the dissent, an approach that is magnified by the other speech regulation case involving sign regulations in the Gilbert case decided by the Court in the same month. Much more must be thought through before there is a coherent and consistent approach to Free Expression in the public sphere.

Walker, Chairman, Texas Department of Motor Vehicles Board v. Texas Division, sons of Confederate Veterans, United States Supreme Court Case No. 14-144 (June 18, 2015).


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