By Lisa Soronen
You know it is going to be a good day for state government when the U.S. Supreme Court begins the analysis portion of its opinion with this: “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”
In Walker v. Sons of Confederate Veterans, the Supreme Court held 5-4 that Texas may deny a proposed specialty license plate design featuring the Confederate flag because specialty license plate designs are government speech.
Walker is of particular significance to state and local government because the court did not narrow the 2009 landmark government speech case Pleasant Grove City, Utah v. Summum.
The Sons of Confederate Veterans (SCV) proposed a specialty license plate that featured a faint Confederate flag in the background and the organization’s logo, a square Confederate flag. After receiving public comment on the proposed plate, the Texas Department of Motor Vehicles Board unanimously voted against issuing it, noting that many members of the general public found the design offensive. SCV sued Texas claiming that specialty plates are private speech and that the board engaged in unconstitutional viewpoint discrimination by refusing to approve its design.
The court disagreed concluding that specialty license plates are government speech.
It relied heavily on Summum, where the court held that monuments in a public park are government speech and that a city may accept some privately donated monuments and reject others. First, just as governments have a long history of using monuments to speak to the public, states have a long history of using license plates to communicate messages. Second, just as observers of monuments associate the monument’s message with the land owner, observers identify license plate designs with the state because the name of the state appears on the plate, the state requires license plates, etc. Third, per state law, Texas maintains control over messages conveyed on specialty plates and has rejected at least a dozen designs, just as the city in Summum maintained control of monument selection.
The result in Walker wasn’t a foregone conclusion. In a vigorous dissent, Justice Samuel Alito questions much of the majority’s analysis. He points out that only within the last 20 years has Texas allowed private groups to put messages on license plates and argues that Texas allows messages on license plates to make money, not to convey messages it supports.
But Justice Stephen Breyer, ever the pragmatist, insists that “government would not work” unless the government may determine “the content of what is says.”
"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?"
According to The New York Times, nine states—Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee and Virginia—allow Confederate flag specialty plates. At a minimum, states may ban these plates and others as a result of this decision.
Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.