Saturday, June 20, 2015

Texas wins rebel flag license plate case

The Court held that the plates were government speech and not a public forum.  Much of First Amendment jurisprudence involves trying to place cases in categories.  Here there was a choice of two catregories, government or private/personal speech and whether or not the state had created a pulic forum.  It's a close case, but I agree with the 5-4 decision.  Interestingly, J. Thomas, the Court's most conservative Justice voted with the Court's 4 liberties.  The syllabus is below."

Texas offers automobile owners a choice between general-issue 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 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. Here, the Texas Division of the Sons of Confederate Veterans and its officers (collectively SCV) filed suit against the Chairman and members of the Board (collectively Board), arguing that the Board’s rejection of SCV’s proposal for a specialty plate design featuring a Confederate battle flag violated the Free Speech Clause. The District Court entered judgment for the Board, but the Fifth Circuit reversed, holding that Texas’s specialty license plate designs are private speech and that the Board engaged in constitutionally forbidden viewpoint discrimination when it refused to approve SCV’s design.
Held: Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring SCV’s proposed design. Pp. 5–18.
(a) 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, 555 U. S. 460, 467–468. A government is generally entitled to promote a program, espouse a policy, or take a position. Were the Free Speech Clause interpreted otherwise, "it is not easy to imagine how government would function." Id., at 468. That is not to 2 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC.


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. Pp. 5–6.

(b) This Court’s precedents regarding government speech provide the appropriate framework through which to approach the case. Pp. 6–17.
(1) The same analysis the Court used in Summum—to conclude that a city "accepting a privately donated monument and placing it on city property" was engaging in government speech, 555 U. S., at464—leads to the conclusion that government speech is at issue here. First, history shows that States, including Texas, have long used license plates to convey government speech, e.g., slogans urging action, promoting tourism, and touting local industries. Cf. id., at 470. Second, Texas license plate designs "are often closely identified in the public mind with the [State]." Id., at 472. Each 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 across the top of every plate. Texas also requires Texas vehicle owners to display license plates, issues every Texas plate, andowns all of the designs on its plates. The plates are, essentially, government IDs, and ID issuers "typically do not permit" their IDs to contain "message[s] with which they do not wish to be associated," id., at 471. Third, Texas maintains direct control over the messages conveyed on its specialty plates, by giving the Board final approval over each design. Like the city government in Summum, Texas "has effectively controlled the messages [conveyed] by exercising final approval authority over their selection." Id., at 473. These considerations, taken together, show that Texas’s specialty plates are similar enough to the monuments in Summum to call for the same result. Pp. 7–12.

(2) Forum analysis, which applies to government restrictions on purely private speech occurring on government property, Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 800, is not appropriate when the State is speaking on its own behalf. The parties agree that Texas’s specialty license plates are not a traditional public forum. Further, Texas’s policies and the nature of its license plates indicate that the State did not intend its specialty plates toserve as either a designated public forum—where "government property . . . not traditionally . . . a public forum is intentionally opened

3 Cite as: 576 U. S. ____ (2015)

up for that purpose," Summum, supra, at 469—or a limited public forum—where a government "reserv[es a forum] for certain groups orfor the discussion of certain topics," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829. The State exercises final authority o ver the messages that may be conveyed by its specialty plates, it takes ownership of each specialty plate design, and it has traditionally used its plates for government speech. These features of Texas specialty plates militate against a determination that Texas has created a public forum. Finally, the plates are not a nonpublic forum, where the "government is . . . a proprietor, managing its internal operations." International Soc. for Krishna Consciousness, Inc.
v. Lee, 505 U. S. 672, 678–679. 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. See Summum, supra, at 470–471. Nor does Texas’s requirement that vehicle owners pay annual fees for specialty plates mean that the plates are a forum for private speech. And this case does not resemble other nonpublic forum cases. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 48–49; Lehman v. Shaker Heights, 418 U. S. 298; and Cornelius, supra, at 804–806, distinguished. Pp. 13–17.
(c) The determination that Texas’s specialty license plate designsare government speech does not mean that the designs do not also implicate the free speech rights of private persons. The Court has acknowledged that drivers who display a State’s selected licenseplate designs convey the messages communicated through those designs. See Wooley v. Maynard, 430 U. S. 705, 717, n. 15. The Court has also recognized that the First Amendment stringently limits a State’s authority to compel a private party to express a view withwhich the private party disagrees. Just as Texas cannot require SCVto convey "the State’s ideological message," id., at 715, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates. Pp. 17–18.

759 F. 3d 388, reversed.
BREYER, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., joined. _________________ _________________ 1 Cite as: 576 U. S. ____ (2015)


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