In a 5-4 decision authored by Justice Stephen Breyer the Court held that the license plates designs are government—not private speech– and that the government is allowed to discriminate based upon content when it speaks.
“When the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says” Breyer wrote.
Breyer’s opinion was joined by an unusual line up of Justice Clarence Thomas, Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor and Justice Elena Kagan.
At issue was a license plate design submitted by a group called the Sons of Confederate Veterans (SCV) and prominently featured the controversial Confederate battle flag.
The group sought to honor the reputation of soldiers who fought for the Confederacy during the Civil War. It argued that when the state rejected the design, it had violated the group’s free speech rights.
But Breyer said that because private speech was not at issue in the case , “just as Texas cannot require SCV to convey the State’s ideological message, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates.”
The decision is likely to affect specialty license plate programs in other states including a circuit split below concerning “Choose Life” plates concerning the issue of abortion.
“Many other states have similar specialty license plate programs, and today’s decision gives these states the power to control what messages it will permit on these plates,” says Mary Rose Papandrea of Boston College Law school.
In Texas, drivers can choose to have standard issue plates or plates with messages authorized by the Texas legislature. But there is a third alternative, and that was the question before the Court : individuals and businesses can pay and create a design for their license plates subject to the approval of the Texas Department of Motor Vehicles Board (DMVB). The plates are designed to raise revenue, and the DMV could reject the application if it was found to be “offensive to any member of the public.”
Texas argued that the speech is government speech, not private speech, and that the State is allowed to select the message that it is willing to support.
“Texas is not willing to propagate the Confederate battle flag by etching that image onto state-issued license plates that bear the State’s name,” Solicitor General Jonathan F. Mitchell argued in briefs. He said that drivers could decorate their cars with bumper stickers, “but they cannot commandeer the State into promoting the Confederate battle flag on a state-issued license plate.”
The Court took the unusual tack of including a picture of the proposed plate in its opinion.
Justice Samuel Alito dissented from the opinion finding that the messages on the plates are not government speech, but private speech subject to First Amendment protection.
He was joined by Chief Justice John Roberts, Justice Antonin Scalia and Justice Anthony Kennedy
“Unfortunately,” Alito wrote, “the Court’s decision categorizes private speech as government speech and thus strips it of all First Amendment protection.”
Alito said “this capacious understanding of government speech takes a large and painful bite out of the First Amendment” and “establishes a precedent that threatens private speech that the government finds displeasing.”
He pointed to other states that allow specialty license plates with the Confederate Battle Flag and said “Texas has not pointed to evidence that these plates have led to incidents of road rage or accidents.”