High Court Rules Specialty License Plates Constitute 'Government Speech'

By Scott Neuman

Published June 18, 2015 at 10:27 AM CDT

In a 5-4 decision, the U.S. Supreme Court has ruled that the state of Texas was legally justified in refusing to issue a proposed specialty license plate for members of the Sons of Confederate Veterans.

The court ruled in Walker v. Texas Division, Sons of Confederate Veterans, Inc. that the license plate design constitutes government speech and therefore Texas is entitled to choose which messages it approves. Texas had rejected the proposed plate, which includes a Confederate battle flag, arguing that it was offensive to a "significant portion" of the public.

The opinion of the court cited a precedent in the Supreme Court's 2009 decision in Pleasant Grove City v. Summum,which held that a privately funded monument on public property constitutes government speech and therefore a municipality could refuse to erect it without violating the First Amendment's free-speech guarantee.

The decision reverses a ruling last year in favor of the Sons of Confederate Veterans in the 5th U.S. Circuit Court of Appeals.

Justice Stephen Breyer, delivering the majority opinion, wrote that "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."

In a dissent authored by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy, the four countered: "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 biggest surprise in the alignment of the bench is that Justice Clarence Thomas went with the majority, while Scalia dissented. The two court conservatives rarely end up on opposite sides of a decision.

NPR's Nina Totenberg reported on oral arguments in March, quoting Texas Solicitor General Scott Keller as telling the justices "that while people are free to festoon their cars with bumper stickers saying whatever they want, they cannot force the government to give its stamp of approval to those messages."

There are two major rulings outstanding this session. In King v. Burwell, the court is expected to issue its decision on whether the Obamacare law requires states to set up their own health care exchanges before they can distribute subsidies to low-income people. And Obergefell v. Hodges is expected to decide whether bans on same-sex marriage are constitutional and, if they are, whether those states with bans may refuse to recognize same-sex marriages that were performed in states where they are legal.