The Supreme Court has agreed to hear a case out of Texas arising out of the state’s refusal to issue a specialty license plate bearing a representation of the Confederate Battle Flag and the argument that this refusal was the repression of speech based on content in violation of the First Amendment:
The case about license plates arose from Texas’s refusal to issue a specialty plate bearing a Confederate battle flag. The state allows many kinds of plates, including ones proposed by nonprofit groups. The state’s Motor Vehicles Board rejected this one, proposed by the Sons of Confederate Veterans.
The board said it had based its decision on public comments from people who “associate the Confederate flag with organizations advocating expressions of hate.”
The United States Court of Appeals for the Fifth Circuit, in New Orleans,ruled against the state, saying it had violated the First Amendment.
There are two basic issues in the case, Walker v. Sons of Confederate Veterans, No. 14-144. One is whether statements on specialty license plates are the government’s speech or that of the car’s owner. If they are the government’s speech, the First Amendment largely drops out of the analysis, as the government is free to say what it likes.
The Supreme Court made that clear in 2009 in Pleasant Grove City v. Summum, ruling that a Utah city did not have to allow a minor religion to erect a monument to its Seven Aphorisms near a Ten Commandments monument in a public park.
The court acknowledged that the government could not discriminate among speakers in the park and among people handing out leaflets there. But permanent monuments, whether donated by private groups or commissioned by the government, are government speech, the court said.
Most federal appeals courts, like the Fifth Circuit, have ruled that specialty license plates are different, conveying the positions of the drivers involved rather than that of the government. The appeals court in Chicago, the Seventh Circuit, for instance, ruled that specialty plates are “mobile billboards” for “organizations and like-minded vehicle owners.”
The second question was whether Texas had engaged in impermissible discrimination based on the speaker’s viewpoint. Texas argued that it should be allowed to reject particular license plate designs as long as it does not allow ones expressing any point of view, pro or con, on the topic at issue, here the confederacy. The Seventh Circuit allowed Illinois to turn down “Choose Life” plates on this ground, saying the state had declined to allow any abortion-related designs.
The Fifth Circuit noted that Texas had approved plates from several veterans’ groups but rejected this one based on “the view that the Confederate flag is an inflammatory symbol of hate and oppression.” The court said that amounted to viewpoint discrimination.
The last time the Supreme Court considered what the First Amendment has to say about license plates was in 1977 in Wooley v. Maynard, when it ruled that New Hampshire could not force George Maynard to drive around with plates bearing the state’s motto, “Live Free or Die.” Mr. Maynard, a Jehovah’s Witness, said he preferred life, “even if it meant living in bondage.”
Lyle Denniston has more details about the legal issues in the case:
The key issue in the license plate case (Walker v. Sons of Confederate Veterans) is whether the messages that are displayed on specialty tags are a form of government speech, so that officials can decide which to allow or to forbid. If, however, they represent the views of the car or truck owner, then the government’s power to veto a message is more tightly restricted.
In a 1977 ruling, in Wooley v. Maynard, the Court treated a license plate message as a form of private speech displayed on private property, but it did not rule explicitly whether this was government speech or private speech more generally. In the 2009 decision in Pleasant Grove City v. Summum, the Court decided that a government entity has a right to speak for itself, and thus has the authority to refuse to accept a symbolic monument for display in a public park.
The Court was asked in the Texas case, and in a separate North Carolina case that is now apparently being kept on hold, to clarify a split among federal appeals courts on whether vanity plate messages are to be treated as government or private expressions. In the Texas case, a group that seeks to preserve the memory and reputation of soldiers who fought for the Confederacy sought state approval for a plate design that included the Confederate battle flag.
Ultimately, after a series of conflicting votes, a state agency turned down that design, saying that many people regard the rebels’ flag as associated with hatred toward groups. The Texas Division of the Sons of Confederate Veterans sued, and ultimately won a decision by the U.S. Court of Appeals for the Fifth Circuit, declaring that specialty plate messages are a form of private speech, and that the state agency had engaged in forbidden viewpoint discrimination.
The Supreme Court will now review the Fifth Circuit’s decision.
On the surface, it might seem easy to dismiss the First Amendment arguments made in a case like this. After all, license plates are ultimately something created by the states as a means of identifying vehicles properly once they are registered for use on state-administered highways. For many years, the content of those plates, or the message conveyed by them, which usually consisted of the state’s motto, or nickname, or the some tourism-related slogan was largely beyond the control of the driver. To the extent that the Supreme Court has ever ruled that there was a First Amendment issue involved with respect to a license plate, that ruling came in 1977 in the case Wooley v. Maynard. As noted above, in that case, the Court held in a 6-3 ruling that Maynard, a Jehovah’s Witness, could not Constitutionally require anyone to display a message on their license plate if they had a religious objection to the message. That seems like a pretty straight-forward result; as a general rule, the state cannot force anyone to advocate a point of view that they object to and if someone has a religious objection to the message on a license plate they are forced to use then some accommodation has to be made for that objection. That’s different, though, from the question of whether or not the state has any authority to regulate the message that might be conveyed on a vanity or specialty licence plate.
When the Supreme Court last ruled on anything dealing with license plates, of course, these issues did not really exist. It’s only been in the past twenty years or so, in no small part to help raise additional sources of revenue, that states have allowed both vanity plates with special messages instead of the standard numbers and letters or specialty plates devoted to colleges and universities, various causes, veterans groups, and the like. Ever since that phenomenon began, there have often been conflicts between what people wanted on their license plates and what motor vehicle authorities have been willing to permit — messages deemed racist or obscene have often been denied on vanity plates, for example — and various political groups have often lobbied hard to be included in the specialty license plate program, sometimes because the charitable organization tied to a particular cause has received some portion of the proceeds from the sale of the plates. The rules about how a specialty plate is approved vary from state to state, though. In some states they must be approved by the state legislature. In others the relevant motor vehicle authority can authorize them, either on its own by following certain procedures, or after application by private organizations provided that the people who want such a support have demonstrated a sufficient level of demand for the requested plate. This is apparently the procedure in Texas and, although the Texas branch of the Sons of Confederate Veterans submitted an application to the proper agency, the agency ultimately denied the request in large part due to the fact that it had received a large number of complaints about the proposed plate from members of the public who said that they considered the idea of such a plate offensive.
There are essentially two issues involved in this case. The first is whether a specialty license plate is “government speech,” in which case the state would largely be free to do whatever it wanted, or whether it should be considered private speech, in which case a court would be required to rule on whether or not the denial of a specific plate based on its content is a violation of the First Amendment. In its ruling on the first issue, the Fifth Circuit Court of Appeals found that the specialty plate is a matter of private speech:
Considering the emphasis on context and the public’s perception of the speaker’s identity in Summum, we think the proper inquiry here is “whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige.” Id. at 487 (Souter, J., concurring); see also Roach v. Stouffer, 560 F.3d 860, 867 (8th Cir. 2009) (“Our analysis boils down to one key question: whether, under all the circumstances, a reasonable and fully informed observer would consider the speaker to be the government or a private party.”); Choose Life Ill., Inc. v. White, 547 F.3d 853, 863 (7th Cir. 2008) (identifying government speech by asking “[u]nder all the circumstances, would a reasonable person consider the speaker to be the government or a private party”).
Here, the differences between permanent monuments in public parks and specialty license plates on the back of personal vehicles convince us that a reasonable observer would understand that the specialty license plates are private speech. Unlike their treatment of permanent monuments, states have not traditionally used license plates to convey a particular message to the public. Rather, license plates have primarily been a means of identifying vehicles. See Wooley v. Maynard, 430 U.S. 705, 716 (1977) (explaining that one of the reasons the state had asserted an interest in including its motto on state license plates was to “facilitate[] the identification of passenger vehicles”); Tex. Transp. Code Ann. §§ 504.001-504.948 (effecting a vehicle registration scheme); see also id. § 504.005 (mandating that each license plate have a ”unique identifier”). License plates also do not have the permanent character of monuments in public parks. See Summum, 555 U.S. at 464, 480 (contrasting permanent monuments with “temporary displays” and “transitory expressive acts”). An individual may choose a new specialty license plate every year simply by paying a fee, see Tex. Transp. Code Ann. § 504.008, and an individual registers for a new license plate any time he or she moves to a new state.
Further, while public parks have traditionally been “closely identified in the public mind with the government” and have “play[ed] an important role in defining the identity [of] a city,” the same cannot be said for license plates and the backs of cars. See Summum, 555 U.S. at 472. In Wooley, the Supreme Court held that New Hampshire could not force its citizens (the plaintiffs were Jehovah’s Witnesses) to bear the “Live Free or Die” motto on standard issue license plates because it would be a violation of their First Amendment rights. 430 U.S. at 717. The Court never discussed whether the plates were government or private speech. Instead, it presumed that the license plates were private speech, engaged in a First Amendment analysis, and explicitly stated that because a car was “private property,” the government could not force individuals to bear a license plate with New Hampshire’s motto. Id. at 713. Thus, the “Supreme Court has indicated that license plates, even when owned by the government, implicate private speech interests because of the connection of any message on the plate to the driver or owner of the vehicle.” Sons of Confederate Veterans, Inc. ex rel. Griffin v. Comm’r of Va. Dep’t of Motor Vehicles, 288 F.3d 610, 621 (4th Cir. 2002) (citing Wooley, 430 U.S. at 717).
Having determined that specialty plates are private speech, the next question is whether the denial of the SCV’s application was permissible, or whether it was a form of viewpoint discrimination and therefore unconstitutional. To a large degree, though, that question was answered the minute the Court made the government v. private speech determination:
We agree with Texas SCV and hold that the Board engaged in impermissible viewpoint discrimination and violated Texas SCV’s rights under the First Amendment. In explaining its denial of Texas SCV’s application, the Board stated it denied the plate, “specifically the confederate flag portion of the design, because public comments have shown that many members of the general public find the design offensive.” By rejecting the plate because it was offensive, the Board discriminated against Texas SCV’s view that the Confederate flag is a symbol of sacrifice, independence, and Southern heritage. The Board’s decision implicitly dismissed that perspective and instead credited the view that the Confederate flag is an inflammatory symbol of hate and oppression. Texas’s specialty license plate program features a number of plates that honor veterans, including Korea Veterans, Vietnam Veterans, Woman Veterans, Buffalo Soldiers, Operation Iraqi Freedom, and World War II Veterans. Given Texas’s history of approving veterans plates and the reasons the Board offered for rejecting Texas SCV’s plate, it appears that the only reason the Board rejected the plate is the viewpoint it represents. We understand that some members of the public find the Confederate flag offensive. But that fact does not justify the Board’s decision; this is exactly what the First Amendment was designed to protect against. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 641 (1994) (“Government action that stifles speech on account of its message . . . pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.”). As the Supreme Court has already recognized, “any suggestion that the Government’s interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment.” See United States v. Eichman, 496 U.S. 310, 318 (1990). “[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.” Simon & Schuster Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 108 (1991) (citations and internal quotation marks omitted).
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Further, the Board’s “might be offensive to any member of the public” standard lacks specific limiting standards, which gives the state “unbridled discretion” that permits viewpoint discrimination. Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 351 (6th Cir. 2007). Indeed, the most recent license plate case to be decided by a federal court, Matwyuk v. Johnson, held just this. Matwyuk involved Michigan’s vanity plate program, which did not allow any license plate configurations “that might carry a connotation offensive to good taste and decency.” Matwyuk, 2014 WL 2160448, at *1. The Matwyuk court held that this “offensive” standard “impermissibly permits the . . . State to deny a license plate application based on viewpoint because the statute lacks objective criteria, and thus confers unbounded discretion on the-decisionmaker.” Id. at *10 (citing Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969) (noting “the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional”)).
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The government may not “selectively . . . shield the public from some kinds of speech on the ground that they are more offensive than others.” See Erzonznik v. City of Jacksonville, 422 U.S. 209, 209 (1975). That is precisely what the Board did, however, when it rejected Texas SCV’s plate. Accordingly, we hold that the Board impermissibly discriminated against Texas SCV’s viewpoint when it denied the specialty license plate.
As much as I dislike the Confederate flag and detest what the present day fetish for Confederate revanchism stands for, I think the Fifth Circuit got it right. First of all, the Court was correct to find that, per Wooley, a license plate is in an important sense a form of private speech due to the manner in which it is something that an automobile owner is required to have on their car and, to the extent that it carries a message, endorse at least implicitly. That is why the Supreme Court was correct to rule that Wooley cannot be compelled to display a message that he religiously objects to on his motor vehicle notwithstanding the fact that it is part of a state motto included on every other plate issued by the state. Second, if the state has established a process that allows groups such as the Sons of Confederate Veterans to apply for a specialty plate, and if the group in question can meet all of the criteria that have been set in order to establish that there would be a sufficient market for the plate they request to justify the expense of creating it in the first place, then it cannot deny that application solely based on the content of the speech contained on the plate, which is exactly what a denied based on “offensiveness” constitutes. This seems like a fairly straight forward First Amendment issue requiring little further analysis
The SCOTUSBlog information page for the case, which will likely be argued at some point in the spring, can be found here. Additionally, I’ve embedded the Fifth Circuit’s opinion below for those interested:
Texas Division Sons of Confederate Veterans Et Al v. Vandergriff Et Al by Doug Mataconis
