Government free to pick and choose which proposed license plate designs to allow, notwithstanding the First Amendment

The design of a proposed "Sons of the Confederacy" Texas state license plate is shown in this handout illustration provided by the Texas Department of Motor Vehicles March 20, 2015. (Texas Department of Motor Vehicles/Handout via Reuters)

So holds the Court in Thursday's Walker v. Sons of Confederate Veterans, in an opinion by Justice Stephen Breyer (joined by the other relatively liberal Justices plus Justice Clarence Thomas). It's an interesting opinion, with a sharp dissent by Justice Samuel Alito, joined by the other conservatives, though it's not clear how broad its impact will be.

1. Texas, like many other states, raises money by letting groups design specialty license plates, which drivers can then buy for their cars. Some such plates promote universities (both in Texas and Texas's rivals, such as Louisiana State), products (such as Mighty Fine Burgers and Dr. Pepper), uncontroversial hobbies (Rather Be Golfing), more controversial hobbies (Texas Trophy Hunters Association), and some ideological messages (Choose Life). Indeed, almost all plate designs that were submitted were accepted. But when the Sons of Confederate Veterans asked for a license plate, which included the Confederate battle flag, the state refused.

Now whether this refusal is constitutional turns largely on how this program is characterized. If it is seen as a program that allows private speech, albeit on government property or with government support, then the program has to be administered in a viewpoint-neutral way, so the state couldn't exclude the Confederate battle flag on the grounds that it expressed a view that many found offensive. The same, of course, would be true of attempts to exclude other viewpoints.

But if the program is seen as involving "government speech," then the government could select what to include on the program. The government can select what monuments are displayed in government-owned parks, whether to fund the National Endowment for Democracy but not the National Endowments for Communism or Fascism, and whether to fund advocacy of prenatal care but not abortion. If the government itself dictated the contents of all license plates, rather than letting specialty groups create them, it could choose to provide only a "Live Free or Die" license plate but not a "Better Red Than Dead" license plate. Likewise, if the specialty plate program was treated as government speech, the government would be able to select which viewpoints to allow.

To be sure, in this case the speech isn't entirely government speech, the way the government's decision to design only one kind of license plate would be. It surely involves private organizations' speaking within the government program. Nonetheless, the question is whether the program is still labeled as a form of government speech, on the theory that the government may speak by selecting which private messages it would favor (just as, in Pleasant Grove City v. Summum (2009), the government may speak by selecting which privately donated monuments to accept).

2. Now at one level, very little turns on the result in this case, because even if Texas's drivers aren't allowed to display the Confederate battle flag - or any other message that the state might wish to reject - on their license plates, they can display it right next to the license plates on bumper stickers. Indeed, such stickers could be cheaper, larger, and more flexible in their designs than the license plates.

But the general principle at issue here is potentially very significant, because there are many much more significant programs in which the government supports the distribution of private organizations' messages. The income tax deductibility of charitable contributions, the Court has repeatedly ruled, is a form of government subsidy for private speech. So are federal student loan funds that go to universities. So are various benefits provided to university student groups; and the list could go on. If the government could characterize all these programs as essentially involving "government speech," and thus as allowing viewpoint discrimination by the government, then the government would have very broad authority to influence public debate through such programs. (Imagine a policy under which the IRS is legally allowed to deny tax-exempt status to various groups because the government disapproves of their messages.)

3. The majority's opinion in favor of treating this program as government speech proves to be quite fact-specific. The majority points to three main factors, drawn from Summum, the monuments case:

1. Whether history shows that "[g]overnments have long used monuments [or license plates] to speak to the public." That's true, the majority says, as to license plate designs, which states have long used to disseminate state-created slogans.
2. Whether the materials "are often closely identified in the public mind with the [State]." That's true, the majority says, as to license plate designs as well as monuments.
   "Each Texas license 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 at the top of every plate. Moreover, the State requires Texas vehicle owners to display license plates, and every Texas license plate is issued by the State. Texas also owns the designs on its license plates, including the designs that Texas adopts on the basis of proposals made by private individuals and organizations. And Texas dictates the manner in which drivers may dispose of unused plates.
   "Texas license plates are, essentially, government IDs. And issuers of ID 'typically do not permit' the placement on their IDs of 'message[s] with which they do not wish to be associated.' Consequently, 'persons who observe' designs on IDs 'routinely - and reasonably - interpret them as conveying some message on the [issuer's] behalf.'
   "Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate. But the individual prefers a license plate design to the purely private speech expressed through bumper stickers. That may well be because Texas's license plate designs convey government agreement with the message displayed."
3. Whether the government "maintain[s] control over the selection of monuments [or license plate designs]." That's true, the majority says, as to license plate designs. "The Board must approve every specialty plate design proposal before the design can appear on a Texas plate. And the Board and its predecessor have actively exercised this authority. Texas asserts, and SCV concedes, that the State has rejected at least a dozen proposed designs…. This final approval authority allows Texas to choose how to present itself and its constituency. Thus, Texas offers plates celebrating the many educational institutions attended by its citizens. But it need not issue plates deriding schooling. Texas offers plates that pay tribute to the Texas citrus industry. But it need not issue plates praising Florida's oranges as far better. And Texas offers plates that say 'Fight Terrorism.' But it need not issue plates promoting al Qaeda."

And "[t]he 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. In Summum, private entities 'financed and donated monuments that the government accept[ed] and display[ed] to the public.' Here, similarly, private parties propose designs that Texas may accept and display on its license plates. In this case, as in Summum, the 'government entity may exercise [its] freedom to express its views" even "when it receives assistance from private sources for the purpose of delivering a government-controlled message.'"

4. On the other hand, the majority distinguishes other government programs in which the government provides support for private speech, but that don't involve government speech - these programs remain nonpublic fora or limited public fora, which means viewpoint discrimination is not allowed in such programs. In particular, it notes that,

1. "This case is not like [Perry Ed. Assn. v. Perry Local Educators' Assn. (1983)], where we found a school district's internal mail system to be a nonpublic forum for private speech. There, it was undisputed that a number of private organizations, including a teachers' union, had access to the mail system. It was therefore clear that private parties, and not only the government, used the system to communicate. Here, by contrast, each specialty license plate design is formally approved by and stamped with the imprimatur of Texas."
2. "Nor is this case like [Lehman v. City of Shaker Heights (1974)], where we found the advertising space on city buses to be a nonpublic forum. There, the messages were located in a context (advertising space) that is traditionally available for private speech. And the advertising space, in contrast to license plates, bore no indicia that the speech was owned or conveyed by the government."
3. "Nor is this case like [Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. (1985)], where we determined that a charitable fundraising program directed at federal employees constituted a nonpublic forum. That forum lacked the kind of history present here. The fundraising drive had never been a medium for government speech. Instead, it was established "to bring order to [a] solicitation process" which had previously consisted of ad hoc solicitation by individual charitable organizations. The drive "was designed to minimize … disruption to the [federal] workplace," not to communicate messages from the government. Further, the charitable solicitations did not appear on a government ID under the government's name. In contrast to the instant case, there was no reason for employees to "interpret [the solicitation] as conveying some message on the [government's] behalf."

The problem, though, is that each of the three Summum factors, which are echoed in these distinctions, leaves a lot uncertain. For instance, there may often be various traditions related to a particular medium or kind of speech, depending on how you look at the matter. Consider, for instance, Cornelius: the fundraising drive there might have never been a medium for government speech, but the broader category of "pamphlets distributed by the government to its employees on government property" (which is how the fundraising program was implemented) had long been overwhelmingly a medium for government speech. Likewise, "messages on government vehicles" and "messages distributed through a school district's internal mail system" had long included government speech; and messages distributed through government internal mail systems had long overwhelmingly consisted of government speech. Conversely, though "license plate designs" had long been government speech, and still in Texas include government speech, they also provide private organizations with access to the program for its own speech.

Likewise, it's often not clear just how identified with the government a particular kind of speech is. For instance, Justice Alito's dissent quite persuasively (and amusingly) argues that few people would view the specialty license plate messages as "conveying some message on the [government's behalf]":

Here is a test. Suppose you sat by the side of a Texas highway and studied the license plates on the vehicles passing by. You would see, in addition to the standard Texas plates, an impressive array of specialty plates. (There are now more than 350 varieties.) You would likely observe plates that honor numerous colleges and universities. You might see plates bearing the name of a high school, a fraternity or sorority, the Masons, the Knights of Columbus, the Daughters of the American Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver.

As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says "Rather Be Golfing" passed by at 8:30 am on a Monday morning, would you think: "This is the official policy of the State - better to golf than to work?" If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas's out-of-state competitors in upcoming games - Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State - would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns' opponents? And when a car zipped by with a plate that reads "NASCAR - 24 Jeff Gordon," would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?

The Court says that all of these messages are government speech. It is essential that government be able to express its own viewpoint, the Court reminds us, because otherwise, how would it promote its programs, like recycling and vaccinations? So when Texas issues a "Rather Be Golfing" plate, but not a "Rather Be Playing Tennis" or "Rather Be Bowling" plate, it is furthering a state policy to promote golf but not tennis or bowling. And when Texas allows motorists to obtain a Notre Dame license plate but not a University of Southern California plate, it is taking sides in that long-time rivalry….

States have not adopted specialty license plate programs like Texas's because they are now bursting with things they want to say on their license plates. Those programs were adopted because they bring in money….

How many groups or individuals would clamor to pay $8,000 (the cost of the deposit required to create a new plate) in order to broadcast the government's message as opposed to their own? And if Texas really wants to speak out in support of, say, Iowa State University (but not the University of Iowa) or "Young Lawyers" (but not old ones), why must it be paid to say things that it really wants to say?

This seems a pretty substantial argument for the proposition that observers wouldn't really perceive the specialty license plates as offering much of a government imprimatur for the specialty message - just as observers wouldn't assume, for instance, that the government is placing its imprimatur on the speech of all the organizations to which it gives tax-exempt status, even though that status benefits the organizations and their ideas much more than access to a specialty license plate program does.

Finally, can the government's maintaining ultimate authority over what to include in the program - no matter how rarely that authority is exercised and no matter how many different messages are approved - really be such an important factor? Could it be that Perry, Lehman, and Cornelius would have treated the speech as government speech (so that the government would have had complete latitude to discriminate based on viewpoint) if only the government had officially stated that it reserved the right to control what's distributed by internal mail, what's posted on the side of buses, or what's included in the federal employee fundraising materials? Is "we reserve the right to discriminate based on viewpoint" all that it takes for the government to be able to discriminate based on viewpoint?

The majority's bottom-line result may be plausible (though a brief that my Scott & Cyan Banister First Amendment Clinic students and I filed in this case on behalf of the Becket Fund, took the contrary view). But it leaves a lot uncertain - perhaps inevitable, given the many contexts in which this "is it government speech?" question arises, but worth recognizing nonetheless.

5. We've already seen a bit of the Alito dissent; more broadly, the dissent follows the Summum factors, but argues that they are absent here. The history, the dissent reasons, doesn't make this government speech: "Up to [when Texas implemented the specialty license plate program], the words on the Texas plates can be considered government speech. The messages were created by the State, and they plausibly promoted state programs. But when, at some point within the last 20 years or so, the State began to allow private entities to secure plates conveying their own messages, Texas crossed the line." The relevant history, to Alito, is the history of the specialty license plate programs, not of license plates generally. The public perception, the dissent reasoned (see the quote above), also cuts against a finding of government speech. And the modest selectivity on the government's part is also not sufficient: "Texas does not take care to approve only those proposed plates that convey messages that the State supports. Instead, it proclaims that it is open to all private messages - except those, like the SCV plate, that would offend some who viewed them."

The dissent also stressed that monuments differ from license plates because of "spatial limitations." "[P]ublic parks can accommodate only a limited number of permanent monuments," and consequently permanent monuments "monopolize the use of the land on which they stand and interfere permanently with other uses of public space." Because only a limited number of monuments can be built in any given space, governments do not allow their parks to be cluttered with monuments that do not serve a government purpose, a point well understood by those who visit parks and view the monuments they contain.

And the dissent reasoned that, when organizations and drivers have to pay to get a specialty license plate, that especially strongly supports the conclusion that the program involves private speech, not government speech. To repeat a line from the long quote above, "if Texas really wants to speak out in support of, say, Iowa State University (but not the University of Iowa) or 'Young Lawyers' (but not old ones), why must it be paid to say things that it really wants to say"? But in any event, whether persuasive or not, the dissent's arguments got only four votes, not five.

6. So all this returns us to the important questions: How will this affect

• tax exemptions for nonprofits, and tax deductions for contributions to nonprofits,
• student loans and other similar benefits that flow to universities,
• benefits for university student groups
• government-provided exclusive rights in trademarks and copyrights,
• and the many other programs in which the government provides property, money, or other benefits for private speakers?

Will the government get more power to characterize these as "government speech," so that it can impose viewpoint-based limitations? For instance, will this support the constitutionality of the exclusion on "disparaging" marks from trademark registration, as in the Redskins case or the Slants case, now being reviewed by the U.S. Court of Appeals for the Federal Circuit? Will this allow the government to deny tax exemption to groups that are allegedly racist, or anti-gay?

My suspicion is that, given the narrowness and of the majority opinion, is that already established prohibitions on viewpoint discrimination in particular kinds of programs won't be much affected. The Court has, for instance, stated that tax exemptions can't be distributed in viewpoint-based ways, and has treated such exemption schemes as essentially limited public fora. It has said the same about benefits to university student groups.

I also think that, where the speech isn't generally displayed to the public in a way that's physically attached to government or government-supplied property (as here or as with the monuments in Summum), the case for the speech being government speech is weak. Thus, I don't think that registered trademarks or copyrighted works should be seen as government speech, though they enjoy government-provided benefits. The government has expressly said (see the discussion in In re Tam (Fed. Cir. 2015)) that "'issuance of a trademark registration' does not 'amount[] to the awarding of the U.S. Government's "imprimatur,"'" though defenders of the cancellation of the Redskins mark take the opposite view.

But the majority in Sons of Confederate Veterans leaves the matter murky; and while the matter was also murky before, it does tend to strengthen the case for a finding of "government speech" - and thus for government authority to choose which viewpoints to support - at least in close and so far unresolved cases.