U.S. Supreme Court rules specialty license plates are government speech, Texas’ prohibitions allowed under First Amendment

The United States Supreme Court, in a 5-4 decision, held today it is constitutional for the Texas Department of Motor Vehicles to reject proposals from the Sons of Confederate Veterans for speciality license plates featuring Confederate battle flags. The Court determined that specialty license plates are government speech; therefore, according to the Court, Texas was permitted to refuse the license plates based on the content of the designs from the Sons of Confederate Veterans.

Flanked by Justice Thomas, Ginsburg, Sotomayor, and Kagan, Justice Breyer delivered the majority opinion. Justice Alito filed a dissenting opinion joined by Justice Roberts, Scalia, and Kennedy. The following paragraphs were taken from Justice Breyer’s opinion found here:

Case summary: 

“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.”

Quotes from Justice Breyer’s majority opinion: 

“…[G]overnment statements do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. See Johanns v. Livestock Marketing Assn., 544 U. S. 550, 559 (2005).

We have therefore refused “[t]o hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals.”

That is not to 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. Summum, supra, at 468. 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. But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their 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.

And just as Texas cannot require SCV to convey “the State’s ideological message,” Wooley, supra, at 715, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates. * * * For the reasons stated, we hold that Texas’s specialty license plate designs constitute government speech and that Texas was consequently entitled to refuse to issue plates featuring SCV’s proposed design. Accordingly, the judgment of the United States Court of Appeals for the Fifth Circuit is . . . Reversed.”

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Quotes from Justice Alito’s dissenting opinion:

“This capacious understanding of government speech takes a large and painful bite out of the First Amendment.”

“. . . [T]he precedent this case sets is dangerous. While all license plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.”

More reaction from the Supreme Court’s ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc., can be found at:

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Eugene Volokh explains hate speech’s protection under the First Amendment in light of Texas shooting

Last week’s shooting during a Muhammad cartoon competition in Texas led to the media bringing up the often-misunderstood topic of hate speech and its level of protection under the First Amendment.

UCLA law professor Eugene Volokh cleared the record for readers of The Washington Post’s Volokh Conspiracy in an article found here. He stated:

“[T]here is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas.”

Volokh went on to explain the difference between hate speech and some forms of unprotected speech, such as fighting words, true threats, and incitement. He pointed out that hate speech may be frowned upon by society, but it is still protected under the First Amendment:

“U.S. law has just never had occasion to define ‘hate speech’ — any more than it has had occasion to define rudeness, evil ideas, unpatriotic speech, or any other kind of speech that people might condemn but that does not constitute a legally relevant category.”

For more on the intersection of the Texas shooting and the First Amendment, check out these articles: