Must Texas Issue Confederate Flag License Plates?

The Supreme Court recently granted review in Walker v. Texas Division, Sons of Confederate Veterans (TSCV), which poses the question whether Texas violated the First Amendment when it denied TSCV’s application for a state-issued license plate with a Confederate battle flag logo.

The case looks different depending on how one understands specialty license plates. Are they private speech? If so, then TSCV should probably win, because government may not censor unpopular, even hurtful and offensive, private viewpoints.

Or maybe state-issued specialty license plates should be regarded as government speech. If so, then surely the government may choose not to endorse the Confederate battle flag, given its association with slavery, segregation, and racism.

There is, however, a third possibility—one that was acknowledged but rejected by the U.S. Court of Appeals for the Fifth Circuit in ruling in favor of TSCV. Perhaps the First Amendment ought to make room for an intermediate category of “mixed” private/government speech. Difficult questions would remain, even under such an approach, but those questions would hew more closely to the facts and values at play in specialty plate cases than either the pure private speech or pure government speech view.

The Texas Specialty Plate Program

Like many other states, Texas offers automobile owners the opportunity to obtain specialty license plates with a distinctive motto and design. The extra fees charged for specialty plates typically raise revenue for states and the organizations to which they refer.

In Texas, drivers can choose from a very wide array of “off-the rack” plates. These include: civic-minded messages like “Be A Blood Donor,” “Conserve Water,” and “Fight Terrorism”; support for professional and college sports teams both within and outside of Texas; notations of veteran status either in general or for particular wars; and many other categories.

Texans dissatisfied with the pre-packaged choices can also request custom-designed specialty plates. The TSCV did just that, seeking approval for a plate bearing the designation “Sons of Confederate Veterans 1896” and an image of the Confederate Battle Flag. After a public hearing and several internal votes, the Texas Department of Transportation rejected the application under a provision of state law authorizing the rejection of “a new specialty license plate if the design might be offensive to any member of the public.”

TSCV sued and lost in the district court, but the court of appeals reversed. Then, entering an area that has generated litigation around the country for over a decade, the Supreme Court agreed to review the case.

The petition for review that the high Court granted poses two questions: First, is a specialty plate private speech or government speech? And second, if specialty plates are private speech, is the Texas denial nonetheless permitted under the First Amendment on the ground that it does not discriminate against any particular viewpoint? The second question is more straightforward than the first, so I will consider them in reverse order.

Viewpoint Discrimination

Texas argues that even if specialty plates are private speech, its denial of the TSCV application was permissible under the First Amendment. Private parties have a free speech right to display Confederate battle flags on purely private property—on flagpoles in front of their homes, on lapel pins, or on bumper stickers, for example. However, a specialty license plate is what the case law calls a government-created forum, subject to greater government control.

Supreme Court precedent recognizes a variety of such fora, each with its own rules about how much government control is permitted. Yet, as the parties agree, in every kind of government forum for private speech, regulations must be “viewpoint neutral.” That is, the government may not favor one side of a question over the other. If it permits pro-life speech it must permit pro-choice speech; if it permits pro-war speech it must permit anti-war speech; and vice-versa.

Texas argued that its denial of the TSCV application was viewpoint neutral because the state has not permitted any speech on the other side of the issue either. The state simply does not issue license plates either for or against Confederate battle flags. Thus, says the state, the denial of the TSCV application is a permissible restriction on the subject matter of speech, not an impermissible restriction based on viewpoint.

That argument failed in the appeals court and it should fail in the Supreme Court. The state denied the TSCV application because it would be offensive to many Texans. Yet offense is almost inherently viewpoint based and is clearly viewpoint based here.

The relevant category is not speech using the Confederate battle flag but speech that conveys the message that is deemed offensive. The Texans who find the flag offensive do so (quite understandably) because of its association with the Confederacy, segregation, and racism. Unless Texas would be prepared to deny pro-Union commemorative license plates, the denial is viewpoint based. And in fact, the off-the-rack plates include pro-Union military plates, including one commemorating the Civil War era Union Army service of African Americans (“Buffalo Soldiers”).

Thus, if the Court concludes that specialty license plates are private speech, it should also conclude that the Texas denial of the TSCV application was unconstitutionally viewpoint based.

The Government Speech Doctrine

But is a state-issued specialty license plate private speech? The leading—indeed, the only—free speech precedent from the Supreme Court concerning license plates is the 1977 decision in Wooley v. Maynard. There, the Justices found that Jehovah’s Witnesses who disagreed with the New Hampshire motto “Live Free Or Die” had a free speech right to tape over it on their state-issued license plates. (New Hampshire did not issue plates without the logo.)

The appeals court in the TSCV case found Wooley highly salient. It noted that the Supreme Court never even considered the possibility that the license plates were government speech rather than private speech. That’s true, but the government speech doctrine largely post-dates Wooley, and so the Court’s failure to address it there is not especially significant.

The government speech doctrine that has developed in the decades since Wooley recognizes the difference between government as regulator and government as speaker. The First Amendment forbids the government from censoring private speech, but when the government itself expresses a viewpoint, it is not engaging in censorship. The government speech doctrine does not rest on the proposition that the government has First Amendment rights of its own. Rather, the government may speak freely because government speech is often an effective form of government action.

For example, campaigns to urge people not to smoke pursue public health objectives; government speech in favor of recycling is a form of environmental and sanitation policy; and government messages urging emergency preparedness promote public safety. In speaking, as in acting, government policy need not remain neutral as between health and illness, cleanliness and dirt, or survival and death.

If the issuance of specialty license plates is government speech, then Texas should win the TSCV case. During the Civil War, the Union government did much more than refuse to speak on behalf of disunion; the Union killed over a hundred thousand U.S. citizens who fought for the Confederacy. Surely the government today need not endorse the flag under which the rebels fought.

Indeed, as I argued in a 2011 article in the Virginia Law Review, in some circumstances the Constitution, through its Equal Protection Clause, may not even permit a state to fly the Confederate battle flag, given its frequent association with slavery, segregation, and racism. At the very least, the Constitution does not require a state to do so.

Government Speech or Private Speech

Would the issuance of specialty license plates to TSCV really be comparable to the state itself flying a Confederate battle flag? The appeals court said no. It applied a test drawn from the concurring opinion of Justice David Souter in the 2009 case of Pleasant Grove City v. Summum: “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.”

In Summum, the majority held that “the placement of a permanent monument in a public park is best viewed as a form of government speech.” Applying his “reasonable observer” test, Justice Souter agreed.

The appeals court noted a number of differences between the proposed stone monument in Summum and specialty license plates, including these: the former would have been permanent, whereas the latter can be changed yearly; space for monuments in public parks is limited whereas a specialty plate does not crowd out competing messages; and most importantly, the public would generally understand messages on license plates as the private speech of the drivers.

A New Category of “Mixed” Speech

The appeals court was undoubtedly correct that specialty license plates are more like purely private speech than government acceptance of a stone monument in a public park, but it does not follow that specialty plates are simply private speech.

The real answer to the question whether specialty license plates are private speech or government speech is that they contain elements of both. The automobile owner chooses which, if any, specialty plate to display, but in issuing the plate for official purposes, the state conveys at least some measure of approval of the message it displays.

Approving a specialty license plate differs from permitting a private group to hold a rally on public property, given the state’s necessary role in the creation of the plate. Indeed, it may be just this tacit measure of government approval that leads car owners to seek specialty plates, rather than to be satisfied with a bumper sticker or license plate holder that conveys the same message.

Accordingly, the dissenting judge in the appeals court thought that restrictions on specialty license plates would be better evaluated under a hitherto-unrecognized category for “mixed” government and private speech. University of Miami law professor Caroline Mala Corbin provided a sophisticated argument for and elaboration of this new category in a 2008 article in the NYU Law Review article.

In writing about Tennessee’s policy of issuing pro-life but not pro-choice specialty license plates in 2003, I concluded that specialty license plate programs are better understood as government speech than private speech. However, Corbin’s article persuaded me that one need not choose between pure private speech and pure government speech.

How should courts handle mixed private/government speech? Professor Corbin proposed that when faced with cases falling into this intermediate category courts ought to apply “intermediate scrutiny,” a test drawn from the Supreme Court’s sex equality cases that is also applicable to a different kind of mixed speech: speech mixed with conduct.

That makes sense, but the intermediate scrutiny test does not apply itself. For her part, Professor Corbin proposed that government’s ability to discriminate based on viewpoint in issuing license plates should depend on the reason for such discrimination: Mere government disagreement with a private message—as when Tennessee denied the pro-choice license plates—would not be a strong enough reason, but avoiding actual harm from speech—as when African Americans and others feel victimized by the state’s seeming endorsement of its racist past—would.

Neither the state’s petition nor TSCV’s response asked the Court to recognize a new category of mixed private/government speech, but that probably has more to do with the incentives of litigation than the merits of such a category. TSCV would probably lose the case under a mixed category. Meanwhile, although Texas would win this case, it and other states would be much more constrained in their ability to reject proposed license plates on other grounds.

An intermediate category for mixed private/government speech would not turn hard cases into easy ones, but it would at least prevent judges from pretending that hard cases are easy. That alone is a reason to hope that the Supreme Court recognizes that in a world of pervasive regulation, some speech falls between the cracks of its existing categories.

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