License Plate Design, Government Speech

Governments can speak too, and the United States Supreme Court held in the summer of 2015 that a specialty license plate design falls under the category of government speech and governments can speak for themselves.

Government Speech
Government Speech

Usually, free speech is not thought about in terms of the government.  But when government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.  The government is free to promote an idea, or take a position.1

The state of Texas permits drivers to choose either from its standard or specialty license plates.  Specialty license plates can be designed by groups or individuals in the state.2  Texas law authorizes a state Board to approve or to disapprove a design application.3  The Board rejected The Sons of Confederate Veterans application which had a confederate battle flag on it.

Both the regular and specialty license plates display the state’s name, Texas.  The license plate number or a particularized alpha-numeric pattern is also approved by the state.  The state of Texas produces and regulates the content and designs of the plates.

This case hinged upon whether the license plate design is considered government speech or not.  The majority of the court held specialty license plates are government speech.

The majority asserts license plates have been used by state governments as a mode of speech since the early 1900s.4  Not only Texas, but other states use license plates as a way to communicate ideas or beliefs.5

The state is making the speech because the plate is produced by the state, with the message conveyed by the government. “Each Texas license plate is a government article serving the governmental purposes of vehicle registration and identification.”6

Establishing that the speech is government speech is only half of the battle.  As the majority notes early on, government speech is not immune to restrictions.

Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech.  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.7

The Court then turns to a modified “forum analysis” to determine if there are any restrictions on the government speech.8  Because the Court determined the state of Texas is speaking on its own behalf (government speech), a traditional forum analysis does not apply.
The Court identifies the following types of forums: public forum, designated public forum,  a limited public forum, and a non-public forum.  It dismisses attempts to try to classify the specialty license plates as any type of forum.

Both parties agree that a specialty license plate is not a traditional public forum, since there is no controversy with this part of the analysis the court dispenses with it.

Then the court analyzes designated public forums and limited public forums together.  A designated public forum is government property that is “intentionally opened up for that purpose.”9  A limited public forum is where the government reserves space “for certain groups or for the discussion of certain topics.” 10  The Court reasons since there are policies and laws governing the regulation of specialty license plates, it was not intended to be a either a designated public forum or a limited public forum.

As for the non-public forums, which is when the “government is acting as a proprietor, managing its internal operations,”11 the Court dismisses that a non-public forum exists here because of the control Texas exerts over the design process.

Thus, the majority concludes that the government is making the speech, and in the manner the speech is made, there should be no special consideration of the speech.

The main dissent argues the decision allows Texas to be protected while it discriminates based upon viewpoints.  Justice Alito in his dissent offers the following 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?12

The dissent argues by making the plate designs government speech, the government is putting itself in the position of promoting item A over item B, or “taking sides” in private matters.13

While conceding even on specialty license plates there is still some government speech, the dissent argues the specialty design, “convert[s]the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages.”14  The argument being made here is nuanced, that there can be government speech as well as private speech on a single license plate.

Joseph Thomas

Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.
Joseph Thomas

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  1. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 5).
  2. Texas License Plate Design, Create a Plate: Your Design: http://www.myplates.com/BackgroundOnly.
  3. Tex. Stats. §217.45(i)(7).
  4. “By 1919, Texas had begun to display the Lone Star emblem on its plates.” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 9).
  5. “In 1917, Arizona became the first State to display a graphic on its plates.” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 9).
  6. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 10).
  7. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 6)(internal citation omitted).
  8. stating the Supreme Court has used a “forum analysis to evaluate government restrictions on purely private speech that occurs on government property.” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 13)(internal quotation marks omitted).
  9. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 13) (internal quotations marks omitted).
  10. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 14) (internal quotations marks omitted).
  11. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 14) (internal quotations marks omitted).
  12. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 20-21) (Alito, J., dissenting).
  13. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 22) (Alito, J., dissenting).
  14. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ____, ____ (2015) (slip op. at 22) (Alito, J., dissenting).

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Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.

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