In Walker v. Texas Division, Sons of Confederate Veterans, Inc., 576 U.S. ___ (2015), the U.S. Supreme Court held, 5-4, that Texas may deny a proposed specialty license plate design featuring the Confederate flag because specialty license plate designs are government speech.

Texas offers automobile owners a choice between ordinary and specialty license plates. Those who want the State to issue a particular specialty plate may propose a plate design, comprised of a slogan or graphic. If the Texas Department of Motor Vehicle Board (Board) approves the design, the State will issue the license plate and make it available for display on registered vehicles in Texas. In this case, the Texas Division of the Sons of Confederate Veterans (SCV) proposed a design, which included a confederate flag. After receiving public comment on the proposed plate, the Board unanimously voted against issuing it, noting that many members of the general public found the design offensive.

SCV sued, claiming the denial was a violation of the First Amendment’s Free Speech Clause. The District Court entered judgment for the Board. The Court of Appeals for the Fifth Circuit reversed, holding that Texas’s specialty license plate designs are private speech and that the Board, in refusing to approve SCV’s design, engaged in unconstitutional viewpoint discrimination.

The Supreme Court reversed holding that the license plate slogans and designs constituted government speech and that the First Amendment does not prohibit the government from determining the content of its own speech.The Court relied heavily on Pleasant Grove City v. Summum, 555 U.S. 460 (2009), where the Court held that monuments in a public park are government speech and that a city may accept some privately donated monuments and reject others. Here, the Court applied the various factors outlined in Summun in concluding that licenses plates are government speech. First, just as states have a long history of using monuments to speak to the public, states have a long history of using license plates to communicate state-sponsored messages, i.e. “to urge action, to promote tourism, and to tout local industries.” Second, just as monument observers associate the monument’s message with the land owner, license plate designs “are often closely identified in the public mind with the [State],” especially since the state appears on the plate and the state requires license plates. Third, like the city government in Summum, Texas “has ‘effectively controlled’ the messages [conveyed] by exercising ‘final approval authority’ over their selection.”

This win for local governments reinforces the idea that local governments would simply not work if the Free Speech Clause was interpreted otherwise. For example, how could a municipal government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include a long plea from the local trash disposal enterprise demanding the contrary? The Court aptly noted thatit “is not easy to imagine how government could function if it lacked the freedom to select the messages it wishes to convey.” (internal quotations omitted).

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