A Legal Primer prepared by Jerry Patterson

This most important case, to be argued before the Supreme Court of the United States on Monday March 23, 2015, arises from the submission of a application for a specialty license plate by the Texas Division, Sons of Confederate Veterans, Inc. (SCV), a non-profit corporation, to the Texas Department of Motor Vehicles Board (DMVB). The SCV applied to the DMVB in 2009 to create a specialty license plate for members of the public to purchase and install on their motor vehicles. Texas, like many other states, has passed a statute that allows drivers to create specialty license plates for display on their motor vehicles for an additional fee on top of the cost of an ordinary state license plate.

The Texas statute provides three ways to create a specialty licenseplate: (1) the state legislature may authorize a new plate design; (2) an individual or for-profit organization may design a plate and submit the design to MyPlates.com, a private company, subject to approval by the Texas Department of Motor Vehicles Board (DMVB); or (3) the DMVB may issue a new specialty license plate on its own or after approving an application from any non-profit organization. The third way of creating a specialty plate is at issue in this case. The SCV submitted a specialty license plate design application with the SCV seal, including the Confederate battle flag surrounded by the words “Sons of Confederate Veterans 1896.” The SCV’s application was initially approved and then it was denied in 2011with the explanation that many members of the general public would find the design “offensive.”

SCV filed a lawsuit in federal court against the Texas DMVB challenging the denial as a violation of the First Amendment to the United States Constitution. The district court ruled against the SCV. In 2013, the district court found that the designs displayed on Texas specialty license plates amounted to government speech on government issued license plates as opposed to private speech unattributed to the government or State and dismissed the SCV’scase.
Thus, the court held that the designs displayed by individual drivers were not protected by the First Amendment and there was no violation of the SCV’s constitutional protections because the DMVB did not discriminate against any particular viewpoint in denying the SCV’s application. The SCV appealed to the Fifth Circuit Court of Appeals and the decision was reversed. In July 2014, the Fifth Circuit found the specialty license plates were private speech and that the DMVB engaged in viewpoint discrimination against the SCV when it denied its application.
The Texas DMVB then petitioned the United States Supreme Court to hear the case, and now the High Court has chosen to hear the case on March 23, 2015.

Both parties rely on their interpretation of legal precedent to make their case. Based on this legal precedent, the Supreme Court must decide two specific issues to determine whether the Texas DMVB’s denial of the SCV’s application violated the First Amendment. First, the Court must decide whether the designs on specialty license plates constitute the private driver’s speech or the government or State’s speech. The Free Speech Clause of the First Amendment restricts the government’s regulation of private speech, but it does not regulate government speech.

If the Court decides that it is government speech, the case is decided against SCV. If the Court decides the speech is private speech, then the Court must decide whether the denial of SCV’s application amounts to an unlawful rejection of the SCV’s viewpoint on the Confederate battle flag.

With regard to the issue of private or government speech as applied to specialty license plates, this is a case of first impression for the Supreme Court. But if the factors set out in the Supreme Court’s decision in Pleasant Grove City, Utah v. Summum, the most recent case involving government speech, are employed, the Supreme Court’s decision in Wooley v. Maynard involving license plates is applied, and decisions of the circuit court of appeals that have addressed the issue are examined, there is no question that the speech should be considered the private speech published by the driver of the vehicle and not the State’s speech.

In Summum, 555 U.S. 460 (2009), the Supreme Court set forth several factors that may be considered to determine whether speech is private or government speech. The factors are: (1) whether the speech is permanent or transitory; (2) whether the speech is closely identified in the public mind with the government or in other words, whether the speech is meant to convey or has the effect of conveying a government message; and (3) whether the government effectively controls the message by exercising final approval authority. All three factors weigh in favor of private speech here. A message on a specialty plate is transitory. The message is only expressed to those who pass by on public roadways, and the plate itself has to be renewed annually. The messages on specialty license plates are closely identified not with the government, but with the driver of the car on which they are displayed. The general public is savvy enough to know it is the driver and not the State who is publishing the speech. Lastly, the DMVB has not actually exercised any final approval authority with regard to Texas specialty license plates. The DMVB has never turned down a specialty license plate application before the SCV’s application in this case. Plus, the “final approval authority” with regard to displaying a specialty license plate is the actual driver of the motor vehicle and not the DMVB. If no driver wants to express the message on the specialty plate, no speech ever occurs.

Although the Supreme Court has not expressly decided the issue of private vs. government speech with regard to specialty license plates, it has previously held that messages on a license plate are the speech of the driver. In Wooley v. Maynard, 430 U.S. 705 (1977), a majority of the Court recognized that messages on license plates are “readily associated” with the driver and implicate the driver’s free speech rights. The Court noted that the purpose of a message on a license plate is “to advertise the message it bears,” and a license plate is akin to a “mobile billboard,” and a driver is a “courier for such message” expressed on a license plate. If messages on license plates were merely government speech, the Free Speech Clause would not have been implicated in Wooley, and the case would have come out differently.

Lastly, every circuit court of appeals to address the issue has held the speech on specialty license plates is private speech. In Arizona Life Coalition, Inc. v. Stanton, 515 F.3d 956 (9th Cir.2008), cert. denied, 555 U.S. 815 (2008), the Ninth Circuit held Arizona’s special organization license plate program was primarily private speech and the restrictions applied to the program had to be viewpoint neutral. In Roach v. Stouffer, 560 F.3d 860 (8th Cir. 2009), the Eighth Circuit held a specialty license plate designed pursuant to Missouri’s organizational license plate program was the private speech of the organization and the vehicle owner. Finally, in Texas Div., Sons of Confederate Veterans, Inc. v. Vandergriff, 759 F.3d 388 (5th Cir. 2014) the Fifth Circuit held a reasonable observer would understand the specialty license plate featuring the Confederate battle flag involved private speech and not the State’s speech. Thus, there have now been three circuit courts of appeals to address the type of specialty plates at issue here, and each one of them has concluded that the specialty plates at issue in this type of program implicate private speech. The speech represented on a specialty license plate submitted by a non-profit organization is not that of the State but that of the driver of the vehicle.

Once the Supreme Court makes the determination that the specialty license plate program in this case publishes the private speech of the driver of the vehicle, then the Court will be asked to decide whether the specific denial of the SCV plate in this case amounted to impermissible viewpoint discrimination in violation of the First Amendment. It is undeniable that the Confederate battle flag is a symbol that evokes passionate viewpoints, both in favor and in opposition. The discussion that arises about the Confederate battle flag is exactly the sort of robust debate that is protected by the First Amendment. When the DMVB rejected the SCV’s license plate, it entered into the debate over the flag’s meaning and endorsed a particular viewpoint. The DMVB gave its opinion that the Confederate battle flag is a symbol of “racism,” and discriminated against those who view the flag as a historic symbol of the Confederate soldier’s sacrifice, independence, and Southern heritage. The DMVB’s rejection of the SCV plate constituted impermissible viewpoint discrimination prohibited by the First Amendment. Further, the explanation given by the DMVB fails to justify the denial. As explained by the Supreme Court in Snyder v. Phelps, 131 S. Ct. 1207 (2011), it has long been an established rule of First Amendment law that speech cannot be curtailed simply because it may be offensive to some. As a result of the foregoing, the Texas DMVB’s denial of SCV’s specialty license plate application amounted to a clear violation of the First Amendment’s Free Speech Clause.