Today in
Walker v. Texas Division. Sons of Confederate Veterans, Inc., (Sup. Ct., June 18, 2015), the U.S. Supreme Court in a 5-4 decision upheld a decision by the Texas Department of Motor Vehicles Board to reject an application by Sons of Confederate Veterans for the issuance of a specialty license plate design featuring a Confederate battle flag. The majority in an opinion by Justice Breyer (joined by Justices Thomas, Ginsburg, Sotomayor and Kagan) held the specialty plates are government speech, and that "when government speaks, it is not barred by the Free Speech Clause from determining the content of what it says." The majority, relying largely on its 2009
Summum decision, said the history of license plates show that they have largely communicated state messages and their design is controlled by and closely identified in the public mind with the state. The majority added:
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.
Justice Alito's dissenting opinion (joined by Chief Justice Roberts and Justices Scalia and Kennedy) argued that the 350 varieties of specialty plates issued by the state of Texas are not seen as expressions of state policy:
If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?”
