By Robert Jameson
In March 2015, the Supreme Court heard oral arguments in the case of Walker v. Texas Division, Sons of Confederate Veterans, Inc.[1] The case focused on whether Texas violated the Sons of Confederate Veteran’s (SCV) First Amendment free speech rights in rejecting a specialty license plate displaying the Confederate flag.[2] Texas, among many other states, regularly generates revenue by allowing outside groups like the SCV to propose specialty license plates that people then pay a fee to put on their vehicle.[3] However, Texas twice denied the group’s request for a Confederate Flag license plate.[4]
The legal issue facing the court is whether the message on the state-issued license plate represents speech by the government or whether it is a private message.[5] If the license plate constitutes government-sponsored speech, then it is not afforded protection under the free speech clause of the First Amendment.[6] But if it is determined to be private speech, then the state’s rejection could violate constitutionally protected rights.[7]
Texas has maintained that the license plate is indeed government speech, and therefore, the state is acting within its constitutional authority in rejecting it.[8] The Fifth Circuit Court of Appeals disagreed with Texas and ruled that state officials did not have grounds to reject the plate.[9] In reaching this conclusion, the Fifth Circuit adopted a “reasonable observer” analysis that looks at whether a reasonable and fully informed observer would consider the speaker to be the government or a private party.[10] The Fifth Circuit held that a reasonable person would not view a license plate as the government trying to convey a message.[11] The Seventh, Eighth and Ninth Circuits have similarly relied on this reasonable observer test to uphold the constitutionality of novelty license plates that have been deemed offensive.[12]
However, the Sixth Circuit Court of Appeals departed from the reasonable observer test and chose to apply a new standard articulated in the Supreme Court cases of Pleasant Grove City v. Summum andJohanns v. Livestock Marketing Ass’n, which held that when the government determines an overarching message and retains power to approve what is disseminated, the message must be attributed to the government for First Amendment purposes.[13] This has led some to argue that the majority interpretation of the reasonable observer standard is wrong and inconsistent with the newer “control” test set out is Johanns.[14] Rather, the test is not whether a third party can identify if the government is the speaker, but if the government is actually speaking.[15] The reasonable observer approach is criticized for categorizing novelty license plates as private speech because doing so will ultimately force states to approve a wide range of plates that send messages conflicting with the state principles.[16]
When it comes to deciding Walker, this last point may garner a sympathetic ear from at least a few Supreme Court Justices. While during oral arguments, a broad range of justices expressed skepticism that the license plate program constitutes government speech, at least two justices – Justices Ginsburg and Kennedy – were concerned that if Texas were to prevail it, might pave the way for symbols or speech that are even more controversial.[17] Justices Ginsburg and Kennedy asked James George Jr., a lawyer for the SCV, if under his organization’s line of reasoning would states be mandated to “design a swastika” license plate? George answered that it would.[18]
The Supreme Court should adopt the standard set forth in Johanns to avoid forcing Texas to convey a message that is not consistent with the image that the state wishes to project. [19] Regardless if a reasonable observer would view the license plate to be government speech because the license plate is only available through the state and can only be approved by the state government, it constitutes government speech and should not be afforded First Amendment protections. It is also important to note that the currently designed confederate license plate would still bear the state’s name and state symbol, which should militate against even a reasonable observer standard.[20] Finally, in order to avoid the absurdity that the Fifth Circuit’s ruling will create in regards to the potential for racist, sexist or homophobic license plates, the Supreme Court should create a bright line rule that license plates constitute government speech and are not covered by the first amendment.
[1] See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 2014 U.S. LEXIS 8119 (U.S. 2014).
[2] Maureen Johnston, Petition of the day, SCOTUSblog (Oct. 30, 2014, 10:16 PM), https://www.scotusblog.com/2014/10/petition-of-the-day-714/.
[3] Lawrence Hurley, Confederate flag license plate battle reaches U.S. Supreme Court, Reuters (Mar. 22, 2015, 10:33 am),https://www.reuters.com/article/2015/03/22/us-usa-court-flag-idUSKBN0MI0F720150322.
[4] Niraj Chokshi, Texas wants U.S. Supreme Court to help it block Confederate license plates, Washington Post (Sept. 2, 2014),https://www.washingtonpost.com/blogs/govbeat/wp/2014/09/02/texas-wants-u-s-supreme-court-to-help-it-block-confederate-license-plates/.
[5] Ariane de Vogue, Supreme Court takes on specialty license plates, CNN (Mar. 23, 2015, 5:14 pm),https://www.cnn.com/2015/03/19/politics/supreme-court-license-plates/index.html.
[6] See generally Pleasant Grove City v. Summum, 555 U.S. 460 (2009).
[7] Id. at 467-68
[8] See Tex. Div., Sons of Confederate Veterans, Inc. v. Vandergriff, 759 F.3d 388, 393 (5th Cir. 2014) (arguing that speech is government speech when it is under the government’s effective control).
[9] Id. at 412.
[10] See id. at 394.
[11] See id.
[12] See generally Scott Gaylord, “Kill the Sea Turtles” and Other Things You Can’t Make the Government Say, Wash & Lee L. Rev. 93, 93 (2014).
[13] See ACLU of Tenn. v. Bredesen, 441 F.3d 370, 375-377 (6th Cir. 2006)
[14] See Gaylord, supra note 12, at 163-165.
[15] See id.
[16] See id.
[17] Ariane de Vogue, Supreme Court skeptical of specialty license plate case, CNN (Mar. 23, 2015, 7:1 pm),https://www.cnn.com/2015/03/23/politics/supreme-court-first-amendment-specialty-plates/.
[18] See id.
[19] See Summum, 555 U.S. 460, 473 (2009).
[20] See Vogue, supra note 5