Specialty license plates are government speech, so Texas can reject the Sons of Confederate Veterans design.

There are 6 new Supreme Court cases this morning. Which one to read first? I'm going with the license plate case. The government wins in a free speech case, and the "liberal" side of the Court achieves its majority through the addition of Justice Thomas. The case is Walker v. Texas Sons of Confederate Veterans (PDF).

Justice Breyer, writing for the majority, says that "as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position," and "it is not barred by the Free Speech Clause from determining the content of what it says." If it were, "government would not work."

But are specialty license plates government speech? Texas set up a procedure that let private citizens participate in designing, then rejected the one that the Sons of Confederate Veterans wanted.



Breyer emphasizes that the point of getting a license plate — as opposed to just putting a bumper sticker on your care — is that you want to acquire and display the impression of the state's endorsement of your message. The state is expressing something by producing a license plate and itneeds to be able to choose "how to present itself and its constituency." It can accept the "Fight Terrorism" design and reject the pro-al Qaeda plate.

For the majority, this case is like the Pleasant Grove v. Summum case where the city was allowed to accept some donated monuments for the park and reject others.

The dissenters — in an opinion written by Justice Alito — say the majority "passes off private speech as government speech." There are "more than 350" specialty plates in Texas. Do people really read them as government speech rather than the speech of the car owner?

If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Mon- day morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games — Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State — would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?

Alito distinguishes Summum. There's a history of government erecting monuments as a form of expression and no history of landowners allowing others to put up permanent monuments on their land. And there's limited space in a park. In Summum, the government had a selective process, but the Texas license-plate procedure was not selective:

The Board’s chairman, who is charged with approving designs, explained that the program’s purpose is “to encourage private plates” in order to “generate additional revenue for the state.” And most of the time, the Board “base[s] [its] decisions on rules that primarily deal with reflectivity and readability.” A Department brochure explains: “Q. Who provides the plate design? A. You do, though your design is subject to reflectivity, legibility, and design standards.”

In addition, Alito notes, Texas was charging groups $8,000 a year to have their designs on a plate:

[I]f Texas really wants to speak out in support of, say, Iowa State University (but not the University of Iowa) or “Young Lawyers” (but not old ones), why must it be paid to say things that it really wants to say?...

Clearly, Texas is in it for the money, not because it is "bursting with things" it wants to say.