Justices Uphold Texas on Refusal to Allow Confederate Symbol on License Plates

By Mark Walsh — June 18, 2015 3 min read
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The U.S. Supreme Court, in a decision with implications for speech battles in schools, ruled Thursday that a Texas program offering more than 350 specialty messages on license plates involves government speech.

Thus, the state could reject a Confederate heritage group’s proposed design that included an image—a Confederate battle flag—with which the state did not want to be associated, the justices said in a 5-4 decision.

“Texas’s specialty license plate designs are meant to convey and have the effect of conveying a government message,” Justice Stephen G. Breyer wrote for the majority in Walker v. Texas Division, Sons of Confederate Veterans Inc. (Case No. 14-144). “The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider.”

Writing in dissent, Justice Samuel A. Alito Jr. warned that the decision “threatens private speech that the government finds displeasing.”

“Specialty plates may seem innocuous,” Alito said. “They make motorists happy, and they put money in a state’s coffers. But the precedent this case sets is dangerous.”

Battle Flags and Billboards

The case has held potential implications for education both because Confederate symbols worn by students have been a source of friction in schools and because of the larger First Amendment implications about government speech versus private speech.

Breyer’s opinion, which was joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, said relatively little about the Confederate battle flag as a divisive symbol.

Alito’s dissent, which was joined by Chief Justice John G. Roberts Jr., and Justices Antonin Scalia and Anthony M. Kennedy, said the Confederate battle flag is a “controversial symbol,” evoking for the heritage group the memory of those who fought for the South but to others symbolizing “slavery, segregation, and hatred.”

“Whatever it means to motorists who display that symbol and to those who see it, the flag expresses a viewpoint,” Alito said, and the state’s rejection of the Confederate heritage group’s design amounted to viewpoint discrimination.

The ruling has potentially more-sweeping effects on First Amendment free speech cases in the schools generally.

Texas had warned the court that denying the government’s right to disassociate from messages it did not want to convey could lead to, say, school districts being unable to exclude ads promoting marijuana legalization from school publications.

Breyer rejected the idea that the Texas specialty license-plate program fit into any of the court’s definitions for a public forum for speech or even “nonpublic forum,” when the government is a proprietor managing its internal operations.

He distinguished the case from the court’s 1983 decision in Perry Education Association v. Perry Local Educators’ Association, where the court found a school district’s internal mail system to be a nonpublic forum for speech, and thus upheld the access granted the union acting as collective-bargaining agent over an upstart group.

“There, it was undisputed that a number of private organizations, including a teachers’ union, had access to the mail system,” Breyer said. “It was therefore clear that private parties, and not only the government, used the system to communicate. Here, by contrast, each specialty license plate design is formally approved by and stamped with the imprimatur of Texas.”

Alito called the specialty plates “little mobile billboards,” and he noted that among the approved designs were those for a high school and a number of out-of-state colleges, including the University of Oklahoma, the nemesis of the University of Texas.

Alito speculated about a state university that offered billboards, campus bulletin boards, and dorm listservs. “What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty?”

“Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment?” Alito wondered. “I hope not, but the future uses of today’s precedent remain to be seen.”

A version of this news article first appeared in The School Law Blog.