License Plates and Free Speech (Not)
By Roy Gutterman, June 22, 2015
The Supreme Court established that motor vehicle license plates are not a public forum for free speech. In Walker v. Texas Division of Sons of Confederate Veterans, the Supreme Court’s majority opinion, released Thursday, says that license plates are government property and the government can dictate what messages are conveyed on that property.
This case presents an interesting answer to the question of a venue in which the government’s right to control government property intersects with the public’s First Amendment right to free speech. Further, it answers that the government has the right not to endorse a message that might be offensive or contrary to the government’s interest.
Here, in the muddled world of vanity or special license plates, a group of descendants of Civil War veterans wanted to design a specialty license plate in Texas featuring the Confederate flag, a controversial, divisive and offensive symbol to many.
The Texas Department of Motor Vehicles, which issues more than 300 specialty plates representing colleges, universities, parks, sports teams and hobbies, rejected the Confederate flag plate and a lawsuit ensued. Specialty plates cost about $30 and roughly $22 goes to the charity or interest group associated with the plate. Many states offer such opportunities.
A federal district court ruled in favor of the DMV but the Court of Appeals for the Fifth Circuit reversed. The Supreme Court heard the case in March and overruled the appellate court.
Justice Stephen Breyer, writing for the 5-4 majority, wrote that because license plates are government property, the equivalent of an identification tag, the government can dictate what message goes on that property.
“When the government speaks, it is not barred by the Free Speech Clause from determining what it says,” Breyer wrote. Later in the opinion, he wrote “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.”
The court primarily relied on a 2009 case, Pleasant Grove City v. Summum, which empowered a government agency to block a religious group from erecting a monument in a city park.
License plates are not public fora and thus not a venue for public speech, Breyer wrote.
Breyer succinctly and masterfully encourages that if citizens want to express themselves or enter the marketplace of ideas with vehicle tags, they should simply apply a bumper sticker. “Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate,” Breyer wrote.
Justice Samuel Alito’s dissent, however, also makes an interesting point that the Texas DMV allowed hundreds of specialty license plates that conveyed a variety of messages, including content such as “Rather Be Golfing.” Giving the government discretion over what messages can make it onto license plates, he wrote offends the First Amendment. The DMV is regulating First Amendment-related content, even if it says it is not, Alito said.
Even as the case was pending before the Supreme Court, the federal appellate court in New York, the Court of Appeals for the Second Circuit, in May, issued an opinion in a similar license plate regulation case. Though the Second Circuit found that there was no First Amendment violation by New York’s custom plate regulations, it found vanity plates to be private speech on a non-public forum.
There are nuances to both opinions, but the Supreme Court precedent is the law of the land, and perhaps, a reasonable conclusion. Thus, license plates as government property does make sense.
The practical outcome of all this litigation is this: we can probably expect to see more bumper stickers on cars.
Roy S. Gutterman is an associate professor of communications law and journalism and director of the Tully Center for Free Speech at Syracuse University.