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SCOTUS Holds Texas Would “Rather Be Golfing”
July 16, 2015 ~ 0 comments

By: Nichole Pieper, 3L, Liberty University School of Law

Introduction

            Government censorship is shown in many recent cases where States are banning “Choose Life” license plates because the message is Pro-Life and the government assumes the public will find it offensive. The voice of the people can be censored under the guise of government speech as recently ruled in Walker v. Sons of the Confederate Veterans. The Court has now allowed the government to decide for you what you think is offensive. Thus, the government establishes the new political and social norms through authorized censorship.

The Case

Issue

            The Texas Division of The Sons of Confederate Veterans (SCV) filed suit against the State of Texas after their design for a specialty license plate was rejected by the DMV’s submission process. The design contained a confederate flag, the SCV’s logo, and the words “SONS OF CONFEDERATE VETERANS” along with the State’s name and silhouette.[1] The application was denied because public sentiment showed concern that the plate might be viewed as offensive because of its use of the Confederate flag.

Holding

            On June 18, 2015, the Supreme Court ruled in favor of the State of Texas in holding that specialty license plates are government speech.  

Rule

            The Court ruled that when the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.[2] The Court said that it has refused “to hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals.”[3]

Similarities to Summum  

            The Court finds Pleasant Grove City v. Summon to be dispositive in holding that the license plate designs are government speech. In Summum, the city accepted a privately donated monument and placed it on city property. The Court held that the city accepting the monument and placing it on city property was expressive conduct and, therefore, government speech. The court found three areas consistent with the holding and analysis in Summum.

            First in Summum, the Court emphasizes the historical significance of governments using monuments to speak to the public. The Court says the government intends to convey a message or a feeling to those who see the monument. Similarly, like the monument in Summum, the Court in Walker reasoned that the State wishes to display a message by the license plates it decides to approve.[4]

            Second, in Summum the Court notes that it was uncommon for property owners to allow permanent monuments to be put on their property without agreeing with the message[5]. This Court compares those property owners with Texas’s DMV and the State supporting messages on government property license plates. According to Summum, a reasonable observer viewing the monuments will associate the monument with the speaker. Likewise, the Court holds that the license plate designs are closely associated with the State and the reasonable observer will associate the message on the plate with the State.[6] The State believes that by endorsing the plate the reasonable observer will believe the State is supporting the offensive message of the Confederate Flag and the Court agrees.   

            Last, the Court found that in Summum the city maintained control over the selection of the monuments to be placed in a park much like Texas maintained control over the selection of which designs would become license plates. Similar to Summum, Texas had full control over final selection of the license plates.[7]

Forum

            The Court fails to hold that there is a forum in Walker or a specific place designated, by the government or tradition, for speech and expression. The court recognizes four established forums: traditional public, designated public, non-public, and limited public. The court first recognizes the traditional public forum in which the private speaker has the full First Amendment Freedom of Speech in places that have traditionally been seen as public such as parks and sidewalks.[8] In this forum, the government may not discriminate based on content or viewpoint unless there is a compelling State interest.

            The Court also recognizes the designated public forum, which is similar to the traditional public forum, but is government property that has not traditionally been regarded as a public forum that is intentionally opened up for public use.[9] Examples of designated public forums include, municipal theaters or State run college classrooms, which are set aside for meetings or events.  The government may not discriminate based on content or viewpoint in this forum either, unless there is a compelling State interest. Thus, the speaker is afforded full First Amendment protection.

            The Court also assessed the non-public forum. This is government property that is not open to the public. The government chooses to allow only certain groups to use that property under this forum and may not discriminate based on viewpoint unless there is a compelling State interest, but “access … can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker's view.”[10]

            The final forum, which the Court considers, is the limited-public forum. This forum is created when the government has “reserved a forum for certain groups or for the discussion of certain topics.”[11] The government may not discriminate based on the viewpoint of the speech when allowing people to use the property unless there is a compelling State interest, but may discriminate based on the class or type of speech.

                The Court holds that there is no forum analysis for government speech, and ultimately concludes that forum analysis does not apply. Thus, there are no restrictions on how far the government may discriminate against speech. There are no First Amendment protections for the private speaker when the government is considered the speaker, and the speech can be discriminated against based on content and viewpoint.

Conclusion

            The Court holds that license plate designs are considered the speech of the State and not the individual. Because the Court places the speech in this category, it gives the State a voice and eliminates any restriction on State discrimination of speech. The Court, however, holds that the Wooley[12] protection still applies for the private speaker, meaning that the government cannot force you to speak or adopt its message under the First Amendment. You do not have a right to make sure your view is represented but the State cannot make you buy a certain license plate endorsing their view or speech. The court concludes by saying that there is individual speech represented by the license plate but that the speech is considered government speech.[13]

Criticism of Summum

            Justice Alito writes a dissent in Walker giving cause for concern. Having written the majority opinion in Summum, Alito’s dissent in Walker highlights the divergence from the reasoning in Summum. The majority ignores Alito’s warnings and forces an analogous situation out of Summum in order that the State may continue to regulate speech in the name of political correctness, out of the fear of offending citizens, and to keep State run programs free to control.

            Justice Alito uses common sense and the “reasonable observer” to illustrate that license plate designs are private speech in a limited public forum. Justice Alito gives this vivid example-  “If a car with a plate that says ‘Rather Be Golfing’ passed by at 8:30 a.m. on a Monday morning, would you think: ‘This is the official policy of the State- better to golf than to work?’”[14] Alito’s example shows that the reasonable observer would not conclude that the State has endorsed that message as an actual State policy or motto. Better yet, as Alito points out, the person displaying the license plate pays extra to display that message. Alito also drives his point home by saying:

“How many groups or individuals would clamor to pay $8,000 (the cost of the deposit required to create a new plate) in order to broadcast the government’s message as opposed to their own? And if 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?” [15]

            Justice Alito brings to the Court’s attention that the main concern of Summum was the amount of space in the park for the monuments.[16] The government was able to pick and choose, because there physically was not enough room for every ideology. Here, the situation is different, and the Court has completely misapplied the reasoning behind Summum. License plates are made when ordered and do not have to be stored. Therefore, there are no space issues and the reasoning in Summum is not applicable. “The only absolute limit on the number of specialty plates that a State could issue is the number of registered vehicles.”[17]

Lack of Forum

            In his historical analysis, Justice Alito shows how the State opened up government property for private speech by creating a limited public forum with the license plate design program. This is where the speech shifts from pure government speech to private speech with the creation of a limited public forum. Alito shows how the Court has effectively taken away the forum analysis in order to give the government a voice, even though it never had a voice. If the Court had ruled that this was private speech, the government would be restricted in what it would be able to censor.

Future Concerns For Free Speech

            The future concerns for private speech are very distressing to anyone in a limited public forum in which government speech and private speech are combined. If the court can find that the State’s position is in any way homogenous to the situation in Summum then they can classify the speech as government speech and take away any Free Speech right of the private speaker.

            Justice Alito mentions State owned billboards with ad space that could be regulated in the same manner.[18] If the State buys and places billboards along its highways with the slogan, “Don’t Text And Drive. It’s The Law!” and leaves part of the billboards empty for ad space to rent, the State would be able to discriminate on both content and viewpoint the speech of those ads.

            In effect, by deeming it government speech, the Court gave the State a voice by allowing it to discriminate based on viewpoint where before the State did not have a voice and was not speaking. Now we pay to have the government speak for us. Traditionally the Court has held whether the reasonable observer would view the speech as the government speaking; now the Court holds that it is government speech because there is a need for government run programs to survive.[19] Walker is the epitome of Court supported bureaucracy as illustrated by its theft of Free Speech. The State now becomes our voice for the sake of State run programs, for “the good of the people.” This is just the beginning and the question we need to be asking is, where do we draw the line?

Circuit Court Split

            The Circuit courts have been divided on how they have ruled on what to call license plate speech. Before Walker, the Circuit Courts were not able to come to a consensus on whether license plate designs are private or government speech. These cases find themselves manifested primarily in one type of license plate displaying the motto “Choose Life.”  Many States have denied the slogan design.  The Seventh, Eighth, and Ninth Circuit Courts have all held that license plate designs are private speech. The Fourth Circuit held that license plate speech is hybrid speech consisting of both government and private speech. The Sixth Circuit has held that license plate speech is government speech.[20] The Supreme Court in Walker follows the reasonable observer test used in the Seventh and Eighth Circuits in part while combining it with the rational in Summum. These cases are different; they are not a business or a sports team that wants their name on a license plate as an advertisement, but a Pro-Life organization that wants to use the proceeds from the license plates to raise money in support of ending abortion.

Conclusion

            The Court has left it to the discretion of the State to give one group of people a voice because the State finds that view acceptable, while a whole part of the population is silenced. The main reason for which the First Amendment was created- to advocate for political discussion and the differing of views and opinions- is violated by the bang of a gavel and the partiality of the State. In the end, whether it’s a Pro-Life or favorite football team license plate, this case is of extreme importance to every American. With this ruling, the Court opens doors for future speech discrimination on any level so long as the State can show that they have a need that is the tiniest bit comparable to Summum.



[1] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ­­___, 4 (2015).

[2] “When government speaks, it is not barred by the Free Speech Clause form determining the content of what it says Id. at 1 (citing Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467-468 (2009)).

[3] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 6 (2015).

[4] “…when a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.”  Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 8 (2015).

[5] Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 471 (2009).

[6] “As a result, ‘persons who observe donated monuments routinely-and reasonably-interpret them as conveying some message on the property owner’s behalf.’ And ‘observers’ of such monuments, as a consequence, ordinarily ‘appreciate the identity of the speaker’” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S.___,8 (2015) (citing Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 471(2009)).

[7] “Third, we found relevant the fact that the city maintained control over the selection of monuments.” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 8 (2015).

[8] Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).

[9] Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009).

[10] Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800, (1985).

[11] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 14 (2015).

[12] “Where the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message. We conclude that the State of New Hampshire may not require appellees to display the State mottoupon their vehicle license plates.” Wooley v. Maynard, 430 U.S. 705, 717 (1977).

[13] “We have acknowledged that drivers who display a State's selected license plate designs convey the messages communicated through those designs.” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___,17-18 (2015).

[14] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 20 (2015).

[15] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 32 (2015).

[16] “A final factor that was important in Summum was space. A park can accommodate only so many permanent monuments.” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S.__ , 31 (2015).

[17] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 31 (2015).

[18]  “If the State can do this with its little mobile billboards, could it do the same with big, stationary billboards?”  Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 21 (2015).

[19]  “The Court says that all of these messages are government speech. It is essential that government be able to express its own viewpoint, the Court reminds us, because otherwise, how would it promote its programs, like recycling and vaccinations?” Id. at 20.

[20] Scott W. Gaylord, “Kill the Sea Turtles” and Other Things You Can't Make the Government Say”, 71 Wash. & Lee L. Rev. 93, 104-23 (2014).