Walker v. Texas SCV License Plate Case: Key Free Speech Takeaways

This article discusses the Supreme Court case Walker v. Texas Division, Sons of Confederate Veterans, Incorporated, a free speech case concerning specialty license plates.

The Parties Involved

The lawsuit involves two main parties:

• John Walker: Chairman of the Texas Department of Motor Vehicles (DMV), sued in his official capacity as a state agent.
• Texas Division, Sons of Confederate Veterans (SCV): The plaintiff, a group whose stated purpose is to commemorate and preserve the reputation of Confederate soldiers from the American Civil War.

Background of the Case

Members of the SCV sought state approval for a vanity license plate design that included an image of the Confederate flag. In Texas, there are two types of specialty license plates:

1. Legislature-approved plates: Created and voted upon by the state legislature.
2. Individually designed plates: Created by individuals but require approval from the Department of Motor Vehicles.

The Texas Transportation Code allows the DMV board to refuse a new specialty license plate design if it might be offensive to a member of the public. The SCV's proposed design, featuring the Confederate flag, was rejected by the DMV board after a public hearing. The primary reason for rejection was the association of the Confederate flag with hatred towards certain groups, making the plate potentially offensive.

The Constitutional Law Issue: Free Speech

This case is a constitutional law matter because it involves free speech under the First Amendment. While the First Amendment initially protected against federal laws abridging free speech, the Fourteenth Amendment has incorporated these protections, making them applicable to state actions as well. However, the First Amendment is not an absolute ban on speech restrictions.

Key Issues for the Supreme Court

The Supreme Court will primarily consider two issues:

1. Government Speech vs. Private Speech

The court must first determine whether messages displayed on specialty license plates constitute government speech or private speech. This distinction is crucial because different standards for speech regulation apply depending on the category.

• If it's government speech: State officials have broad discretion to decide which messages to allow or forbid, as the government is considered the speaker.
• If it's private speech: The government's power to control the message is more restricted.

Texas's Arguments for Government Speech

The state of Texas presents three main rationales:

1. Government Program: Texas argues that vanity license plates fall within a government program for issuing specialty plates. Even if an individual designs the plate, the government's approval process makes it part of a government program, thus constituting government speech.
2. No Forced Endorsement: The state contends it should not be forced to endorse a private speaker's message and should be allowed to disassociate itself from messages it does not wish to promote (e.g., swastikas, overt racism). Texas argues that just as individuals cannot be forced to transmit a state's ideological message, the state should not be forced to convey a license plate holder's message.
3. Government Control and Perception: Texas asserts that it effectively controls and has final approval over the design. Furthermore, a specialty plate is reasonably perceived as conveying a message on the government's behalf, implying state approval. The state highlights that the SCV seeks a license plate precisely because it carries a state's seal of approval, unlike a bumper sticker.

SCV's Arguments for Private Speech

The Sons of Confederate Veterans argue that the plates represent private speech:

1. Two Types of Plates: SCV distinguishes between the two types of Texas specialty plates. They concede that legislature-approved plates (about 200 available) are government speech. However, the second category—plates designed by individuals, nonprofits, or businesses—where the DMV only approves or rejects, constitutes private speech because government officials have no role in creating the message content.
2. Distinguishable Precedents: SCV argues that Texas's reliance on cases like public monuments (which the Supreme Court has held to be government speech) is misplaced. They contend that a public monument is distinguishable from a license plate:
   • Permanence: Monuments are permanent, while license plates require annual renewal, allowing owners to remove messages.
   • Individual Association: A license plate's message is readily associated with a particular individual (the car owner), unlike a monument.
   • Driver's Choice: No speech occurs on a specialty plate until a driver decides to use it on a public road, meaning the decision to convey the message belongs to a private individual, not the government.

2. Viewpoint Discrimination (If Private Speech is Found)

If the court determines that license plates are private speech, it will then address whether the state government's speech regulation was permissible. This involves analyzing viewpoint discrimination.

• Basic Doctrine: When the government opens a forum for private citizens to speak, it cannot discriminate between speakers based on their viewpoints. Viewpoint discrimination violates free speech.

SCV's Argument for Viewpoint Discrimination

SCV will argue that Texas's specialty plate program created a forum for private speech. By rejecting the Confederate flag design, the state endorsed the viewpoint that the flag symbolizes racism, thereby discriminating against the competing viewpoint that the flag represents sacrifice, independence, and Southern heritage (SCV's view).

Texas's Response to Viewpoint Discrimination

Texas will claim its decision was viewpoint-neutral:

• No Negative Portrayal: The state has not issued any specialty plate that negatively portrays the Confederacy, the Confederate flag, or SCV's views.
• Objective Offensiveness: Texas argues it merely objectively concluded that some members of the public might be offended by the Confederate flag, which is sufficient under Texas law to reject a design.
• Proof of Discrimination: Texas contends that SCV could only prove viewpoint discrimination if the state issued a plate expressing one viewpoint on the topic and then formally rejected a plate expressing a different view on the same topic.

SCV's Counterargument: Confederate Heroes Day

SCV might counter by pointing out that Texas observes "Confederate Heroes Day" on January 19th, suggesting the state has already expressed a view on the Confederacy. Rejecting the license plate, in this context, could be seen as implicitly endorsing an opposite viewpoint.

Texas's Rebuttal: Discretionary Criteria

Texas would likely respond that when it subsidizes or assists speech (rather than regulating or prohibiting it), it has more latitude to use discretionary criteria, such as a message's potential offensiveness to the public.

Potential Inconsistencies in Texas's Arguments

An interesting point of analysis is a potential inconsistency in Texas's arguments:

• Issue 1 (Government Speech): Texas argues it should be able to disassociate itself from certain viewpoints, implying disapproval of the message.
• Issue 2 (Viewpoint Neutrality): Texas claims it made no judgment to approve or disapprove the message, merely finding that some members of the public might be offended, thus remaining neutral.

This inconsistency might not be critical if the court rules in Texas's favor on the first issue, as the second issue would then become moot. Texas's approach could be seen as "arguing in the alternative," a common strategy in complex cases to cover all bases.

Concluding Questions

The case raises several thought-provoking questions:

• Is there a genuine inconsistency in Texas's arguments?
• Are SCV's arguments for private speech convincing?
• If it is truly about private speech, why do SCV members seek a state-issued license plate rather than simply using bumper stickers? The desire for a license plate suggests an implicit recognition of state endorsement.