Walker v. Tex. Div., Sons of Confederate Veterans, Inc.

• Citation: 135 S.Ct. 2239,576 U.S. 200,192 L.Ed.2d 274
• Decision Date: 18 June 2015
• Docket Number: No. 14–144.,14–144.
• Parties: John WALKER, III, Chairman, Texas Department of Motor Vehicles Board, et al., Petitioners v. TEXAS DIVISION, SONS OF CONFEDERATE VETERANS, INC., et al.
• Court: United States Supreme Court

576 U.S. 200

135 S.Ct. 2239

192 L.Ed.2d 274

John WALKER, III, Chairman, Texas Department of Motor Vehicles Board, et al., Petitioners

v.TEXAS DIVISION, SONS OF CONFEDERATE VETERANS, INC., et al.

No. 14–144.

Supreme Court of the United States

Argued March 23, 2015.

Decided June 18, 2015.

Scott A. Keller, Solicitor General, for petitioners.

R. James George, Jr., for respondents.

Ken Paxton, Attorney General of Texas, Charles E. Roy, First Assistant Attorney General, Austin, TX, Scott A. Keller, Solicitor General, Counsel of Record, J. Campbell Barker, Deputy Solicitor General, Bill Davis, Evan S. Greene, Alex Potapov, Assistant Solicitors General, Erika M. Kane, Assistant Attorney General, for Petitioner.

R. James George, Jr., Counsel of Record, John R. McConnell, George Brothers Kincaid & Horton, LLP, Austin, TX, for Respondents.

Greg Abbott, Attorney General of Texas, Daniel T. Hodge, First Assistant Attorney General, Austin, TX, Jonathan F. Mitchell, Solicitor General, Counsel of Record, Bill Davis, Arthur C. D'Andrea, Evan S. Greene, Alex Potapov, Assistant Solicitors General, Erika M. Kane, Assistant Attorney General, for Petitioners.

Justice BREYER delivered the opinion of the Court.

Texas offers automobile owners a choice between ordinary and specialty license plates. Those who want the State to issue a particular specialty plate may propose a plate design, comprising a slogan, a graphic, or (most commonly) both. If the Texas Department of Motor Vehicles Board approves the design, the State will make it available for display on vehicles registered in Texas.

In this case, the Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a Confederate battle flag. The Board rejected the proposal. We must decide whether that rejection violated the Constitution's free speech guarantees. See Amdts. 1, 14. We conclude that it did not.

I

A

Texas law requires all motor vehicles operating on the State's roads to display valid license plates. See Tex. Transp. Code Ann. §§ 502.001 (West Supp. 2014), 504.001 (2013), 504.943 (Supp. 2014). And Texas makes available several kinds of plates. Drivers may choose to display the State's general-issue license plates. See Texas Dept. of Motor Vehicles, Motor Vehicle Registration Manual 9.1 (Apr. 2015). Each of these plates contains the word "Texas," a license plate number, a silhouette of the State, a graphic of the Lone Star, and the slogan "The Lone Star State." Texas Dept. of Motor Vehicles, The Texas Classic FAQs (July 16, 2012), online at http://www.txdmv. gov/motorists/license-plates (all Internet materials as visited June 16, 2015, and available in Clerk of Court's case file). In the alternative, drivers may choose from an assortment of specialty license plates. § 504.008(b) (West 2013). Each of these plates contains the word "Texas," a license plate number, and one of a selection of designs prepared by the State. See ibid. ; Specialty License Plates, http://www.txdmv.gov/motorists/license-plates/specialty-license-plates (displaying available Texas specialty plates); Create a Plate: Your Design, http://www.myplates.com/BackgroundOnly (same). Finally, Texas law provides for personalized plates (also known as vanity plates). 43 Tex. Admin. Code § 217.45(c)(7) (2015). Pursuant to the personalization program, a vehicle owner may request a particular alphanumeric pattern for use as a plate number, such as "BOB" or "TEXPL8."

Here we are concerned only with the second category of plates, namely specialty license plates, not with the personalization program. Texas offers vehicle owners a variety of specialty plates, generally for an annual fee. See § 217.45(b)(2). And Texas selects the designs for specialty plates through three distinct processes.

First, the state legislature may specifically call for the development of a specialty license plate. See Tex. Transp. Code §§ 504.602 – 504.663 (West 2013 and Supp. 2014). The legislature has enacted statutes authorizing, for example, plates that say "Keep Texas Beautiful" and "Mothers Against Drunk Driving," plates that "honor" the Texas citrus industry, and plates that feature an image of the World Trade Center towers and the words "Fight Terrorism." See §§ 504.602, 504.608, 504.626, 504.647.

Second, the Board may approve a specialty plate design proposal that a state-designated private vendor has created at the request of an individual or organization. See §§ 504.6011(a), 504.851(a); 43 Tex. Admin. Code § 217.52(b). Among the plates created through the private-vendor process are plates promoting the "Keller Indians" and plates with the slogan "Get it Sold with RE/MAX."

Third, the Board "may create new specialty license plates on its own initiative or on receipt of an application from a" nonprofit entity seeking to sponsor a specialty plate. Tex. Transp. Code Ann. §§ 504.801(a), (b). A nonprofit must include in its application "a draft design of the specialty license plate." 43 Tex. Admin. Code § 217.45(i)(2)(C). And Texas law vests in the Board authority to approve or to disapprove an application. See § 217.45(i)(7). The relevant statute says that the Board "may refuse to create a new specialty license plate" for a number of reasons, for example "if the design might be offensive to any member of the public ... or for any other reason established by rule." Tex. Transp. Code Ann. § 504.801(c). Specialty plates that the Board has sanctioned through this process include plates featuring the words "The Gator Nation," together with the Florida Gators logo, and plates featuring the logo of Rotary International and the words "SERVICE ABOVE SELF."

B

In 2009, the Sons of Confederate Veterans, Texas Division (a nonprofit entity), applied to sponsor a specialty license plate through this last-mentioned process. SCV's application included a draft plate design. See Appendix, infra . At the bottom of the proposed plate were the words "SONS OF CONFEDERATE VETERANS." At the side was the organization's logo, a square Confederate battle flag framed by the words "Sons of Confederate Veterans 1896." A faint Confederate battle flag appeared in the background on the lower portion of the plate. Additionally, in the middle of the plate was the license plate number, and at the top was the State's name and silhouette. The Board's predecessor denied this application.

In 2010, SCV renewed its application before the Board. The Board invited public comment on its website and at an open meeting. After considering the responses, including a number of letters sent by elected officials who opposed the proposal, the Board voted unanimously against issuing the plate. The Board explained that it had found "it necessary to deny th[e] plate design application, specifically the confederate flag portion of the design, because public comments ha[d] shown that many members of the general public find the design offensive, and because such comments are reasonable." App. 64. The Board added "that a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups." Id., at 65.

In 2012, SCV and two of its officers (collectively SCV) brought this lawsuit against the chairman and members of the Board (collectively Board). SCV argued that the Board's decision violated the Free Speech Clause of the First Amendment, and it sought an injunction requiring the Board to approve the proposed plate design. The District Court entered judgment for the Board. A divided panel of the Court of Appeals for the Fifth Circuit reversed. Texas Div., Sons of Confederate Veterans, Inc. v. Vandergriff,

759 F.3d 388 (2014). It held that Texas's specialty license plate designs are private speech and that the Board, in refusing to approve SCV's design, engaged in constitutionally forbidden viewpoint discrimination. The dissenting judge argued that Texas's specialty license plate designs are government speech, the content of which the State is free to control.

We granted the Board's petition for certiorari, and we now reverse.

II

When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Pleasant Grove City v. Summum, 555 U.S. 460, 467–468, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 235, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000). Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. See Johanns v. Livestock Marketing Assn., 544 U.S. 550, 559, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005). Instead, the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect its electoral mandate. See Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (observing that "our constitutional system" seeks to maintain "the opportunity for free political discussion to the end that government may be responsive to the will of the people").

Were the Free Speech Clause interpreted otherwise, government would not work. How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations

, if officials also had to voice the perspective of those who oppose this type of immunization? "[I]t is not easy to imagine how government could function if it lacked th[e] freed...