The Texas Division, Sons of Confederate Veterans proposed a specialty license plate design featuring a Confederate battle flag. The Texas Department of Motor Vehicles Board, however, rejected the proposal.
When government speaks, the Free Speech Clause does not bar the government from determining the content of what is speaks.
Those who reside in Texas may choose between ordinary and specialty license plates for their vehicles. If anyone wishes to have the latter, he may propose a plate design, comprising a slogan, a graphic or both. The Texas law grants the Texas Department of Motor Vehicles Board authority to approve or reject an application. The relevant statute provides that the Board “may refuse to create a new specialty license plate for many reasons” including a perceived offensiveness of the design to the public. The Sons of Confederate Veterans wanted a Confederate battle flag appeared on its plate, but the Board rejected, because public comments, which they considered reasonable, had shown that many members of the general public find the design offensive.
Does the Texas Department of Motor Vehicles Board’s rejection of the proposal to put a Confederate battle flag on a license plate violate the Free Speech Clause?
No. The specialty licence plates issued pursuant to Texas’ statutory scheme convey government speech and thus, the Board’s rejection of the proposal does not violate the First Amendment’s free speech guarantees.
While all license plates contain “some” government speech, the State of Texas has converted the remaining space on specialty plates into little billboards on which vehicle owners can display their own messages. It is absurd to say that a pedestrian watching plates containing the name of certain universities, food franchises, or specific beverages would think that the expressions in those plates are the views of the State, and not those of the motorists.
Moreover, the Board’s rejection cannot be justified by its reasoning that the Confederate battle flag “could distract or disturb some drivers.” Such rationale cannot withstand strict scrutiny. Other States permit specialty plates containing Confederate battle flag and Texas has not provided sufficient evidence that such plates have led to incidents of road rage or accidents.
The Court’s analysis and holding in Summum shall dictate this case. The history of license plates demonstrates that they have conveyed more than state names and vehicle identification numbers and also have long communicated messages from the state. Moreover, Texas license plate designs “are often closely identified in the public mind with the State.” Texas places the name “TEXAS” in large letters on every plate and requires every automobile owner to display it. Further, Texas has direct control over the messages delivered on its specialty plates. The Board has the final authority to approve and this allows the State to choose how to present itself and its constituency. These considerations show that the specialty plates resemble the monuments in Summum.