April 7, 2015
Private: The First Amendment and a Confederacy of License Plates
by Mark S. Kende, James Madison Chair Professor of Law and Director of the Drake University Constitutional Law Center, and Bryan Ingram, Notes Editor of the Drake Law Review
In 2009, the Texas Department of Motor Vehicles Board (DMVB) rejected a controversial license plate design proposed by the Sons of Confederate Veterans (SCV), a Texas non-profit group. The plate features a confederate battle flag surrounded by the words “Sons of Confederate Veterans 1896,” a faint confederate flag design in the background, an outline of the state in the upper-right-hand corner, the words “Texas” at the top of the plate, and the words “Sons of Confederate Veterans” at the bottom.
The DMVB’s action triggered a First Amendment battle between the state and the SCV, which is presently before the Supreme Court. After the recent oral arguments, many believe the issue will hinge on whether the design constitutes government or private speech. The question of whether such a plate contains racist hate speech is also relevant. Most foreign nations ban racist hate speech. The U.S. Supreme Court, however, has said racist hate speech is protected. Some have called this American free speech exceptionalism, but the SCV says they are just committed to preserving the history and legacy of confederate veterans.
Under Texas law, Texas non-profit groups can submit license plate designs to the DMVB for approval. The DMVB then votes to approve proposed plate designs and upon approval, the public can purchase the designs. Currently, there are over 350 specialty license plate designs approved in the state.
An open comment period on the design revealed a predictable divide in public opinion. Many argued that the confederate-flag-based design represented an offensive symbol of hatred and racism. Others felt the design honored confederate soldiers, history and southern heritage. After the comment period ended, the DMVB struck down the design in a 5-4 decision stating, “[Reasonable] public comments have shown that many members of the general public find the design offensive.”
In response, SCV brought suit and the district held that the rejection of SCV’s design was a reasonable restriction. The U.S. Court of Appeals for the Fifth Circuit disagreed. The majority held that “The Board engaged in impermissible viewpoint discrimination and violated Texas SCV’s rights under the First Amendment . . . . Given Texas’s history of approving veterans plates and the reasons the Board offered for rejecting Texas SCV’s plate, it appears that the only reason the Board rejected the plate is the viewpoint it represents.”
Prior to determining that the State engaged in viewpoint discrimination, the Fifth Circuit also adopted the “reasonable-observer” standard articulated in Justice Souter’s Summum concurrence, where instead of adopting a per se rule to determine government speech, Justice Souter proposed the following test, which the Fifth Circuit subsequently adopted: “whether a reasonable and fully informed observer would understand the expression to be government speech.” Based on the new standard, the Fifth Circuit held that a private license plate design is private speech because a reasonable observer would identify the design as a message from the driver, not the government.
On appeal, the state primarily argues that the license plate design is a form of government speech and therefore receives no First Amendment protection. The state’s brief relies on the language in Summum where the Court held that a public park statue funded by private parties is a form of government speech because the government “effectively controls” the message. Like the statue in Summum, the government created the license plate program and controls final approval of the message. The petitioners also contend that the State did not create a public forum because the DMVB must approve the design and charge a fee. Therefore, according to the state of Texas, the design is government speech.
SCV counters by suggesting the “control” factor is not dispositive, and other factors – such as the transient nature of the speech and whether the public identifies the speech as conveying a government message – outweigh the control factor. Specifically, SCV argues that unlike the statue in Summum, the public interprets license plates as the driver’s speech, and even though the government has final approval over the design, the driver ultimately approves the speech by installing the plate and choosing to make the plate visible in public places. In support, SCV cites a handful of circuit cases identifying specialty plates and government-endorsed messages as forms of private speech.
The purpose of a public forum is the free exchange of ideas, and restrictions on private speech consequently receive rigorous judicial scrutiny. While the rear end of a car is not a public forum in the traditional sense, such a location contains the characteristics of a modern forum for public discourse by exchanging private messages.
Drivers often display political and social viewpoints on cars in the form of vanity plates, bumper stickers and political support ads. All of these mediums communicate controversial messages with every passing car and pedestrian. Similarly, every passing driver can respond or have his or her own message. This is akin to the stereotypical public forum where a citizen dispenses leaflets on a street corner to promote political or social viewpoints. Both environments promote the exchange of ideas, are facilitated by the government, involve private messages and are protected from censorship by the First Amendment.
But the Court will be breaking new ground if it declares a license plate to be a kind of public forum, especially since this is an object that the government mandates for vehicles and that is usually used by the government for record keeping and registration purposes.
The Court faces a tough decision. Based on the oral argument, the Court appears to be leaning against Texas, and this is probably the right result for the reasons mentioned. But if the Court rules against Texas, and Texas still does not want controversial designs on public license plates, it would likely have to end the program because of the First Amendment. Ironically, this would reduce the overall amount of speech.