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

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WALKER, CHAIRMAN, TEXAS DEPARTMENT OF
MOTOR VEHICLES BOARD, ET AL. v. TEXAS
DIVISION, SONS OF CONFEDERATE VETERANS,
INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 14–144. Argued March 23, 2015—Decided June 18, 2015
Texas offers automobile owners a choice between general-issue and
specialty license plates. Those who want the State to issue a particu-
lar specialty plate may propose a plate design, comprising a slogan, a
graphic, or 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. Here, the Texas Division of the Sons of
Confederate Veterans and its officers (collectively SCV) filed suit
against the Chairman and members of the Board (collectively Board),
arguing that the Board’s rejection of SCV’s proposal for a specialty
plate design featuring a Confederate battle flag violated the Free
Speech Clause. The District Court entered judgment for the Board,
but the Fifth Circuit reversed, holding that Texas’s specialty license
plate designs are private speech and that the Board engaged in con-
stitutionally forbidden viewpoint discrimination when it refused to
approve SCV’s design.
Held: Texas’s specialty license plate designs constitute government
speech, and thus Texas was entitled to refuse to issue plates featur-
ing SCV’s proposed design. Pp. 5–18.
(a) 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. A government is generally
entitled to promote a program, espouse a policy, or take a position.
Were the Free Speech Clause interpreted otherwise, “it is not easy to
imagine how government would function.” Id., at 468. That is not to
2 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
Syllabus
say that a government’s ability to express itself is without restriction.
Constitutional and statutory provisions outside of the Free Speech
Clause may limit government speech, and the Free Speech Clause it-
self may constrain the government’s speech if, for example, the gov-
ernment seeks to compel private persons to convey the government’s
speech. Pp. 5–6.
(b) This Court’s precedents regarding government speech provide
the appropriate framework through which to approach the case.
Pp. 6–17.
(1) The same analysis the Court used in Summum—to conclude
that a city “accepting a privately donated monument and placing it
on city property” was engaging in government speech, 555 U.S., at
464—leads to the conclusion that government speech is at issue here.
First, history shows that States, including Texas, have long used li-
cense plates to convey government speech, e.g., slogans urging action,
promoting tourism, and touting local industries. Cf. id., at 470. Se-
cond, Texas license plate designs “are often closely identified in the
public mind with the [State].” Id., at 472. Each plate is a govern-
ment article serving the governmental purposes of vehicle registra-
tion and identification. The governmental nature of the plates is
clear from their faces: the State places the name “TEXAS” in large
letters across the top of every plate. Texas also requires Texas vehi-
cle owners to display license plates, issues every Texas plate, and
owns all of the designs on its plates. The plates are, essentially, gov-
ernment IDs, and ID issuers “typically do not permit” their IDs to
contain “message[s] with which they do not wish to be associated,”
id., at 471. Third, Texas maintains direct control over the messages
conveyed on its specialty plates, by giving the Board final approval
over each design. Like the city government in Summum, Texas “has
effectively controlled the messages [conveyed] by exercising final ap-
proval authority over their selection.” Id., at 473. These considera-
tions, taken together, show that Texas’s specialty plates are similar
enough to the monuments in Summum to call for the same result.
Pp. 7–12.
(2) Forum analysis, which applies to government restrictions on
purely private speech occurring on government property, Cornelius v.
NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800, is not
appropriate when the State is speaking on its own behalf. The par-
ties agree that Texas’s specialty license plates are not a traditional
public forum. Further, Texas’s policies and the nature of its license
plates indicate that the State did not intend its specialty plates to
serve as either a designated public forum—where “government prop-
erty . . . not traditionally . . . a public forum is intentionally opened
Cite as: 576 U. S. ____ (2015) 3
Syllabus
up for that purpose,” Summum, supra, at 469—or a limited public fo-
rum—where a government “reserv[es a forum] for certain groups or
for the discussion of certain topics,” Rosenberger v. Rector and Visi-
tors of Univ. of Va., 515 U.S. 819, 829. The State exercises final au-
thority over the messages that may be conveyed by its specialty
plates, it takes ownership of each specialty plate design, and it has
traditionally used its plates for government speech. These features of
Texas specialty plates militate against a determination that Texas
has created a public forum. Finally, the plates are not a nonpublic
forum, where the “government is . . . a proprietor, managing its in-
ternal operations.” International Soc. for Krishna Consciousness, Inc.
v. Lee, 505 U.S. 672, 678–679. The fact that private parties take
part in the design and propagation of a message does not extinguish
the governmental nature of the message or transform the govern-
ment’s role into that of a mere forum provider. See Summum, supra,
at 470–471. Nor does Texas’s requirement that vehicle owners pay
annual fees for specialty plates mean that the plates are a forum for
private speech. And this case does not resemble other nonpublic fo-
rum cases. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S.
37, 48–49; Lehman v. Shaker Heights, 418 U.S. 298; and Cornelius,
supra, at 804–806, distinguished. Pp. 13–17.
(c) The determination that Texas’s specialty license plate designs
are government speech does not mean that the designs do not also
implicate the free speech rights of private persons. The Court has
acknowledged that drivers who display a State’s selected license
plate designs convey the messages communicated through those de-
signs. See Wooley v. Maynard, 430 U.S. 705, 717, n. 15. The Court
has also recognized that the First Amendment stringently limits a
State’s authority to compel a private party to express a view with
which the private party disagrees. Just as Texas cannot require SCV
to convey “the State’s ideological message,” id., at 715, SCV cannot
force Texas to include a Confederate battle flag on its specialty li-
cense plates. Pp. 17–18.
759 F.3d 388, reversed.
BREYER, J., delivered the opinion of the Court, in which THOMAS,
GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dis-
senting opinion, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ.,
joined.
Cite as: 576 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–144
_________________
JOHN WALKER, III, CHAIRMAN, TEXAS DEPARTMENT
OF MOTOR VEHICLES BOARD, ET AL., PETITIONERS
v. TEXAS DIVISION, SONS OF CONFEDERATE
VETERANS, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2015]
JUSTICE BREYER delivered the opinion of the Court.
Texas offers automobile owners a choice between ordi-
nary 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 Vehi-
cles 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 Confeder-
ate 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
2 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
Opinion of the Court
(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 Inter-
net 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 selec-
tion 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 vehi-
cle 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 per-
sonalization program. Texas offers vehicle owners a va-
riety 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
Cite as: 576 U. S. ____ (2015) 3
Opinion of the Court
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 Terror-
ism.” 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 non-
profit 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 author-
ity 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 sanc-
tioned through this process include plates featuring the
words “The Gator Nation,” together with the Florida
Gators logo, and plates featuring the logo of Rotary Inter-
national and the words “SERVICE ABOVE SELF.”
B
In 2009, the Sons of Confederate Veterans, Texas Divi-
sion (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
4 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
Opinion of the Court
“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 back-
ground 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, includ-
ing a number of letters sent by elected officials who op-
posed 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, specif-
ically 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 con-
federate 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 re-
versed. 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
Cite as: 576 U. S. ____ (2015) 5
Opinion of the Court
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 (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 (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
(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 man-
date. See Stromberg v. California, 283 U.S. 359, 369
(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 pro-
grams designed to encourage and provide vaccinations, if
6 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
Opinion of the Court
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]
freedom” to select the messages it wishes to convey.
Summum, supra, at 468.
We have therefore refused “[t]o hold that the Govern-
ment 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.” Rust v. Sullivan, 500 U.S. 173, 194 (1991). We
have pointed out that a contrary holding “would render
numerous Government programs constitutionally sus-
pect.” Ibid. Cf. Keller v. State Bar of Cal., 496 U.S. 1, 12–
13 (1990) (“If every citizen were to have a right to insist
that no one paid by public funds express a view with
which he disagreed, debate over issues of great concern to
the public would be limited to those in the private sector,
and the process of government as we know it radically
transformed”). And we have made clear that “the govern-
ment can speak for itself.” Southworth, supra, at 229.
That is not to say that a government’s ability to express
itself is without restriction. Constitutional and statutory
provisions outside of the Free Speech Clause may limit
government speech. Summum, supra, at 468. And the
Free Speech Clause itself may constrain the government’s
speech if, for example, the government seeks to compel
private persons to convey the government’s speech. But,
as a general matter, when the government speaks it is
entitled to promote a program, to espouse a policy, or to
take a position. In doing so, it represents its citizens and
it carries out its duties on their behalf.
III
In our view, specialty license plates issued pursuant to
Texas’s statutory scheme convey government speech. Our
Cite as: 576 U. S. ____ (2015) 7
Opinion of the Court
reasoning rests primarily on our analysis in Summum, a
recent case that presented a similar problem. We con-
clude here, as we did there, that our precedents regarding
government speech (and not our precedents regarding
forums for private speech) provide the appropriate frame-
work through which to approach the case. See 555 U.S.,
at 464.
A
In Summum, we considered a religious organization’s
request to erect in a 2.5-acre city park a monument setting
forth the organization’s religious tenets. See id., at 464–
465. In the park were 15 other permanent displays. Id.,
at 464. At least 11 of these—including a wishing well, a
September 11 monument, a historic granary, the city’s
first fire station, and a Ten Commandments monument—
had been donated to the city by private entities. Id., at
464–465. The religious organization argued that the Free
Speech Clause required the city to display the organiza-
tion’s proposed monument because, by accepting a broad
range of permanent exhibitions at the park, the city had
created a forum for private speech in the form of monu-
ments. Brief for Respondent in Pleasant Grove City v.
Summum, O. T. 2008, No. 07–665, pp. 2–3, 30–36.
This Court rejected the organization’s argument. We
held that the city had not “provid[ed] a forum for private
speech” with respect to monuments. Summum, 555 U.S.,
at 470. Rather, the city, even when “accepting a privately
donated monument and placing it on city property,” had
“engage[d] in expressive conduct.” Id., at 476. The speech
at issue, this Court decided, was “best viewed as a form of
government speech” and “therefore [was] not subject to
scrutiny under the Free Speech Clause.” Id., at 464.
We based our conclusion on several factors. First, his-
tory shows that “[g]overnments have long used monuments
to speak to the public.” Id., at 470. Thus, we observed
8 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
Opinion of the Court
that “[w]hen a government entity arranges for the con-
struction of a monument, it does so because it wishes to
convey some thought or instill some feeling in those who
see the structure.” Ibid.
Second, we noted that it “is not common for property
owners to open up their property for the installation of
permanent monuments that convey a message with which
they do not wish to be associated.” Id., at 471. As a re-
sult, “persons who observe donated monuments routine-
ly—and reasonably—interpret them as conveying some
message on the property owner’s behalf.” Ibid. And “ob-
servers” of such monuments, as a consequence, ordinarily
“appreciate the identity of the speaker.” Ibid.
Third, we found relevant the fact that the city main-
tained control over the selection of monuments. We
thought it “fair to say that throughout our Nation’s his-
tory, the general government practice with respect to do-
nated monuments has been one of selective receptivity.”
Ibid. And we observed that the city government in Sum-
mum “ ‘effectively controlled’ the messages sent by the
monuments in the [p]ark by exercising ‘final approval
authority’ over their selection.” Id., at 473.
In light of these and a few other relevant considerations,
the Court concluded that the expression at issue was
government speech. See id., at 470–472. And, in reaching
that conclusion, the Court rejected the premise that the
involvement of private parties in designing the monu-
ments was sufficient to prevent the government from
controlling which monuments it placed in its own public
park. See id., at 470–471. Cf. Rust, supra, at 192–196
(upholding a federal regulation limiting speech in a
Government-funded program where the program was
established and administered by private parties).
B
Our analysis in Summum leads us to the conclusion
Cite as: 576 U. S. ____ (2015) 9
Opinion of the Court
that here, too, government speech is at issue. First, the
history of license plates shows that, insofar as license
plates have conveyed more than state names and vehicle
identification numbers, they long have communicated
messages from the States. Cf. 555 U.S., at 470 (“Govern-
ments have long used monuments to speak to the public”).
In 1917, Arizona became the first State to display a graphic
on its plates. J. Fox, License Plates of the United States
15 (1997) (Fox); J. Minard & T. Stentiford, A Moving
History 56 (2004) (Minard). The State presented a depic-
tion of the head of a Hereford steer. Fox 15; Minard 56.
In the years since, New Hampshire plates have featured
the profile of the “Old Man of the Mountain,” Massachu-
setts plates have included a representation of the Com-
monwealth’s famous codfish, and Wyoming plates have
displayed a rider atop a bucking bronco. Minard 60, 61,
66.
In 1928, Idaho became the first State to include a slogan
on its plates. The 1928 Idaho plate proclaimed “Idaho
Potatoes” and featured an illustration of a brown potato,
onto which the license plate number was superimposed in
green. Id., at 61. The brown potato did not catch on, but
slogans on license plates did. Over the years, state plates
have included the phrases “North to the Future” (Alaska),
“Keep Florida Green” (Florida), “Hoosier Hospitality”
(Indiana), “The Iodine Products State” (South Carolina),
“Green Mountains” (Vermont), and “America’s Dairyland”
(Wisconsin). Fox 13, 29, 39, 91, 101, 109. States have
used license plate slogans to urge action, to promote tour-
ism, and to tout local industries.
Texas, too, has selected various messages to communi-
cate through its license plate designs. By 1919, Texas had
begun to display the Lone Star emblem on its plates.
Texas Department of Transportation, The History of
Texas License Plates 9, 11 (1999). In 1936, the State’s
general-issue plates featured the first slogan on Texas
10 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
Opinion of the Court
license plates: the word “Centennial.” Id., at 20. In 1968,
Texas plates promoted a San Antonio event by including
the phrase “Hemisfair 68.” Id., at 46. In 1977, Texas
replaced the Lone Star with a small silhouette of the
State. Id., at 63. And in 1995, Texas plates celebrated
“150 Years of Statehood.” Id., at 101. Additionally, the
Texas Legislature has specifically authorized specialty
plate designs stating, among other things, “Read to Suc-
ceed,” “Houston Livestock Show and Rodeo,” “Texans
Conquer Cancer,” and “Girl Scouts.” Tex. Transp. Code
Ann. §§504.607, 504.613, 504.620, 504.622. This kind of
state speech has appeared on Texas plates for decades.
Second, Texas license plate designs “are often closely
identified in the public mind with the [State].” Summum,
supra, at 472. Each Texas license plate is a government
article serving the governmental purposes of vehicle regis-
tration and identification. The governmental nature of the
plates is clear from their faces: The State places the name
“TEXAS” in large letters at the top of every plate. More-
over, the State requires Texas vehicle owners to display
license plates, and every Texas license plate is issued by
the State. See §504.943. Texas also owns the designs on
its license plates, including the designs that Texas adopts
on the basis of proposals made by private individuals and
organizations. See §504.002(3). And Texas dictates the
manner in which drivers may dispose of unused plates.
See §504.901(c). See also §504.008(g) (requiring that
vehicle owners return unused specialty plates to the
State).
Texas license plates are, essentially, government IDs.
And issuers of ID “typically do not permit” the placement
on their IDs of “message[s] with which they do not wish to
be associated.” Summum, 555 U.S., at 471. Consequently,
“persons who observe” designs on IDs “routinely—and
reasonably—interpret them as conveying some message
on the [issuer’s] behalf.” Ibid.
Cite as: 576 U. S. ____ (2015) 11
Opinion of the Court
Indeed, a person who displays a message on a Texas
license plate likely intends to convey to the public that the
State has endorsed that message. If not, the individual
could simply display the message in question in larger
letters on a bumper sticker right next to the plate. But
the individual prefers a license plate design to the purely
private speech expressed through bumper stickers. That
may well be because Texas’s license plate designs convey
government agreement with the message displayed.
Third, Texas maintains direct control over the messages
conveyed on its specialty plates. Texas law provides that
the State “has sole control over the design, typeface, color,
and alphanumeric pattern for all license plates.”
§504.005. The Board must approve every specialty plate
design proposal before the design can appear on a Texas
plate. 43 Tex. Admin. Code §§217.45(i)(7)–(8), 217.52(b).
And the Board and its predecessor have actively exercised
this authority. Texas asserts, and SCV concedes, that the
State has rejected at least a dozen proposed designs.
Reply Brief 10; Tr. of Oral Arg. 49–51. Accordingly, like
the city government in Summum, Texas “has ‘effectively
controlled’ the messages [conveyed] by exercising ‘final
approval authority’ over their selection.” 555 U.S., at 473
(quoting Johanns, 544 U.S., at 560–561).
This final approval authority allows Texas to choose
how to present itself and its constituency. Thus, Texas
offers plates celebrating the many educational institutions
attended by its citizens. See Tex. Transp. Code Ann.
§504.615. But it need not issue plates deriding schooling.
Texas offers plates that pay tribute to the Texas citrus
industry. See §504.626. But it need not issue plates
praising Florida’s oranges as far better. And Texas offers
plates that say “Fight Terrorism.” See §504.647. But it
need not issue plates promoting al Qaeda.
These considerations, taken together, convince us that
the specialty plates here in question are similar enough to
12 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
Opinion of the Court
the monuments in Summum to call for the same result.
That is not to say that every element of our discussion in
Summum is relevant here. For instance, in Summum we
emphasized that monuments were “permanent” and we
observed that “public parks can accommodate only a lim-
ited number of permanent monuments.” 555 U.S., at 464,
470, 478. We believed that the speech at issue was gov-
ernment speech rather than private speech in part be-
cause we found it “hard to imagine how a public park
could be opened up for the installation of permanent mon-
uments by every person or group wishing to engage in that
form of expression.” Id., at 479. Here, a State could theo-
retically offer a much larger number of license plate de-
signs, and those designs need not be available for time
immemorial.
But those characteristics of the speech at issue in Sum-
mum were particularly important because the government
speech at issue occurred in public parks, which are tradi-
tional public forums for “the delivery of speeches and the
holding of marches and demonstrations” by private citi-
zens. Id., at 478. By contrast, license plates are not tradi-
tional public forums for private speech.
And other features of the designs on Texas’s specialty
license plates indicate that the message conveyed by those
designs is conveyed on behalf of the government. Texas,
through its Board, selects each design featured on the
State’s specialty license plates. Texas presents these
designs on government-mandated, government-controlled,
and government-issued IDs that have traditionally been
used as a medium for government speech. And it places
the designs directly below the large letters identifying
“TEXAS” as the issuer of the IDs. “The [designs] that are
accepted, therefore, are meant to convey and have the
effect of conveying a government message, and they thus
constitute government speech.” Id., at 472.
 Cite as: 576 U. S. ____ (2015) 13
Opinion of the Court
C
SCV believes that Texas’s specialty license plate designs
are not government speech, at least with respect to the
designs (comprising slogans and graphics) that were ini-
tially proposed by private parties. According to SCV, the
State does not engage in expressive activity through such
slogans and graphics, but rather provides a forum for
private speech by making license plates available to dis-
play the private parties’ designs. We cannot agree.
We have previously used what we have called “forum
analysis” to evaluate government restrictions on purely
private speech that occurs on government property. Cor-
nelius v. NAACP Legal Defense & Ed. Fund, Inc., 473
U.S. 788, 800 (1985). But forum analysis is misplaced
here. Because the State is speaking on its own behalf, the
First Amendment strictures that attend the various types
of government-established forums do not apply.
The parties agree that Texas’s specialty license plates
are not a “traditional public forum,” such as a street or a
park, “which ha[s] immemorially been held in trust for the
use of the public and, time out of mind, ha[s] been used for
purposes of assembly, communicating thoughts between
citizens, and discussing public questions.” Perry Ed. Assn.
v. Perry Local Educators’ Assn., 460 U.S. 37, 45–46 (1983)
(internal quotation marks omitted). “The Court has re-
jected the view that traditional public forum status ex-
tends beyond its historic confines.” Arkansas Ed. Televi-
sion Comm’n v. Forbes, 523 U.S. 666, 678 (1998). And
state-issued specialty license plates lie far beyond those
confines.
It is equally clear that Texas’s specialty plates are nei-
ther a “ ‘designated public forum,’ ” which exists where
“government property that has not traditionally been
regarded as a public forum is intentionally opened up for
that purpose,” Summum, supra, at 469, nor a “limited
public forum,” which exists where a government has
14 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
Opinion of the Court
“reserv[ed a forum] for certain groups or for the discussion
of certain topics,” Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U.S. 819, 829 (1995). A government
“does not create a public forum by inaction or by permit-
ting limited discourse, but only by intentionally opening a
nontraditional forum for public discourse.” Cornelius, 473
U.S., at 802. And in order “to ascertain whether [a gov-
ernment] intended to designate a place not traditionally
open to assembly and debate as a public forum,” this Court
“has looked to the policy and practice of the government”
and to “the nature of the property and its compatibility
with expressive activity.” Ibid.
Texas’s policies and the nature of its license plates
indicate that the State did not intend its specialty license
plates to serve as either a designated public forum or a
limited public forum. First, the State exercises final au-
thority over each specialty license plate design. This
authority militates against a determination that Texas
has created a public forum. See id., at 803–804 (explain-
ing that a school mail system was not a public forum
because “[t]he practice was to require permission from the
individual school principal before access to the system to
communicate with teachers was granted”). Second, Texas
takes ownership of each specialty plate design, making it
particularly untenable that the State intended specialty
plates to serve as a forum for public discourse. Finally,
Texas license plates have traditionally been used for
government speech, are primarily used as a form of gov-
ernment ID, and bear the State’s name. These features of
Texas license plates indicate that Texas explicitly associ-
ates itself with the speech on its plates.
For similar reasons, we conclude that Texas’s specialty
license plates are not a “nonpublic for[um],” which exists
“[w]here the government is acting as a proprietor, manag-
ing its internal operations.” International Soc. for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678–679 (1992).
Cite as: 576 U. S. ____ (2015) 15
Opinion of the Court
With respect to specialty license plate designs, Texas is
not simply managing government property, but instead is
engaging in expressive conduct. As we have described, we
reach this conclusion based on the historical context,
observers’ reasonable interpretation of the messages
conveyed by Texas specialty plates, and the effective
control that the State exerts over the design selection
process. Texas’s specialty license plate designs “are meant
to convey and have the effect of conveying a government
message.” Summum, 555 U.S., at 472. They “constitute
government speech.” Ibid.
The fact that private parties take part in the design and
propagation of a message does not extinguish the govern-
mental nature of the message or transform the govern-
ment’s role into that of a mere forum-provider. In Sum-
mum, private entities “financed and donated monuments
that the government accept[ed] and display[ed] to the
public.” Id., at 470–471. Here, similarly, private parties
propose designs that Texas may accept and display on its
license plates. In this case, as in Summum, the “govern-
ment entity may exercise [its] freedom to express its
views” even “when it receives assistance from private
sources for the purpose of delivering a government-
controlled message.” Id., at 468. And in this case, as in
Summum, forum analysis is inapposite. See id., at 480.
Of course, Texas allows many more license plate designs
than the city in Summum allowed monuments. But our
holding in Summum was not dependent on the precise
number of monuments found within the park. Indeed, we
indicated that the permanent displays in New York City’s
Central Park also constitute government speech. See id.,
at 471–472. And an amicus brief had informed us that
there were, at the time, 52 such displays. See Brief for
City of New York in Pleasant Grove City v. Summum,
O. T. 2008, No. 07–665, p. 2. Further, there may well be
many more messages that Texas wishes to convey through
16 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
Opinion of the Court
its license plates than there were messages that the city in
Summum wished to convey through its monuments.
Texas’s desire to communicate numerous messages does
not mean that the messages conveyed are not Texas’s own.
Additionally, the fact that Texas vehicle owners pay
annual fees in order to display specialty license plates
does not imply that the plate designs are merely a forum
for private speech. While some nonpublic forums provide
governments the opportunity to profit from speech, see,
e.g., Lehman v. Shaker Heights, 418 U.S. 298, 299 (1974)
(plurality opinion), the existence of government profit
alone is insufficient to trigger forum analysis. Thus, if the
city in Summum had established a rule that organizations
wishing to donate monuments must also pay fees to assist
in park maintenance, we do not believe that the result in
that case would have been any different. Here, too, we
think it sufficiently clear that Texas is speaking through
its specialty license plate designs, such that the existence
of annual fees does not convince us that the specialty
plates are a nonpublic forum.
Finally, we note that this case does not resemble other
cases in which we have identified a nonpublic forum. This
case is not like Perry Ed. Assn., where we found a school
district’s internal mail system to be a nonpublic forum for
private speech. See 460 U.S., at 48–49. There, it was
undisputed that a number of private organizations, includ-
ing a teachers’ union, had access to the mail system. See
id., at 39–40. It was therefore clear that private parties,
and not only the government, used the system to com-
municate. Here, by contrast, each specialty license plate
design is formally approved by and stamped with the
imprimatur of Texas.
Nor is this case like Lehman, where we found the adver-
tising space on city buses to be a nonpublic forum. See
R. A. V. v. St. Paul, 505 U.S. 377, 390, n. 6 (1992) (identi-
fying Lehman as a case about a nonpublic forum). There,
Cite as: 576 U. S. ____ (2015) 17
Opinion of the Court
the messages were located in a context (advertising space)
that is traditionally available for private speech. And the
advertising space, in contrast to license plates, bore no
indicia that the speech was owned or conveyed by the
government.
Nor is this case like Cornelius, where we determined
that a charitable fundraising program directed at federal
employees constituted a nonpublic forum. See 473 U.S.,
at 804–806. That forum lacked the kind of history present
here. The fundraising drive had never been a medium for
government speech. Instead, it was established “to bring
order to [a] solicitation process” which had previously
consisted of ad hoc solicitation by individual charitable
organizations. Id., at 792, 805. The drive “was designed
to minimize . . . disruption to the [federal] workplace,” id.,
at 805, not to communicate messages from the govern-
ment. Further, the charitable solicitations did not appear
on a government ID under the government’s name. In
contrast to the instant case, there was no reason for em-
ployees to “interpret [the solicitation] as conveying some
message on the [government’s] behalf.” Summum, 555
U.S., at 471.
IV
Our determination that Texas’s specialty license plate
designs are government speech does not mean that the
designs do not also implicate the free speech rights of
private persons. We have acknowledged that drivers who
display a State’s selected license plate designs convey the
messages communicated through those designs. See
Wooley v. Maynard, 430 U.S. 705, 717, n. 15, 715 (1977)
(observing that a vehicle “is readily associated with its
operator” and that drivers displaying license plates “use
their private property as a ‘mobile billboard’ for the State’s
ideological message”). And we have recognized that the
First Amendment stringently limits a State’s authority to
18 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
Opinion of the Court
compel a private party to express a view with which the
private party disagrees. See id., at 715; Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U.S. 557, 573 (1995); West Virginia Bd. of Ed. v.
Barnette, 319 U.S. 624, 642 (1943). But here, compelled
private speech is not at issue. And just as Texas cannot
require SCV to convey “the State’s ideological message,”
Wooley, supra, at 715, SCV cannot force Texas to include a
Confederate battle flag on its specialty license plates.
* * *
For the reasons stated, we hold that Texas’s specialty
license plate designs constitute government speech and
that Texas was consequently entitled to refuse to issue
plates featuring SCV’s proposed design. Accordingly, the
judgment of the United States Court of Appeals for the
Fifth Circuit is
Reversed.
Cite as: 576 U. S. ____ (2015) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–144
_________________
JOHN WALKER, III, CHAIRMAN, TEXAS DEPARTMENT
OF MOTOR VEHICLES BOARD, ET AL., PETITIONERS
v. TEXAS DIVISION, SONS OF CONFEDERATE
VETERANS, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2015]
JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE
SCALIA, and JUSTICE KENNEDY join, dissenting.
The Court’s decision passes off private speech as gov-
ernment speech and, in doing so, establishes a precedent
that threatens private speech that government finds
displeasing. Under our First Amendment cases, the dis-
tinction between government speech and private speech is
critical. The First Amendment “does not regulate gov-
ernment speech,” and therefore when government speaks,
it is free “to select the views that it wants to express.”
Pleasant Grove City v. Summum, 555 U.S. 460, 467–468
(2009). By contrast, “[i]n the realm of private speech or
expression, government regulation may not favor one
speaker over another.” Rosenberger v. Rector and Visitors
of Univ. of Va., 515 U.S. 819, 828 (1995).
Unfortunately, the Court’s decision categorizes private
speech as government speech and thus strips it of all First
Amendment protection. The Court holds that all the
privately created messages on the many specialty plates
issued by the State of Texas convey a government message
rather than the message of the motorist displaying the
plate. Can this possibly be correct?
Here is a test. Suppose you sat by the side of a Texas
2 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
ALITO, J., dissenting
highway and studied the license plates on the vehicles
passing by. You would see, in addition to the standard
Texas plates, an impressive array of specialty plates.
(There are now more than 350 varieties.) You would likely
observe plates that honor numerous colleges and universi-
ties. You might see plates bearing the name of a high
school, a fraternity or sorority, the Masons, the Knights of
Columbus, the Daughters of the American Revolution, a
realty company, a favorite soft drink, a favorite burger
restaurant, and a favorite NASCAR driver.
As you sat there watching these plates speed by, would
you really think that the sentiments reflected in these
specialty plates are the views of the State of Texas and not
those of the owners of the cars? If a car with a plate that
says “Rather Be Golfing” passed by at 8:30 am on a Mon-
day morning, would you think: “This is the official policy
of the State—better to golf than to work?” If you did your
viewing at the start of the college football season and you
saw Texas plates with the names of the University of
Texas’s out-of-state competitors in upcoming games—
Notre Dame, Oklahoma State, the University of Okla-
homa, Kansas State, Iowa State—would you assume that the
State of Texas was officially (and perhaps treasonously)
rooting for the Longhorns’ opponents? And when a car
zipped by with a plate that reads “NASCAR – 24 Jeff
Gordon,” would you think that Gordon (born in California,
raised in Indiana, resides in North Carolina)1 is the official
favorite of the State government?
The Court says that all of these messages are govern-
ment 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 recy-
cling and vaccinations? Ante, at 5–6. So when Texas
issues a “Rather Be Golfing” plate, but not a “Rather Be
——————
1 Elliot, Shifting Gears, Forbes Life, Oct. 2013, pp. 55, 57.
Cite as: 576 U. S. ____ (2015) 3
ALITO, J., dissenting
Playing Tennis” or “Rather Be Bowling” plate, it is fur-
thering a state policy to promote golf but not tennis or
bowling. And when Texas allows motorists to obtain a
Notre Dame license plate but not a University of South-
ern California plate, it is taking sides in that long-time
rivalry.
This capacious understanding of government speech
takes a large and painful bite out of the First Amendment.
Specialty plates may seem innocuous. They make motor-
ists happy, and they put money in a State’s coffers. But
the precedent this case sets is dangerous. While all li-
cense plates unquestionably contain some government
speech (e.g., the name of the State and the numbers and/or
letters identifying the vehicle), the State of Texas has
converted the remaining space on its specialty plates into
little mobile billboards on which motorists can display
their own messages. And what Texas did here was to
reject one of the messages that members of a private
group wanted to post on some of these little billboards be-
cause the State thought that many of its citizens would
find the message offensive. That is blatant viewpoint
discrimination.
If the State can do this with its little mobile billboards,
could it do the same with big, stationary billboards? Sup-
pose that a State erected electronic billboards along its
highways. Suppose that the State posted some govern-
ment messages on these billboards and then, to raise
money, allowed private entities and individuals to pur-
chase the right to post their own messages. And suppose
that the State allowed only those messages that it liked or
found not too controversial. Would that be constitutional?
What if a state college or university did the same thing
with a similar billboard or a campus bulletin board or
dorm list serve? What if it allowed private messages that
are consistent with prevailing views on campus but
banned those that disturbed some students or faculty?
4 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
ALITO, J., dissenting
Can there be any doubt that these examples of viewpoint
discrimination would violate the First Amendment? I
hope not, but the future uses of today’s precedent remain
to be seen.
I
A
Specialty plates like those involved in this case are a
recent development. License plates originated solely as a
means of identifying vehicles. In 1901, New York became
the first State to require automobiles to be licensed, but
rather than issue license plates itself, New York required
drivers to display their initials on their cars. J. Minard &
T. Stentiford, A Moving History 50 (2004). Two years
later, Massachusetts became the first State to issue li-
cense plates. The plates said “Mass. Automobile Register”
and displayed the vehicle’s registration number. Id., at
51. Plates of this type—featuring a registration number,
the name of the State, and sometimes the date—were the
standard for decades thereafter. See id., at 52–94; see also
generally, J. Fox, License Plates of the United States 10–
99 (1997).
Texas license plates initially followed this pattern.
When the first official state plate appeared in 1917, it
featured a number and the abbreviation “TEX.” Texas
Department of Transportation, The History of Texas
License Plates 9 (1999) (History). In 1925, the year of
issue was added, and the State began issuing plates that
identified certain vehicle types, e.g., “C-M” for commercial
trucks (1925), id., at 14–15; “FARM” for farm trucks
(1935), id., at 22; “Overwidth” (1949), id., at 32; “House
Trailer” (1951), id., at 36. In 1936, a special plate with the
word “CENTENNIAL” was created to mark the State’s
100th birthday, and the first plate identifying the owner
as a “State Official” appeared two years later. Id., at 20,
25. Starting in the 1950’s, Texas began issuing plates to
Cite as: 576 U. S. ____ (2015) 5
ALITO, J., dissenting
identify some other registrants, such as “Amateur Radio
Operator” (1954), id., at 38, “State Judge” (1970) id., at 64;
and “Disabled Veteran,” (1972), id., at 79.
A sesquicentennial plate appeared in 1985, and two
years later, legislation was introduced to create a bronze
license plate with 14-karat gold-plated lettering, available
for a fee of $1,000. Id., at 81. The proposal aimed to make
the State a profit, but it failed to pass. Ibid.
It was not until 1989 that anything that might be con-
sidered a message was featured regularly on Texas plates.
The words “The Lone Star State” were added “as a means
of bringing favorable recognition to Texas.” Id., at 82.
Finally, in the late 1990’s, license plates containing a
small variety of messages, selected by the State, became
available for the first time. Id., at 101. These messages
included slogans like “Read to Succeed,” “Keep Texas
Beautiful,” “Animal Friendly,” “Big Bend National Park,”
“Houston Livestock Show and Rodeo,” and “Lone Star
Proud.” Id., at 101, 113. Also issued in the 1990’s were
plates bearing the names of colleges and universities, and
some plates (e.g., “State of the Arts,” “State Capitol Resto-
ration”) were made available to raise funds for special
purposes. Id., 101.
Once the idea of specialty plates took hold, the number
of varieties quickly multiplied, and today, we are told,
Texas motorists can choose from more than 350 messages,
including many designs proposed by nonprofit groups or
by individuals and for-profit businesses through the State’s
third-party vendor. Brief for Respondents at 2; see also
Texas Department of Motor Vehicles, online at http://
www.txdmv.gov/motorists/license-plates/specialty-license-
plates (all Internet materials as visited June 12, 2015,
and available in Clerk of Court’s case file); http://
www.myplates.com.
Drivers can select plates advertising organizations and
causes like 4–H, the Boy Scouts, the American Legion, Be
6 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
ALITO, J., dissenting
a Blood Donor, the Girl Scouts, Insure Texas Kids, Moth-
ers Against Drunk Driving, Marine Mammal Recovery,
Save Texas Ocelots, Share the Road, Texas Reads, Texas
Realtors (“I am a Texas Realtor”), the Texas State Rifle
Association (“WWW.TSRA.COM”), the Texas Trophy
Hunters Association, the World Wildlife Fund, the YMCA,
and Young Lawyers.2
There are plates for fraternities and sororities and for
in-state schools, both public (like Texas A & M and Texas
Tech) and private (like Trinity University and Baylor). An
even larger number of schools from out-of-state are hon-
ored: Arizona State, Brigham Young, Florida State, Mich-
igan State, Alabama, and South Carolina, to name only a
few.
There are political slogans, like “Come and Take It” and
“Don’t Tread on Me,” and plates promoting the citrus
industry and the “Cotton Boll.” Commercial businesses
can have specialty plates, too. There are plates advertis-
ing Remax (“Get It Sold with Remax”), Dr. Pepper (“Al-
ways One of a Kind”), and Mighty Fine Burgers.
B
The Texas Division of Sons of Confederate Veterans
(SCV) is an organization composed of descendants of
Confederate soldiers. The group applied for a Texas spe-
cialty license plate in 2009 and again in 2010. Their
proposed design featured a controversial symbol, the
Confederate battle flag, surrounded by the words “Sons of
Confederate Veterans 1896” and a gold border. App. 29.
The Texas Department of Motor Vehicles Board (or Board)
invited public comments and considered the plate design
at a meeting in April 2011. At that meeting, one board
member was absent, and the remaining eight members
——————
2 The Appendix, infra, reproduces the available specialty plates men-
tioned throughout this opinion in order of first reference. When catego-
ries are referenced, examples from the category have been included.
Cite as: 576 U. S. ____ (2015) 7
ALITO, J., dissenting
deadlocked on whether to approve the plate. The Board
thus reconsidered the plate at its meeting in November
2011. This time, many opponents of the plate turned out
to voice objections. The Board then voted unanimously
against approval and issued an order stating:
“The Board has considered the information and
finds it necessary to deny this plate design applica-
tion, specifically the confederate flag portion of the de-
sign, because public comments have shown that many
members of the general public find the design offen-
sive, and because such comments are reasonable. The
Board finds that a significant portion of the public as-
sociate the confederate flag with organizations advo-
cating expressions of hate directed toward people or
groups that is demeaning to those people or groups.”
Id., at 64–65.
The Board also saw “a compelling public interest in pro-
tecting a conspicuous mechanism for identification, such
as a license plate, from degrading into a possible public
safety issue.” Id., at 65. And it thought that the public
interest required rejection of the plate design because the
controversy surrounding the plate was so great that “the
design could distract or disturb some drivers to the point
of being unreasonably dangerous.” Ibid.
At the same meeting, the Board approved a Buffalo
Soldiers plate design by a 5-to-3 vote. Proceeds from fees
paid by motorists who select that plate benefit the Buffalo
Soldier National Museum in Houston, which is “dedicated
primarily to preserving the legacy and honor of the Afri-
can American soldier.” Buffalo Soldier National Museum,
online at http://www.buffalosoldiermuseum.com. “Buffalo
Soldiers” is a nickname that was originally given to black
soldiers in the Army’s 10th Cavalry Regiment, which was
formed after the Civil War, and the name was later used
to describe other black soldiers. W. Leckie & S. Leckie,
8 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
ALITO, J., dissenting
The Buffalo Soldiers: A Narrative of the Black Cavalry in
the West 21, 26–27 (2003). The original Buffalo Soldiers
fought with distinction in the Indian Wars, but the “Buf-
falo Soldiers” plate was opposed by some Native Americans.
One leader commented that he felt “ ‘the same way about
the Buffalo Soldiers’ ” as African-Americans felt about the
Confederate flag. Scharrer, Specialty License Plates can
Bring in Revenue, But Some Stir Up Controversy, Hous-
ton Chronicle, Nov. 26, 2011, P.B2. “ ‘When we see the
U. S. Cavalry uniform,’ ” he explained, “ ‘we are forced to
relive an American holocaust.’ ” Ibid.
II
A
Relying almost entirely on one precedent—Pleasant
Grove City v. Summum, 555 U.S. 460—the Court holds
that messages that private groups succeed in placing on
Texas license plates are government messages. The Court
badly misunderstands Summum.
In Summum, a private group claimed the right to erect
a large stone monument in a small city park. Id., at 464.
The 2.5-acre park contained 15 permanent displays, 11 of
which had been donated by private parties. Ibid. The
central question concerned the nature of the municipal
government’s conduct when it accepted privately donated
monuments for placement in its park: Had the city created
a forum for private speech, or had it accepted donated
monuments that expressed a government message? We
held that the monuments represented government speech,
and we identified several important factors that led to this
conclusion.
First, governments have long used monuments as a
means of expressing a government message. As we put it,
“[s]ince ancient times, kings, emperors, and other rulers
have erected statues of themselves to remind their sub-
jects of their authority and power.” Id., at 470. Here in
Cite as: 576 U. S. ____ (2015) 9
ALITO, J., dissenting
the United States, important public monuments like the
Statue of Liberty, the Washington Monument, and the
Lincoln Memorial, express principles that inspire and bind
the Nation together. Thus, long experience has led the
public to associate public monuments with government
speech.
Second, there is no history of landowners allowing their
property to be used by third parties as the site of large
permanent monuments that do not express messages that
the landowners wish to convey. See id., at 471. While “[a]
great many of the monuments that adorn the Nation’s
public parks were financed with private funds or donated
by private parties,” “cities and other jurisdictions take
some care in accepting donated monuments” and select
those that “conve[y] a government message.” Id., at 471–
472. We were not presented in Summum with any exam-
ples of public parks that had been thrown open for private
groups or individuals to put up whatever monuments they
desired.
Third, spatial limitations played a prominent part in our
analysis. See id., at 478–479. “[P]ublic parks can accom-
modate only a limited number of permanent monuments,”
and consequently permanent monuments “monopolize the
use of the land on which they stand and interfere perma-
nently with other uses of public space.” Ibid. Because
only a limited number of monuments can be built in any
given space, governments do not allow their parks to be
cluttered with monuments that do not serve a government
purpose, a point well understood by those who visit parks
and view the monuments they contain.
These characteristics, which rendered public monu-
ments government speech in Summum, are not present in
Texas’s specialty plate program.
10 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
ALITO, J., dissenting
B
1
I begin with history. As we said in Summum, govern-
ments have used monuments since time immemorial to
express important government messages, and there is no
history of governments giving equal space to those wishing
to express dissenting views. In 1775, when a large gilded
equestrian statue of King George III dominated Bowling
Green, a small park in lower Manhattan,3 the colonial
governor surely would not have permitted the construction
on that land of a monument to the fallen at Lexington and
Concord. When the United States accepted the Third
French Republic’s gift of the Statue of Liberty in 1877, see
id., at 477, Congress, it seems safe to say, would not have
welcomed a gift of a Statue of Authoritarianism if one had
been offered by another country. Nor is it likely that the
National Park Service today would be receptive if private
groups, pointing to the Lincoln Memorial, the Martin
Luther King, Jr., Memorial, and the Vietnam Veterans
Memorial on the National Mall, sought permission to put
up monuments to Jefferson Davis, Orval Faubus, or the
North Vietnamese Army. Governments have always used
public monuments to express a government message, and
members of the public understand this.
The history of messages on license plates is quite differ-
ent. After the beginning of motor vehicle registration in
1917, more than 70 years passed before the proliferation of
specialty plates in Texas. It was not until the 1990’s that
motorists were allowed to choose from among 10 messages,
such as “Read to Succeed” and “Keep Texas Beautiful.”
History at 101.
Up to this point, the words on the Texas plates can be
considered government speech. The messages were created
——————
3 The Statue That Was Made Into Bullets, N. Y. Times Magazine,
July 21, 1901, at p.6.
Cite as: 576 U. S. ____ (2015) 11
ALITO, J., dissenting
by the State, and they plausibly promoted state pro-
grams.4 But when, at some point within the last 20 years
or so, the State began to allow private entities to secure
plates conveying their own messages, Texas crossed the
line.
The contrast between the history of public monuments,
which have been used to convey government messages for
centuries, and the Texas license plate program could not
be starker.
In an attempt to gather historical support for its posi-
tion, the Court relies on plates with the mottos or symbols
of other States. As the Court notes, some of these were
issued well before “The Lone Star State” made its debut in
Texas in 1991. Id., at 82. But this history is irrelevant for
present purposes. Like the 1991 Texas plate, these out-of-
state plates were created by the States that issued them,
and motorists generally had no choice but to accept them.
For example, the State of New Hampshire made it a crime
to cover up the words “Live Free or Die” on its plates. See
Wooley v. Maynard, 430 U.S. 705 (1977).
The words and symbols on plates of this sort were and
are government speech, but plates that are essentially
commissioned by private entities (at a cost that exceeds
$8,000) and that express a message chosen by those enti-
ties are very different—and quite new. Unlike in Sum-
mum, history here does not suggest that the messages at
issue are government speech.
2
The Texas specialty plate program also does not exhibit
the “selective receptivity” present in Summum. To the
contrary, Texas’s program is not selective by design. The
Board’s chairman, who is charged with approving designs,
——————
4 This opinion does not address whether the unique combination of
letters and/or numbers assigned to each vehicle, even when selected by
the motorist, is private speech.
12 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
ALITO, J., dissenting
explained that the program’s purpose is “to encourage
private plates” in order to “generate additional revenue for
the state.” Ibid., 58. And most of the time, the Board
“base[s] [its] decisions on rules that primarily deal with
reflectivity and readability.” Ibid. A Department bro-
chure explains: “Q. Who provides the plate design? A.
You do, though your design is subject to reflectivity, legi-
bility, and design standards.” Id., at 67.b.
Pressed to come up with any evidence that the State has
exercised “selective receptivity,” Texas (and the Court)
rely primarily on sketchy information not contained in the
record, specifically that the Board’s predecessor (might
have) rejected a “pro-life” plate and perhaps others on the
ground that they contained messages that were offensive.
See ante, at 11 (citing Reply Brief 10 and Tr. of Oral Arg.
49–51). But even if this happened, it shows only that the
present case may not be the only one in which the State
has exercised viewpoint discrimination.
Texas’s only other (also extrarecord) evidence of selectiv-
ity concerns a proposed plate that was thought to create a
threat to the fair enforcement of the State’s motor
vehicle laws. Reply Brief 9–10 (citing publicly avail-
able Transcript of Texas Department of Motor Vehicles
Board Meeting, Aug. 9, 2012, p. 112, online at http://
www.txdmv.gov/reports-and-data/doc_download/450–2012–
tran-aug9). This proposed plate was a Texas DPS Troopers
Foundation (Troopers) plate, proposed in 2012. The Board
considered that proposed plate at an August 2012 meet-
ing, at which it approved six other plate designs without
discussion, but it rejected the Troopers plate in a dead-
locked vote due to apparent concern that the plate could
give the impression that those displaying it would receive
favored treatment from state troopers. Id., at 109–112.
The constitutionality of this Board action does not neces-
sarily turn on whether approval of this plate would have
made the message government speech. If, as I believe, the
Cite as: 576 U. S. ____ (2015) 13
ALITO, J., dissenting
Texas specialty plate program created a limited public
forum, private speech may be excluded if it is inconsistent
with the purpose of the forum. Rosenberger, 515 U.S., at
829.
Thus, even if Texas’s extrarecord information is taken
into account, the picture here is different from that in
Summum. Texas does not take care to approve only those
proposed plates that convey messages that the State
supports. Instead, it proclaims that it is open to all pri-
vate messages—except those, like the SCV plate, that
would offend some who viewed them.
The Court believes that messages on privately created
plates are government speech because motorists want a
seal of state approval for their messages and therefore
prefer plates over bumper stickers. Ante, at 10–11. This
is dangerous reasoning. There is a big difference between
government speech (that is, speech by the government in
furtherance of its programs) and governmental blessing
(or condemnation) of private speech. Many private speak-
ers in a forum would welcome a sign of government ap-
proval. But in the realm of private speech, government
regulation may not favor one viewpoint over another.
Rosenberger, supra, at 828.
3
A final factor that was important in Summum was
space. A park can accommodate only so many permanent
monuments. Often large and made of stone, monuments
can last for centuries and are difficult to move. License
plates, on the other hand, are small, light, mobile, and
designed to last for only a relatively brief time. The only
absolute limit on the number of specialty plates that a
State could issue is the number of registered vehicles. The
variety of available plates is limitless, too. Today Texas
offers more than 350 varieties. In 10 years, might it be
3,500?
14 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
ALITO, J., dissenting
In sum, the Texas specialty plate program has none
of the factors that were critical in Summum, and the
Texas program exhibits a very important characteristic
that was missing in that case: Individuals who want to
display a Texas specialty plate, instead of the standard
plate, must pay an increased annual registration fee.
See http://www.dmv.org/tx-texas/license-plates.php. 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 Univer-
sity of Iowa) or “Young Lawyers” (but not old ones), why
must it be paid to say things that it really wants to say?
The fees Texas collects pay for much more than merely the
administration of the program.
States have not adopted specialty license plate programs
like Texas’s because they are now bursting with things
they want to say on their license plates. Those programs
were adopted because they bring in money. Texas makes
public the revenue totals generated by its specialty
plate program, and it is apparent that the program
brings in many millions of dollars every year. See
http://www.txdmv.gov/reports-and-data/doc_download/5050–
specialty-plates-revenue-fy-1994-2014.
Texas has space available on millions of little mobile
billboards. And Texas, in effect, sells that space to those
who wish to use it to express a personal message—
provided only that the message does not express a view-
point that the State finds unacceptable. That is not gov-
ernment speech; it is the regulation of private speech.
III
What Texas has done by selling space on its license
plates is to create what we have called a limited public
forum. It has allowed state property (i.e., motor vehicle
Cite as: 576 U. S. ____ (2015) 15
ALITO, J., dissenting
license plates) to be used by private speakers according to
rules that the State prescribes. Cf. Good News Club v.
Milford Central School, 533 U.S. 98, 106–107 (2001).
Under the First Amendment, however, those rules cannot
discriminate on the basis of viewpoint. See Rosenberger,
515 U.S., at 829 (quoting Cornelius v. NAACP Legal
Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985)). But
that is exactly what Texas did here. The Board rejected
Texas SCV’s design, “specifically the confederate flag
portion of the design, because public comments have
shown that many members of the general public find the
design offensive, and because such comments are reason-
able.” App. 64. These statements indisputably demon-
strate that the Board denied Texas SCV’s design because
of its viewpoint.
The Confederate battle flag is a controversial symbol.
To the Texas Sons of Confederate Veterans, it is said to
evoke the memory of their ancestors and other soldiers
who fought for the South in the Civil War. See id., at 15–
16. To others, it symbolizes slavery, segregation, and
hatred. Whatever it means to motorists who display that
symbol and to those who see it, the flag expresses a view-
point. The Board rejected the plate design because it
concluded that many Texans would find the flag symbol
offensive. That was pure viewpoint discrimination.
If the Board’s candid explanation of its reason for reject-
ing the SCV plate were not alone sufficient to establish
this point, the Board’s approval of the Buffalo Soldiers
plate at the same meeting dispels any doubt. The propo-
nents of both the SCV and Buffalo Soldiers plates saw
them as honoring soldiers who served with bravery and
honor in the past. To the opponents of both plates, the
images on the plates evoked painful memories. The Board
rejected one plate and approved the other.
Like these two plates, many other specialty plates have
the potential to irritate and perhaps even infuriate those
16 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
ALITO, J., dissenting
who see them. Texas allows a plate with the words
“Choose Life,” but the State of New York rejected such a
plate because the message “ ‘[is] so incredibly divisive,’ ”
and the Second Circuit recently sustained that decision.
Children First Foundation, Inc. v. Fiala, ___ F. 3d ___, ___,
2015 WL 2444501, *18 (CA2, May 22, 2015). Texas allows
a specialty plate honoring the Boy Scouts, but the group’s
refusal to accept gay leaders angers some. Virginia, an-
other State with a proliferation of specialty plates, issues
plates for controversial organizations like the National
Rifle Association, controversial commercial enterprises
(raising tobacco and mining coal), controversial sports (fox
hunting), and a professional sports team with a controver-
sial name (the Washington Redskins). Allowing States to
reject specialty plates based on their potential to offend is
viewpoint discrimination.
The Board’s decision cannot be saved by its suggestion
that the plate, if allowed, “could distract or disturb some
drivers to the point of being unreasonably dangerous.”
App. 65. This rationale cannot withstand strict scrutiny.
Other States allow specialty plates with the Confederate
Battle Flag,5 and Texas has not pointed to evidence that
these plates have led to incidents of road rage or accidents.
Texas does not ban bumper stickers bearing the image of
the Confederate battle flag. Nor does it ban any of the
many other bumper stickers that convey political messages
and other messages that are capable of exciting the ire
of those who loathe the ideas they express. Cf. Good News
Club, supra, at 111–112.
* * *
Messages that are proposed by private parties and
placed on Texas specialty plates are private speech, not
——————
5 See http://www.dmv.virginia.gov/vehicles/#splates/category.asp?
category=SCITTexas
Cite as: 576 U. S. ____ (2015) 17
ALITO, J., dissenting
government speech. Texas cannot forbid private speech
based on its viewpoint. That is what it did here. Because
the Court approves this violation of the First Amendment,
I respectfully dissent.
18 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
ALITO
Appendix to, J., dissenting
opinion of ALITO, J.
APPENDIX
Sample Texas Specialty Plates
Cite as: 576 U. S. ____ (2015) 19
ALITO
Appendix to, J., dissenting
opinion of ALITO, J.
20 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
ALITO
Appendix to, J., dissenting
opinion of ALITO, J.
Cite as: 576 U. S. ____ (2015) 21
ALITO
Appendix to, J., dissenting
opinion of ALITO, J.
22 WALKER v. TEXAS DIV., SONS OF
CONFEDERATE VETERANS, INC.
ALITO
Appendix to, J., dissenting
opinion of ALITO, J.
Cite as: 576 U. S. ____ (2015) 23
ALITO
Appendix to, J., dissenting
opinion of ALITO, J.
All found at http://txdmv.gov/motorists/license-
plates/specialty-license-plates