The license plates on cars are issued by the state. But states have found that they can generate extra revenue by creating so-called ‘vanity plates’ that surround the obligatory identifying information with a message that car owners can choose subject to state approval. This raises the issue of whose view is on the plate, the car owner or the state. The fact that the owner chose that message argues in favor of the owner. The fact that the state issues the plates and controls what can be put on it argues in favor of the state. So what happens when the owner selects a message that the state objects to?
This issue is now before at the US Supreme Court in the case of Walker v. Texas Division, Sons of Confederate Veterans, Inc.. Lyle Denniston explains what the court is being asked to decide.
The key issue in the license plate case (Walker v. Sons of Confederate Veterans) is whether the messages that are displayed on specialty tags are a form of government speech, so that officials can decide which to allow or to forbid. If, however, they represent the views of the car or truck owner, then the government’s power to veto a message is more tightly restricted.
In a 1977 ruling, in Wooley v. Maynard, the Court treated a license plate message as a form of private speech displayed on private property, but it did not rule explicitly whether this was government speech or private speech more generally. In the 2009 decision in Pleasant Grove City v. Summum, the Court decided that a government entity has a right to speak for itself, and thus has the authority to refuse to accept a symbolic monument for display in a public park.
The Court was asked in the Texas case, and in a separate North Carolina case that is now apparently being kept on hold, to clarify a split among federal appeals courts on whether vanity plate messages are to be treated as government or private expressions. In the Texas case, a group that seeks to preserve the memory and reputation of soldiers who fought for the Confederacy sought state approval for a plate design that included the Confederate battle flag.
Ultimately, after a series of conflicting votes, a state agency turned down that design, saying that many people regard the rebels’ flag as associated with hatred toward groups. The Texas Division of the Sons of Confederate Veterans sued, and ultimately won a decision by the U.S. Court of Appeals for the Fifth Circuit, declaring that specialty plate messages are a form of private speech, and that the state agency had engaged in forbidden viewpoint discrimination.
The Supreme Court will now review the Fifth Circuit’s decision.
My own feeling is that states should not issue vanity plates. The plates should not even have the state’s motto or similar slogan on it since car owners may not like what it says and are yet required to display that message. But as states try to get a few extra dollars for their coffers by selling these things, they open themselves up to these kinds of legal complications.