The Case of Sheikh Ali Salman [Bahrain]
Closed Contracts Expression
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In the State of Texas, vehicle owners are given the option of selecting specialty license plates, and the designs of these plates are approved by the Texas Department of Motor Vehicles Board. After the Board denied a design containing the Confederate battle flag and the wording “SONS OF CONFEDERATE VETERANS,” the design’s proponent sued the Board. The U.S. Supreme Court held 5-4 that the specialty license plate designs constituted government speech and thus Texas was entitled to refuse to issue plates bearing the organizations’ proposed design.
In Texas, vehicle owners are given the choice between specialty license plates and general-issue ones. The general-issue plates include the license plate number, the words “Texas” and “The Lone Star State,” a silhouette of Texas, and a Lone Star graphic. The specialty plates include “Texas” and the license plate number, but also a specialty design. Individuals pay an annual fee for specialty plates. Per Texas Transportation Code Law, the Texas Department of Motor Vehicles Board (Board) has the authority to accept or reject applications for specialty license plates. Once the Board approves a design for a specialty license plate, the plate will be available to Texas residents for display on their vehicles. Designs can contain graphics, a slogan, or both.
In 2009, the Sons of Confederate Veterans (SCV) submitted for approval a specialty plate design highlighting a Confederate battle flag (SCV’s logo), and the wording “SONS OF CONFEDERATE VETERANS” and “Sons of Confederate Veterans 1896.” The Board’s predecessor rejected this design, and SCV renewed its application in 2010. The Board solicited public comment on this design. The Board unanimously rejected the plate design and stated that “it had found ‘it necessary to deny th[e] plate design application, specifically the confederate flag portion of the design, because public comment ha[d] shown that many members of the general public find the design offensive, and because such comments are reasonable.’” Additionally, the Board stated “‘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.’”
Following this rejection, SCV and its officers sued both the Board itself and the Board’s chairman in 2012, claiming that the Board’s rejection of its plate design violated the Free Speech Clause of the First Amendment of the U.S. Constitution. SCV sought an injunction requiring the Board to accept its specialty plate design. The District Court found in favor of the Board. The divided Fifth Circuit later reversed, holding 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.”
 slip op. at p. 4 (quoting App. 64) (alterations in original).
 slip op. at p. 4 (quoting App. 65).
 slip op. at p. 4.
Breyer, J., delivered the opinion of the Court. The issue before the Supreme Court of the United States was “whether [the Board’s] rejection violated the Constitution’s free speech guarantees,” which are contained in the First and Fourteenth Amendments of the United States Constitution. In Summun, the Court set forth factors for determining whether expression is private or government speech by considering the historical use, the speaker’s identity, and control over the message. By applying the factors set forth in Summun, the Court found that the conduct in issue here was government speech.
The Court analogized Texas plates to government IDs, quoting Summun. According to the Court, ID issuers “‘typically do not permit’ the placement of ‘message[s] with which they do not wish to be associated.’” Therefore, the Court continued, those observing IDs reasonably and routinely interpret the IDs as a message being conveyed by the issuer. Finally, under state law, Texas has sole power over the license plate’s message, as demonstrated by Texas’ control over design elements and the Board’s rejection of at least twelve plate designs.
SCV argued that Texas is providing a private speech forum on its license plates, rather than engaging in expressive conduct of its own. The Court elected not to apply “forum analysis” — which would treat the expression as purely private speech on government property — as the specialty license plate is not a “traditional public forum” according to the Court. Similarly, the Court found that the specialty plates were neither a “designated public forum” nor a “limited public forum.”
In determining the type of forum, the Court looked to government practice and policy, the property’s nature, and the property’s congruity with the expressive conduct. Because Texas has final say over the specialty plates, Texas did not produce a public forum by providing specialty plates. The state’s ownership over the design process for the plates indicated that it did not intend for the plates to be a public forum. Texas license plates operate as government IDs bearing the name of the state and, therefore, denote an association between Texas and the content on the specialty plates. Accordingly, the Court found that the Texas specialty plates are also not a “nonpublic forum.”
Therefore, the Supreme Court held 5-4 that “Texas’s specialty license plate designs constitute government speech, and that Texas was entitled to refuse to issue plates featuring SCV’s proposed design.”
Alito, J., wrote a dissenting opinion. Justice Alito wrote that the decision and majority opinion “threatens private speech that the government finds displeasing,” and “takes a large and painful bite out of the First Amendment.”
 slip op. at 1.
 U.S., Pleasant Grove City v. Summum, 555 U.S. 460 (2009).
 slip op. at 10 (quoting Summum at 471).
 slip op. at 18.
 slip op. at 1, 3 (Alito, J., dissenting).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the definition of government speech. While it allowed the state of Texas to decline promoting the Confederate flag in this case, it could also give states greater freedom to determine what speech it will display to the public in future cases. Depending on how it is interpreted by lower courts, it allows the government to have a greater independent viewpoint of its own, and thus more opportunity to indirectly endorse some speech while limiting opposing viewpoints in cases of government speech.
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