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