Amicus Curiae Brief — Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 752 (2014) (No. 14-144)

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No. 14-144 is EB 1? 2015

IN THE OFFICE OF THE CLERK

Supreme Court of the Anited States

JOHN WALKER, ITI, IN HIS OFFICIAL CAPACITY AS

CHAIRMAN OF THE BOARD, ET AL.,

Petitioners,

TEXAS DIVISION, SONS OF CONFEDERATE

VETERANS, INC., ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit .

BRIEF OF THE RUTHERFORD INSTITUTE

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

JOHN W. WHITEHEAD D. ALICIA HICKOK

DOUGLAS R. MCKUSICK Counsel of Record

THE RUTHERFORD INSTITUTE TODD N. HUTCHISON

932 Gardens Boulevard DRINKER BIDDLE & REATH LLP

Charlottesville, VA 22901 One Logan Square,

(434) 978-3888 Suite 2000

Philadelphia, PA 19103

(215) 988-2700

Alicia. Hickok@dbr.com

Counsel for Amicus Curiae

February 17, 2015

ELT DOLE SS OE ASE ORION TI 8 OE TT STILE SAAS

WILSOMEPES PRINTING CO.,INC. — (202) 789-0096 ~— WASHINGTON, D.C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ....................cceeceeeeeees

IDENTITY AND INTEREST OF AMICUS

Stee eee eee Pee eee eee eee eee eee

I. The Test Applied by the Court of Appeals

for the Fifth Circuit—and Variations.

Applied by Other Courts of Appeals—

Does Not Capture the Entire

Government Speech Analysis...................

A. The Two Cases Relied on by the Court

of Appeals Represent Only Two of the

Three Lines of Cases on Government

B. The Reasonable Observer Test Is

Inapt for Ascertaining Government

Ul. The Demarcation Between Government

Speech and Private Speech Should Be the

Medium of Speech and the Government’s

IIE CD HII sosntnsedessSovenaiennsitesdecsices

CONCLUSION

(i)

TABLE OF AUTHORITIES

CASES Page(s)

Abood v. Detroit Bd. of Educ., 431 U.S. 209

CIEE G 0 oscccnscnncensesseboainussebvnsninetenianiiiiennal 4,5

ACLU v. Tata, 742 F.3d 563 (4th Cir.

OGD ccccnccicnsseicsconinjeasiementonnmmmdaania aan 7,16

ACLU of Tenn. v. Bredesen, 441 F.3d 370

Ge GRP, GID onsctccicccccsapsesecmsestcainae! 16

Agency for Intl Dev. v. Alliance for Open

Soc’y Intl, Inc., 570 U.S. ___, 133 S. Ct.

BS ei evctessecciincisticensectoniestamabauainan 6

Bd. of Educ. v. Grumet, 512 U.S. 687

CR scccrccccvececeinssiasinssinacibbemmmcnsieaaaneiainl 4

Bd. of Regents of Univ. of Wis. Sys. v.

Southworth, 529 U.S. 217 (2000) .....5, 6, 11, 13

Byrne v. Rutledge, 623 F.3d 46 (2d Cir.

Do wiciastncersccniaksnisictiatiaaa as 11, 12, 14, 15

Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753 (1995) ................... 8,9,18

Choose Life Ill., Inc. v. White, 547 F.3d 853

CHa Ge, TRIN ccesisscccsvsicesccssesccenpeintionsantian 15, 16

Christian Legal Soc’y Chapter of Univ. of

Cal., Hastings Coll. of Law v. Martinez,

RR UFFe. GR Cie necntoccectunnitsecinncmaaet 13, 14

Cornelius v. NAACP Legal Defense & Educ.

Fund, 473 U.S. 788 (1985).............:.ccccse08 13, 14

Cressman v. Thompson, 719 F.3d 1139

CRN Cir, RI ecitescsiscinssitdssinscisttvanintechaianpaanial 9

ill

TABLE OF AUTHORITIES—Continued

Page(s)

Glickman v. Wileman Bros. & Elliott, 521

ea 4

Gomez v. Campbell-Ewald Co., 768 F.3d

II TI ss nscmeenemnssnanosensousnes 18

Good News Club v. Milford Cent. Sch., 533

circa dlneeenennssnaessnseseoenesdeeneenes 14

Johanns v. Livestock Mktg. Ass’n, 544 U.S

SIT tiaghcunammechsdettootenncesccescweanceeney passim

Keller v. State Bar of Cal., 496 U.S. 1

a ceeenegmansannncanoneusers 4

Lamb’s Chapel v. Ctr. Moriches Union Free

Sch. Dist., 508 U.S. 384 (1993)................. 14-15

Legal Servs. Corp. v. Velazquez, 531 U.S.

ta caenernmstnesendiocnapincese 6,13

Newton v. Lepage, 700 F.3d 595 (ist Cir.

dee US 3, 12

Oberwetter v. Hilliard, 639 F.3d 545 (D.C.

Neen sass aeiecntenmeenneonnes 3

Perry Educ. Ass’n v. Perry Local Educators’

PE GE OPIS BO CRED cccccccccecesecccssccccess 14

Pleasant Grove City v. Summum, 555 U.S.

ENE passsim

Rosenberger v. Rector & Visitors of Univ. of

Va., 515 U.S. 819 (1995) ........................+. passim

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

a ccinccetanencanse 6

TABLE OF AUTHORITIES—Continued

Page(s)

Tex. Div., Sons of Confederate Veterans,

Inc. v. Vandergriff, 759 F.3d 388 (5th Cir.

TIE cectdasnenmssdénenapetmetnstactmmaenenieminatiegsias 3

Texas ex rel. Texas Transp. Comm’n v.

Knights of the Ku Klux Klan, 58 F.3d

1075 (Sth Cir. 1995) ...............cccceeeeeceeeeeeees 20

Wooley v. Maynard, 430 US. 705

ee i caivisisitiieonnemascceinisieithsninasinaiesaacadmnaieniad 4,8,9, 21

STATUTES

Tex. Transp. Code § 504.102 ..........:.cccccc0000 ~

Tex. Transp. Code § 504.801..................000 8,17

Tex. Transp. Code § 504.6011..............0....... 17

Tex. Transp. Code Subch. C-G..................... 8

IDENTITY AND INTEREST '

OF AMICUS CURIAE

The Rutherford Institute is an international non-

profit organization headquartered in Charlottesville,

Virginia. Founded in 1982 by its President, John W.

Whitehead, the Institute specializes in providing

legal representation without charge to individuals

whose civil liberties are threatened or infringed and

in educating the public about constitutional and

human rights issues. The Rutherford Institute is

interested in the instant case because this Court’s

decision on when the government may and may not

regulate the content of citizens’ viewpoints is crucial

to preserving the protections afforded by the First

Amendment to our Constitution. The unavoidable

corollary to expanding the scope of “government

speech” is limiting the scope of private speech and

regulating individuals’ viewpoints. The Rutherford

Institute urges this Court to affirm the decision below.

SUMMARY OF ARGUMENT

The First Amendment protects a speaker’s right

to speak. In this case, the Court of Appeals was faced

with the question of who the speaker was. It sought

to answer that question by asking who a reasonable

observer would believe the speaker to be. The Court

of Appeals answered that question correctly, but using

a reasonable observer standard is subjective and, thus,

unreliable; this much is obvious from the straight-

1 This amicus brief is filed with the parties’ consent.

Petitioners filed their consent on December 12, 2014, and

Respondents filed their conseat on January 7, 2015. No counsel

for any party authored this brief in whole or in part, and no

monetary contribution intended to fund the preparation or

submission of this brief was made by such counsel or any party.

forward question: does the license plate in question

honor soldiers or ancestors or antebellum prejudice?

This Court generally has avoided expressing its

views on the content of speech in the context of its

First Amendment analysis, instead allowing the

marketplace of ideas to weigh the various views.

Sitting in traffic, observing diverse license plates on

the vehicles all around, is no different. Consistent

with that principle, The Rutherford Institute asks the

Court to consider instead whether the government has

invited the private speech and, if it has, what groups

or categories of speech the government invited to

contribute to the marketplace of ideas. By borrowing

this principle from the limited public forum context,

this Court can establish clear guidance for distin-

guishing between government and private speech,

and, in the process, explain to States how they can

retain control of their messaging if that is what

they wish to do. Reasonable observers may disagree

whether a specialty license plate is private speech, but

Texas’s invitation to “any nonprofit entity” to sponsor

specialty plates invites all nonprofit comers and

requires viewpoint neutrality.

ARGUMENT

Il. The Test Applied by the Court of Appeals

for the Fifth Circuit—and Variations

Applied by Other Courts of Appeals—Does

Not Capture the Entire Government

Speech Analysis.

In defining “government speech,” the Court of

Appeals for the Fifth Circuit drew upon two opinions

from this Court, Pleasant Grove City v. Summum, 555

U.S. 460 (2009), and Johanns v. Livestock Marketing

Ass'n, 544 U.S. 550 (2005). See Tex. Div., Sons of

Confederate Veterans, Inc. v. Vandergriff, 759 F.3d

388, 393 (5th Cir. 2014). The Court of Appeals for the

Fifth Circuit is not alone in that regard. See, e.g.,

Newton v. Lepage, 700 F.3d 595, 602 (1st Cir. 2012)

(evaluating a mural in the reception area of a

government agency); Oberwetter v. Hilliard, 639 F.3d

545, 554 (D.C. Cir. 2011) (asking whether a dancer

must be permitted to perform in the Jefferson

Memorial). This makes a certain amount of sense,

because, as the Court of Appeals remarked, and as

Justice Stevens observed in his concurrence in

Summum, 555 U.S. at 481, the government speech

doctrine is “recently minted.”

The Court of Appeals here reached the correct

result, but The Rutherford Institute writes to suggest

that the test it applied in the process (1) improperly

ignores a third line of United States Supreme Court

cases that provides a much more precise and apt basis

for ascertaining whether speech is public or private;

and (2) is not in accord with this Court’s precedent

and is likely to lead to inconsistent results. In Section

II, infra, The Rutherford Institute proposes an alter-

native test that it borrows from this Court’s precedent

on the “limited public forum,” which accommodates

the concerns raised by Petitioners and their amici.

Under this alternative, the decision of the Court of

Appeals below remains correct and should be affirmed.

A. The Two Cases Relied on by the Court

of Appeals Represent Only Two of the

Three Lines of Cases on Government

Speech.

Summum is one of a line of cases that has

assessed the intersection of Establishment Clause

jurisprudence and speech with regard to the use of

government land. Johanns, in contrast, is from a line

of cases that has evaluated (or recognized that the

question was not ripe for addressing) the extent to

which the government may require private persons to

underwrite the cost of a government message. See,

e.g., Abood v. Detroit Bd. of Educ., 431 U.S. 209,

259 n.13 (1977) (Powell, J., concurring in judgment)

(“Clearly, a local school board does not need to

demonstrate a compelling state interest every time

it spends a taxpayer’s money in ways the taxpayer

finds abhorrent. But the reason for permitting the

government to compel the payment of taxes and to

spend money on controversial projects is that the

government is representative of the people. The same

cannot be said of a union, which is representative only

of one segment of the population, with certain common

interests. The withholding of financial support is

fully protected as speech in this context.”); Keller v.

State Bar of Cal., 496 U.S. 1, 10 (1990) (“A govern-

mental agency may use unrestricted revenue, whether

derived from taxes, duefs], fees, tolls, tuition,

donations, or other sources, for any purposes within its

authority.” (citation omitted)); Glickman v. Wileman

Bros. & Elliott, 521 U.S. 457, 482 & n.2 (1997) (Souter,

J., dissenting) (acknowledging private persons have

right to be free from subsidizing compelled speech by

private and quasi-private organizations, and noting

that the Secretary of Agriculture was not arguing that

the speech at issue was government speech).’

But, beginning at least as early as Board of

Education v. Grumet, 512 U.S. 687, 720 (1994),

2 Wooley v. Maynard, 430 U.S. 705 (1977), is along this line,

although the specific question in that case was whether a speaker

could refuse to communicate a government-adopted message,

rather than to underwrite it.

another layer of cases arose—sometimes with

Establishment Clause implications and sometimes

not—in which the Court assessed the inverse of the

question presented in the Abood line of cases: if the

universities in question permitted and encouraged

individual students to choose and participate in

student activities required viewpoint neutrality. In

Southworth, the Court drew an explicit line between

facilitation of student expression and the speech of the

university:

Where the University speaks, either in its

own name through its regents or officers, or

in myriad other ways through its diverse

faculties, the analysis likely would be

altogether different. When the

its own policies or to advance a particular

idea, it is, in the end, accountable to the

electorate and the political process for its

advocacy. If the citizenry objects, newly

elected officials later could espouse some

different or contrary position.

529 U.S. at 235. The Court also explained why having

students vote for which expressive activities would

receive student benefits was “constitutionally prob-

lematic”: “The whole theory of viewpoint neutrality is

that minority views are treated with the same respect

as are majority views.” Jd.

The Court distinguished Southworth in Santa Fe

Independent School District v. Doe, 530 U.S. 290, 302-

03 (2000), finding that the school district was the

speaker for purposes of the Establishment Clause,

because the school district allowed only a single

student to give an invocation, “subject to particular

regulations that confine the content and topic of the

student’s message.” Id. The Doe Court agreed with

the Southworth Court, however, that an election could

not protect minority views. Id. at 304-05. Nonetheless,

Chief Justice Rehnquist, in dissent, suggested that it

would likely have been constitutional for the students

to choose a speaker “according to wholly secular

criteria—like good public speaking skills or social

popularity—and the student speaker may have

chosen, on her own accord, to deliver a religious

message.” Id. at 324 (Rehnquist, C.J., dissenting); see

also Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541-

42 (2001) (observing that “viewpoint-based funding

decisions can be sustained in instances in which the

government is itself the speaker” or “used private

speakers to transmit information pertaining to its own

program” and that the Legal Services Corporation

program in question “was designed to facilitate private

speech, not to promote a governmental message”

(citation omitted)); Agency for Int'l Dev. v. Alliance for

Open Soc’y Int'l, Inc., 570 U.S. __, 133 S. Ct. 2321,

2328 (2013) (“In the present context, the relevant

distinction that has emerged from our cases is between

conditions that define the limits of the government

spending program—those that specify the activities

Congress wants to subsidize—and conditions that

seek to leveraye funding to regulate speech outside the

contours of the program itself.”).

This Court has drawn from all three lines of cases in

evaluating whether there is government speech at

issue. But, as discussed at greater length in Section

L.B, infra, by failing to incorporate the principles set

forth in the Rosenberger line of cases in the

government speech analysis, the Court of Appeals

here has—and other Courts of Appeals have—crafted

a test that will not adequately guide the lower courts

as they seek to differentiate government from private

speech.°

To be sure, the Court of Appeals for the Fifth Circuit

acknowledged Rosenberger, but only in the context

of the second question the Court of Appeals faced—

whether Texas’s conduct was viewpoint discrimina-

tion. The Rutherford Institute writes to suggest that

the Rosenberger line of cases also provides assistance

to the question the Court of Appeals addressed first—

whether the speech at issue is government speech or

private speech.

B. The Reasonable Observer Test Is Inapt

for Ascertaining Government Speech.

Although The Rutherford Institute writes in support

of Respondents, it agrees with Petitioners that

defining government speech by what a “reasonable

observer” would perceive is “indeterminate” and can

lead “different jurists to reach diametrically opposing

3 The Court of Appeals for the Fourth Circuit has developed its

own test, where it asks whether speech was governmental based

on: (1) “the central purpose of the program in which the speech

in question occurs”; (2) “the degree of editorial control exercised

by the government or private entities over the content of the

speech”; (3) “the identity of the literal speaker”; and (4) “whether

the government or the private entity bears the ultimate

responsibility for the content of the speech.” See ACLU v. Tata,

742 F.3d 563, 569 (4th Cir. 2014), petition for cert. filed sub. nom.,

Bergen v. ACLU of N.C., No. 14-35 (July 11, 2014) (quotation

marks and citation omitted).

conclusions.” Pet’rs Dr. at 29. For different reasons

than those articulated by Petitioners, The Rutherford

Institute also agrees that a subjective reasonable

observer test is in tension with the principles

underlying the government-private speech analysis.

Considering the Court’s precedents more broadly,

however, it appears that this Court has actually used

perception as a proxy for the structural assurances

that a government is facilitating private speech. See

Capitol Square Review & Advisory Bd. v. Pinette, 515

U.S. 753, 765-66 (1995) (plurality opinion) (crediting

those familiar with community practices with the

ability to recognize an open forum and private

sponsorship of an activity).

In Texas, by statute, a sponsor (including “any

nonprofit entity”) of a specialty license plate can

contract with a specified private vendor for the

plate’s manufacture and distribution, Tex. Transp.

Code § 504.801(a), (b); may nominate a state agency to

receive funds from the sale of the plates and “identify

uses to which those funds should be appropriated,”

id. § 504.801(b); and individuals may personalize

specialty license plates for an additional fee, id.

§ 504.102. Moreover, the Texas Transportation Code

distinguishes between specialty license plates that

serve specific functions—addressed in Subchapters C-

F (for those with disabilities, in the military, or others

with restricted distribution or regular license plates)

and Subchapter G, which covers the specialty license

plates for general distribution that are the provisions

at issue here. Numerous aspects of individual choice

have been built into Texas’s specialty license plate

scheme.* And, as a result, a person purchasing a

* Of course, just as with Wooley, the state could choose to speak

by creating a uniform license plate that requires persons to “use

license plate knows that he or she can choose a plate

based on personal preferences. Vehicle owners, as

individuals, thus choose what to say as a community.

Cf. Capitol Square Review & Advisory Bd., 515 U.S. at

765-66 (plurality opinion) (noting communiiy

members are able to recognize private sponsorship of

an activity in an open forum).

In contrast, in cases such as Johanns, 544 U.S. at

554, the government has deliberately set out to

articulate a message that it has conceived; there is

no question whose voice is being heard in that

circumstance either. The public display cases take a

step back from that, however, because, as this Court

recognized in Summum, when the government owns

property and deliberately places something on that

land, it has “engaged in expressive conduct” without

regard to what the message is or to whether it

“formally embrace[s]” the message. 555 U.S. at 474.

This creates a danger that counsels particular caution

in ascribing speech to the government—and in giving

the government the concomitant power to control that

speech. When a government seeks to measure its

conduct by a hypothetical reasonable observer, it will

necessarily bring its own perspective to bear—

something that Petitioners tacitly embrace by

insisting that Texas should not be required to be

their private property as a ‘mobile billboard’ for the State’s

ideological message” and “to be an instrument for fostering public

adherence to an ideological point of view.” 430 U.S. at 715. But

that is not this case. Cf. Cressman v. Thompson, 719 F.3d 1139,

1157 (10th Cir. 2013) (reversing dismissal because plaintiff

alleged sufficient facts to “suggest that the ‘Sacred Rain Arrow’

image on the standard Oklahoma license plate conveys a

particularized message that others are likely to understand and

to which he objects”).

associated with what it perceives to be a pro-

Confederacy stance.

But, as this Court explained, a monument “may be

intended to be interpreted, and may in fact be

interpreted by different observers, in a variety of

ways.” Id. Indeed, text-based monuments “are almost

certain to evoke different thoughts and sentiments in

the minds of different observers, and the effect of

monuments that do not contain text is likely to be even

more variable.” Id. at 475-76.

This case is illustrative of that ambiguity, because

Petitioners have focused solely on the fact that some

persons will be offended by references to the

Confederacy; others may focus on the fact that a

person is remembering a veteran, and those persons

may recognize that every war engenders bitter

responses by some and pride by others. For this

reason alone, it is remarkable that Petitioners are self-

righteous in their indignation toward Respondents

when Texas has, in its own words, placed its “name

and prestige behind” a plate honoring Buffalo Soldiers.

Pet's Br. at 31. Apparently the State of Texas is

willing to “associate with or endorse [and]

propagate” a message that embraces a historical

occurrence as demonstrating current prejudice—but

only when the State is not offended.® Id. at 31-32.

This case has far less of a tie between the

government and a message than the monuments at

issue in Summum, because a license plate is typically

5 At the same hearing in which Respondents’ proposed plate

was rejected, the Texas Department of Motor Vehicles Board

approved a plate honoring Buffalo Soldiers, despite a report that

a group of Native Americans found the Buffalo Soldiers plate

offensive. See Resp’ts Opp’n to Pet. for Writ of Cert. at 4.

viewed fleetingly (if a person looks beyond the make

and model of a private automobile to the plate at all),

while a monument may well be positioned by the

government in an environment that invites a viewer

to sit near it or to walk around or through it and to

read any text on it and contemplate it. The only

connection between the government and a personalized

specialty plate is the fact that the State mandates

some license plate for identification purposes.

When the government seeks to take upon itself to

regulate what speech private persons engage in

through government channels, the government takes

on the role of the “voters” that were condemned in

Southworth, controlling what message will be heard

based upon how it construes the message. That

offends the First Amendment, because the essence of

the principle forbidding viewpoint discrimination is

that minority views deserve precisely the same

protection as majority views. See Southworth, 529

US. at 235.

Although not articulated in the same way, the Court

of Appeals for the Second Circuit recognized the

weakness of a subjective test in Byrne v. Rutledge, 623

F.3d 46, 60-61 (2d Cir. 2010):

The infirmities in Vermont’s application of its

own statute are amply demonstrated by the

case at bar. Byrne applied for the plate

JN36TN, which the state refused to issue

because Byrne’s supplied meaning indicated

his intent to refer to the Biblical passage John

3:16. However, as Byrne argues, and the

record supports, Vermont would have

approved that very same combination had

Byrne supplied a secular meaning for it — e.g.,

“[Mly name is John, I am 36, [and] I was born

in Tennessee.” Of course, no one other than

Byrne himself and the DMV clerk processing

his application would know the difference — to

all outside observers, the issued plate would

appear the same irrespective of Byrne’s

supplied meaning — and yet the state would

have us approve as “reasonable” its attempt

to distinguish between the two applications

for the same plate. This we decline todo. The

state offers no legitimate government interest

furthered in drawing such a distinction, nor

can we discern any.

Id.

In any event, the reasonable observer analysis is

often superfluous. In Newton, 700 F.3d at 602, for

example, the government wanted to move a mural that

“some” perceived as pro-labor, and the appellants

argued that the proper test was “whether a person in

the waiting room could have reasonably understood

the mural’s views to be those expressions of the artist

and not of the government.” The Court of Appeals

refused to decide whether the speech was the artist’s

or the government’s, finding greater significance in

the prominence and location of the mural, and

granting the government authority to “disassociate

itself from an endorsement implicit from the setting

for the mural.” Jd. Rather than apply a reasonable

observer test, the case could have been decided merely

based on the fact that “the government must have

some discretion as to the choice of art it puts on the

walls of its offices.” Id. at 603.

Whether considered unnecessary, inapt, or unduly

subjective, there exists a better alternative to the

“reasonable observer” test applied here by the Court of

Appeals for the Fifth Circuit.

Il. The Demarcation Between Government

Speech and Private Speech Should Be the

Medium of Speech and the Government’s

Invitation to Speak.

This Court’s jurisprudence provides an alternative

means to clarify the standard for distinguishing

between government speech and private speech,

readily available in the First Amendment context.

Decisions regarding the “limited public forum” offer an

apt analogy for distinguishing between government

and private speech and, on more than one occasion,

this Court has looked to these principles as instructive

for other purposes in First Amendment analysis. See,

e.g., Velazquez, 531 U.S. at 544; Southworth, 529 U.S.

at 229-30. The Court should draw on those principles

in this case to elucidate the distinction between

government speech and private speech.

A limited public forum is a forum that is limited to

use by certain groups or dedicated solely to the

discussion of certain subjects. Christian Legal Soc’y

Chapter of Univ. of Cal., Hastings Coll. of Law v.

Martinez, 561 U.S. 661, 679 n.11 (2010) (citing

Summum, 555 U.S. at 470). A “forum” is not an

entirely apt image, because a channel or medium of

communication may constitute the relevant forum for

this analysis, and the forum is defined with reference

to the access sought by the speaker. See Cornelius v.

NAACP Legal Defense & Educ. Fund, 473 U.S. 788,

801 (1985). A more tailored analysis of the relevant

forum may be appropriate to identify the forum

to which speakers seek access on public property. See

id. In Cornelius, the speakers sought access to the

Combined Federal Campaign, a means by which

entities could seek charitable contributions from

federal employees. The speakers were not seeking

access to the federal government’s physical property

(i.e., the workplaces), but instead were seeking “access

to a particular means of communication.” Id.

In a limited public forum, the State may restrict

speech, but it may not discriminate on the basis of

viewpoint and the restriction must be reasonable in

light of the purpose served by the forum. Good News

Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001).°

Moreover, once “limited” access is granted to the

“forum,” the constitutional right of access extends to

other entities of similar character. See Perry Educ.

Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 48

(1983). The objective of this standard is not to

narrowly define the category or group that has been

permitted; once the forum is opened to a category or

group, the government may not prohibit a particular

viewpoint of similar groups or within that category.

See, e.g., Rosenberger, 515 U.S. at 824-25 (holding

unconstitutional a restriction on reimbursement of

costs to student news organization because its publica-

tions expressed a religious viewpoint); Lamb’s Chapel,

* There is some suggestion that Texas did not create a limited

public forum in this case because it did not intend to do so, citing

Cornelius, 473 U.S. 788. See Amicus Br. of Ohio et al. at 20-24.

Cornelius certainly discusses an intent requirement, but based

on subsequent decisions, including Rosenberger, Summum, and

Christian Legal Society, among others, it appears the “intent”

requirement of Cornelius applies to a “designated public forum,”

rather than a “limited public forum,” as those terms are used in

more recent decisions of this Court. The scope of permissible

regulation for the “nonpublic forum” in Cornelius and Lamb's

Chapel v. Center Moriches Union Free School District, 508 US.

384 (1993), and for the “limited public forum” in more recent

decisions of this Court confirm the interchanged labeis. See also

Byrne, 623 F.3d at 54 1.8. Accordingly, Respondents need not

show that Texas intended to create a limited public forum in

specialty license plates.

508 U.S. at 387, 394 (concluding that state law

permitting “social, civic, or recreational uses” of public

schools could not prohibit religious viewpoints on

those topics).

For this reason, the Court of Appeals for the Seventh

Circuit, in Choose Life Illinois, Inc. v. White, 547 F.3d

853, 855 (7th Cir. 2008), may have taken too granular

a view of the permissible exclusion. Dlinois permitted

anyone to sponsor a specialty license plate if they

obtained a sufficient number of applicants. The broad

scope of the invitation prohibited [llinois from

discriminating against the viewpoints of the invited

individuals. But in considering the message rather

than the scope of the invitation, that is precisely what

the flawed analysis of the Court of Appeals for the

Seventh Circuit permitted. The Court of Appeals for

the Second Circuit, by comparison, properly

recognized that the scope of the invitation controls.

See Byrne, 623 F.3d at 55.’ By inviting all to adopt a

vanity plate, Vermont could not reject a particular

viewpoint—..e., religious.®

’ Under Petitioners’ application of the reasoning of the Court

of Appeals for the Seventh Circuit, no court could find—as the

Court of Appeals for the Second Circuit did—that the government

was doing anything except controlling access to the forum when

it excludes plates. Indeed, Petitioners’ brief cites Choose Life

Illinois in arguing that it should be entitled to reject Respondents’

proposed specialty plate because “(t]he State has not issued any

specialty license plate that disparages the confederate battle flag

or the views espoused by the Sons of Confederate Veterans.”

Pet'rs Br. at 46.

* This is not to say that Vermont could not exercise any

control over the content of the vanity license plates. Its statute

expressly delineated certain characteristics of plates that were

categorically excluded. But those circumstances are objective,

narrowly defined, and carefully maintained. None would apply

The discord in the analysis among the Courts of

Appeals is troubling. The Courts of Appeals for the

Fourth, Sixth, and Seventh Circuits reached different

results and for different reasons on nearly identical

specialty license plates. Although the Fourth and

Seventh Circuits agreed that the speech was private,

they disagreed on the permissible regulation; the

Sixth Circuit, however, did not even agree that private

speech rights were implicated. Compare Tata, 742

F.3d at 574 (concluding North Carolina legislative

enactment could not choose one side of abortion debate

because specialty license.. plates implicate private

speech rights), with White, 547 F.3d at 865-66

(concluding that Illinois legislature could exclude

entire subject of abortion because the exclusion was

content-based but viewpoint neutral, as permitted

in a nonpublic, or limited public, forum), and ACLU

of Tenn. v. Bredesen, 441 F.3d 370, 379-80 (6th Cir.

2006) (concluding Tennessee could legislatively limit

specialty license plates to one side of debate because

the “Choose Life” message was government speech).

These inconsistent results—as to whether and even

when there is agreement on who is the speaker—

underscore that the approaches currently used in the

Courts of Appeals are inadequate to provide clear

guidance to distinguish between government speech

and private speech.

Applying the limited public forum principles by

analogy, the State’s invitation for private participation

in an area of traditional government speech provides

a clear means to distinguish between government

and private speech. An invitation extended to certain

categories or groups requires the government to

here. And, certainly, the potential to offend is not one of those

circumstances.

permit all private viewpoints even in an area

traditionally considered government speech, subject to

reasonable restrictions.

Here, Respondents seek access to a medium of

communication, which Texas has opened to certain

groups. In particular, Texas has invited any non-

profit entity to submit a proposal for a specialty license

plate. Tex. Transp. Code § 504.801(b).° Texas goes on

to say that it will “design each new specialty license

plate in consultation with the sponsor” and that it

“may refuse to create a new specialty license plate if

the design might be offensive to any member of the

public, if the nominated state agency does not consent

to receipt of the funds derived from issuance of the

license plate, if the uses identified for those funds

might violate a statute or constitutional provision,

or for any other reason established by rule.” dd.

§ 504.801(c).

Petitioners insist that the latter provision trans-

forms Texas into the speaker and enables it to control

whether individual sponsors may use specialty license

plates to convey messages. But section 504.801(c) is

not the State speaking; it is the State reserving to

itself the discretion to determine whether “any

member” of the public “might be” offended, and then

the additional discretion whether to refuse to produce

the plate—or not—even if it thinks any member (or

many members) may be offended. That allowed the

State to approve the Buffalo Soldiers plate and

disapprove Respondents’ plate.

® Texas has also invited for-profit entities and individuals to

design specialty license plates through a third-party vendor. See

Tex. Transp. Code § 504.6011(a). The Rutherford Institute

focuses on nonprofit entities because Respondents fall within that

group.

It is thus the power of discrimination that Texas

calls “government speech.” But, as the Court of

Appeals for the Ninth Circuit succinctly stated: “The

government speech doctrine is a jurisprudential

theory by which the federal government can regulate

its own communication ‘without the constraint of

viewpoint neutrality.” Gomez v. Campbell-Ewald Co.,

768 F.3d 871, 877 (9th Cir. 2014), petition for cert.

filed, No. 14-857 (Jan. 16, 2015) (citation omitted). If,

as in Johanns, the government has a message that it

intends to communicate, its freedom to define the

parameters of that content makes sense. And if, as in

Summum, the issue is not what the government

intends to say but that it is being permanently said on

a finite amount of government property, it likewise

makes sense that the government be permitted to

choose the content of that speech.

But here, Texas invoked the standard, “might be

offensive to any member,” as the basis for refusing

Respondents’ proposed plate. That basis permitted

Texas to do precisely what is prohibited in a limited

public forum—Texas discriminated against a view-

point of a nonprofit entity it had invited to create a

specialty license plate. The statute’s subjective

standard engenders this discrimination because it is,

by its terms, not viewpoint neutral. Rather, it allows

the State to reject a proposal because of its viewpoint

and the potential to offend. Cf. Capitol Square Review

& Advisory Bd., 515 U.S. at 765-66 (plurality opinion)

(recognizing that it is not realistic to worry that others

may perceive that government endorsement “followed

directly from the fact that the forum was open aud

the religious activity privately sponsored,” noting that

erroneous conclusions do not count). Said another

way, Texas has reserved for itself the right to prohibit

a perspective. That is stifling private speech, not

exercising the prerogative of a government speaker.

See Rosenberger, 515 U.S. at 831 (“By the very terms

of the SAF prohibition, the University does not exclude

religion as a subject matter but selects for disfavored

treatment those student journalistic efforts with

religious editorial viewpoints. Religion may be a vast

area of inquiry, but it also provides, as it did here, a

specific premise, a perspective, a standpoint from

which a variety of subjects may be discussed and

considered. The prohibited perspective, not the gen-

eral subject matter, resulted in the refusal to make

third-party payments, for the subjects discussed were

otherwise within the approved category of publica-

tions.”).

By opening specialty license plates to private speech

through proposals, Texas has invited private speech

into a medium that Texas had previously reserved

to itself. Texas may not call the resultant speech its

own so that it may engage in viewpoint discrimination

against Respondents. Such a holding in no way

undermines the government’s regulatory interest in

using license plates as a means for identifying vehicles

and confirming proper registration. The government

retains that interest even on a private speech plate.

Indeed, under the limited public forum analysis,

States also retain the right to. select messages of their

own and endorse viewpoints—so long as the States

exercise the right exclusive of private speech.

Compare Pet’rs Br. at 41-46 (elaborating on risk of

“untenable consequences”); see generally Amicus Br. of

Ohio et al. (raising concerns regarding implications

of decision below for State specialty license plate

programs); Amicus Br. of Phil Berger and Tim Moore

(arguing legislatively-controlled specialty license

plates are government speech). This analysis also

avoids the concern raised in Summum of closing the

forum to speech altogether. States will be able to

include the same messages they have before, so long

as it is the State actually engaging in the speech,

whether through the legislative or executive branch.

Cf. Rosenberger, 515 U.S. at 834 (“A holding that

the University may not discriminate based on the

viewpoint of private persons whose speech it

facilitates does not restrict the University’s own

speech, which is controlled by different principle® ”).

Unce the States invite private parties to apply

to include their messages on State-issued license

plates on private vehicles, though, the States have

yielded the platform to other, quintessentially private

messages. ‘J'he channel of communication then

becomes analogous to a limited public forum and the

State must permit all viewpoints within the permitted

category.’® Said another way, Texas permits private

vehicle owners to purchase a “Fight Terrorism”

specialty license plate; vehicle owners can then

choose to espouse that view. By permitting a “Fight

Terroristn” plate, Texas cannot decide that that

viewpoint on that issue is the only viewpoint Texas

will offer for sale to the public. Texas has invited any

Texas’s reliance on Texas ex rel. Texas Transportation

Commission v. Knights of the Ku Klux Klan, 58 F.3d 1075 (5th

Cir. 1995). In that case, Texas excluded the KKK from the

State’s Adopt-a-Highway program because it did not want to

be associated with the KKK’s beliefs. The Adopt-a-Highway

program, however, is associated with State highways and signage

for the State program along the highway. Texas had not ceded

control over the signage as it has to nonprofit entities for specialty

license plates. The same is true for the monument in the public

park at issue in Summum. The medium of the speech was a

public park over which the city retained cortrol.

nonprofit entity to share the platform, and it cannot

discriminate among the views of nonprofit entities.

Nonetheless, Texas is always free to return to the

“plain-vanilla license plate,” or to reserve to itself the

right to create specialty plates, which would be

government speech subject only to Wooley. It could

also invite universities, or could invite only those who

wish to sponsor plates bearing Texas monuments.

Under this alternative framework, the result

reached by the Court of Appeals for the Fifth Circuit

in this case is correct. By allowing “any nonprofit

entity” to propose specialty license plates, Texas ceded

a level of discretion to those entities over the content

of that portion of the license plate. As a result, the

government surrendered the right to treat the license

plate, as a whole, as a channel for speech subject to

censorship. Texas’s effort to retain some control of

that messaging violated Respondents’—and others’—

First Amendment right to free speech.

CONCLUSION

By statute, Texas encouraged any nonprofit group to

express itself through specialty license plates, but it

gave itself the privilege of controlling the messages

conveyed, and it called the result “government

speech.” The Court of Appeals properly recognized

that it was not government speech at all, but the test

that the Court of Appeals employed is not reliably

consistent. Existing Court precedent, however,

provides an apt analogy for this case in the context of

limited public fora. By applying this framework, the

difference between government and public speech

becomes evident from the State’s invitation to the

public to speak. Once Texas invited any nonprofit to

sponsor specialty license plates, Texas forfeited the

right to exclude messaging from similar entities.

Texas can no longer pick and choose the messages that

may be conveyed on specialty license plates.

The decision of the Court of Appeals for the Fifth

Circuit should be affirmed, not because a “reasonable

observer” would conclude specialty license plates

constitute private speech, but because the medium is

not exclusively public and Texas has permitted private

parties to speak through that medium. By employing

principles of limited public fora, the Court can provide

guidance for distinguishing between government

speech and private speech that will provide the clarity

needed in this and various other contexts that the

parties and other amici have raised throughout the

briefing in this case. A clearer standard will benefit

all.

Respectfully submitted,