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

(1) Whether state issued license plates, and the messages on them, are government speech, and thus immune from viewpoint neutrality; and (2) whether Sons of Confederate Veterans license plates were discriminated against on the basis of viewpoint when the state rejected them, even though the confederacy was not portrayed negatively.

In August 2009, Respondent applied for a design of a specialty license plate that featured the Confederate flag. After holding two public meetings and receiving public comments on the design, Petitioner denied the application. Petitioner explained it rejected the application because the majority of public comments showed that the public found the design offensive, and that a “significant portion of the public associates the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”

Respondent brought suit in federal court, arguing that Petitioner violated its First Amendment right to freedom of speech when Petitioner denied its application. The district court granted summary judgment in favor of Petitioner, finding that Petitioner made a reasonable, content-based regulation of private speech. On appeal, the Fifth Circuit court overturned the decision holding that specialty license plates are an indication of private speech. Further, the court determined that Respondent’s decision to reject the license plate design was “impermissible” viewpoint discrimination.

The issues before the Court are (1) Whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality; and (2) whether Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the confederacy or the confederate battle flag in a negative or critical light.