The State of Texas offers drivers a variety of specialty license plates through a specialty motor vehicle license program. In addition to specialty plates proposed by the Texas Legislature or by state designated private vendors, non-profit organizations may propose a specialty license plate. The Texas Division of the Sons of Confederate Veterans (SCV) proposed a specialty plate whose design contained the Confederate Battle Flag. When this proposal was presented to the Department of Motor Vehicles Board for approval, the Board voted unanimously against issuing the plate because the Confederate Battle Flag was offensive to many people and it was associated with organizations who expressed hatred towards groups or people that is demeaning to those groups or people. The SCV brought suit claiming the Board’s decision violated the Free Speech Clause of the First Amendment. The Federal District Court ruled in favor of the Board, but the Court of Appeals for the Fifth Circuit found that in refusing to approve the SCV plate design the Board engaged in constitutionally forbidden viewpoint discrimination.
The US Supreme Court reversed the decision of the Appeals Court finding that the Texas specialty license plate program is government speech, and that Texas was entitled to refuse to issue plates proposed by SCV featuring the Confederate Battle Flag. In its decision the Court noted that government statements and programs that take the form of speech do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. Rather the Court stated that government may constitutionally discriminate on the basis of viewpoint when it chooses to fund a program to advance certain permissible goals, because by advancing those goals this necessarily discourages alternative goals.
Looking at the history of such license plate programs, the Court observed that such plates have traditionally communicated messages from the States. In addition, license plates designs are often closely associated in the public mind with the issuing State. Finally, Texas maintained close control over the messages conveyed in its specialty plates. The Court concluded that license plates are non-traditional public forums for private speech and that Texas’s policies and the nature of the license program indicate that the State of Texas did not intend its specialty license to serve either as a designated public forum or a limited public forum.