Name of case:​ WALKER V.

TEXAS DIVISION,SONS OF CONFEDERATE

VETERANS

Year: 2015

Facts of the case:

The Texas division of the Sons of Confederate Veterans is a nonprofit organization

that works to showcase the memory of soldiers who fought in the civil war. The

SCV applied for a special license plate which was issued by the Texas DMV. The

license plate had two confederate flags on it and the organization logo on it. The

DMV had stated that it may refuse a license plate if it contained any negative

comment that might offend others. The board who is in charge of approving the

license plate found that the license plate might offend others which caused them to

deny the application for the license plate. The Texas Sons of Confederate Veterans

sued in court claiming that their Fourteenth Amendment rights were violated. They

argued that their 1st amendment right was not applied in this case since the license

plate was a part of their freedom of speech and their application was denied. The

District Court disagreed and argued that the plates were private, non governmental

speech. The United States Court of Appeals for fifth circuit reversed and held that

TDMV denial was a form a viewpoint discrimination that discriminated against

Texas SCV’s view that the confederate flag is a symbol of independence and

heritage.

Legal Questions:

1.Do special license plates qualify as government speech?

2. Does denying the confederate flag from appearing on license plates discriminate

against viewpoints?

Holding

1. No, speciality license plates do not qualify as government speech.

2.Yes, denying the confederate flag from appearing on public license plates

does discriminate against viewpoints.

Arguments: Appellate

1. ~No, speciality license plates do not qualify as government speech. The Free

Speech Clause restricts government regulation of Government speech. The license

plate is indeed private speech because it would be going on the individuals car

which would make it their property. Therefore, if the government does interfere
with the approval of the plates then the TDMV would be violating the first

amendment.

~In the Johanns case, the United States Department of Agriculture (USDA) wanted

to encourage beef consumption that the government effectively controlled but the

government did not pay for the campaign itself; the government funded the speech

by charging a fee to cattle producers. The Supreme Court found that since it was

government speech, they could not be sued. It would be different if it were private

speech that were being funded through funds. In this case, the government does not

fund the license plate. It is private speech so the individual funds it. The

government solely approves the license plate. Because the government is not

funding the plate, it is not government speech. While the government has effective

control on the campaign because they funded the campaign this would still be

private speech because the individuals are paying for the campaign.

~In the Summum case, they argued whether or not religious monuments placed in

public areas are considered government speech. The Court held that a monument in

a park is government speech. However, the difference between these two cases is

that the monuments are in a public place which indicates public speech but

speciality plates are on the back of personal, transitory vehicles which would make

it private speech.
~In the Wooley case, the government could not force Jehovah witnesses to bear the

motto “Live Free or Die” on standard issued license plates because it would violate

their first amendment right. The supreme court has indicated that license plates,

even when owned by the government, implicate private speech interests because of

the connection of any message on the plate to the driver or owner of the vehicle.

The supreme court never decided weather the plates were government or private

speech. What they did recognize was that the messages on the individual plate is a

drivers free speech right and that citizens should not be forced to display mottos

and act as a mobile billboard. Therefore, the government could not force the

jehovah witness to bear the license plate.

~The SCV plates promotes their own messages by honoring the different types of

veterans. The state only manufactures the plates; they don't create or publish the

content that is on the plates so therefore if all they’re doing is creating the plates

and not the content, they shouldn't have much to do with the message on the plates.

The states endorses Texas SCV’s message on a daily basis and has apparent state

policy of honoring confederate veterans. The message that SCV is putting out is

not meant to be offensive; it is only meant to honor fellow veterans. The SCV has a

national holiday known as Confederate Heroes Day on January 19. It's not unusual

to see people dressed in their confederate attire on this day so what harm would
adding a license plates have? It's ironic that the state denied the confederate plate

but gives state employees the right to take off during the confederate hero holiday.

Not only that but stores sell confederate merchandise and and there are confederate

monuments throughout the state in public places.

~ No matter how the message on the plate is authored, no speech occurs until the

driver chooses the message, purchases the plate and affixes them to their car and

exits their driveway onto public roads. The driver has absolute control over

whether to express any message through a speciality plate.

~ Speciality plates designed by legislators may be government speech, but plates

designed by private individuals, businesses and nonprofits are not. Just because a

speech ​might ​be found offensive is not a valid excuse to limit the speech. The first

amendment has established that speech cannot be curtailed only because it's

offensive. This would be violating the others first amendment. If we banned every

speech simply because it was offensive, there would be no speech in the world

because someone is bound to not agree with the speech. For instance, atheists find

“one State under God part of the pledge offensive but that does not ban us from

saying the pledge just because some doesn't agree with some of the parts.
2. Yes denying the confederate flag from appearing on public license plates

does constitute viewpoint discrimination because by rejecting the license plate,

Texas DMV discriminated against those who view the flag as heroic. Rejecting the

confederate flag on the license plate endorses that the flag symbolizes racism. The

Texas DMV speciality license program allows private citizens to display their

private speech on a license plate. The first amendment prohibits Texas from

differentiating between speakers based on viewpoint discrimination. According to

the first amendment, it also permits citizens to debate the meaning of the flag

without the state intervening based on viewpoint. It has been stated that it “might

be offensive to any member of the public”. This is unconstitutional because it

denies citizens the first amendment right to free speech and lacks organization with

no objective standard.

1. Rosenberger, 515 U.S at 830. The supreme court defines viewpoint

discrimination by “an egregious form of content discrimination”. And in the

Rosenberger case an University of Virginia student asked the University for

funding for a christian program. However the university denied them the

money only because it "primarily promotes or manifests a particular belief in

or about a deity or an ultimate reality,". The question was did the university

violate the first amendment rights of the christian magazine staff by rejecting
 them the funding while giving funding to other magazines. The ruling was

yes University of Virginia did violate the first amendment because of the

content of the message and was viewpoint discrimination. The supreme

court also ruled that if they choose to promote speech they must treat all

speech equally. University of Virginia must provide the same finances to a

christian organization compared to any other student organization. That

relates to this case because if Texas can promote confederate day why cant

SVC promote their license plate? The Texas DMV is denying the first

amendment right due to the message the plate is conveying which is

unconstitutional because as stated in the Rosenberger case they must provide

the same equality if choose to give speech at all.

2. Perry Educ. Ass’n v. Perry local Educators’ Ass’n, 460 U.S 37, 46. In the

Perry case, the Perry Education Association had obtained rights to a school

mail system and Perry Local Education system was denied that access.

PLEA says that denying their members of the mailing system it is violation

of their first amendment. The question was does a local school board violate

the first amendment of those who are not school members. The ruling was it

did not violate their first amendment because the mail system was not public

forum and so PLEA had no right to access it. It relates to this case because
 the Texas DMV cannot regulate speech in effort to suppress expression only

because public officials oppose the speakers view. In short, denying the right

to having the licence plates is viewpoint discrimination because it is not

government speech. Private speech cannot be denied under the first

amendment due to personal opinion or views.

Conclusion

In conclusion we ask that this court reverse the decision of the lower court (United

States court of appeals for the fifth circuit) and rule in favor of the petitioner Sons

of Confederate Veterans on the grounds that speciality license plates do not grant

Government speech that is immune from any requirement of viewpoint

discrimination and denying the confederate flag from appearing on public license

plates does constitute viewpoint discrimination.