Can the government control what your license plate says?
In this week’s “Elon Law Now” series, Constitutional Law scholar Scott Gaylord examines legal issues in a case coming before the U.S. Supreme Court on Monday, March 23, that addresses the ability of states to control messages on specialty license plates.
The Supreme Court’s decision in the case, Walker v. Texas Division, Sons of Confederate Veterans, could clarify whether messages on state-issued specialty license plates qualify as government speech and whether states have a right to limit what messages are offered on such plates.
Elon Law Professor Scott Gaylord is the author of a friend of the court brief in the case on behalf of the State of North Carolina. His scholarship about the legal issues in the case is cited in the petitioner’s merits brief in the case. Professor Gaylord’s commentary about the case follows:
“On Monday, March 23, 2015, the United States Supreme Court will hear oral argument in Walker v. Texas Division, Sons of Confederate Veterans, which requires the Court to clarify the proper test for government speech in the context of specialty license plates. Under the government speech doctrine, the government has a right to say what it wishes and to select the views that it wants to express. As a result, a government speaker can exclude unwanted or inconsistent messages on its specialty plates or in its other forms of speech activity.
“Determining the proper test for government speech, though, has proven difficult, as evidenced by the lower courts’ developing three different tests. In resolving this conflict, the Court should conclude, consistent with its prior decisions in Johanns and Summum, that the government is speaking if it has effective control over the speech—a condition that a majority of the Court is apt to find missing in Walker given Texas’s administratively controlled specialty license plate program.”
Professor Gaylord is lead counsel in Berger v. ACLU, a case being held over in the U.S. Supreme Court until after the Court decides Walker v. Texas Division, Sons of Confederate Veterans, Inc. Berger raises a similar government speech issue but in the context of legislatively controlled specialty plates instead of the administrative procedure at issue in Walker.