Court upholds license plate limits
But justices strike down an Arizona city’s restrictions on certain public signs.
WASHINGTON — The Supreme Court decided Thursday that states may restrict the messages appearing on specialty license plates, ruling that Texas authorities did not violate the 1st Amendment when they refused to issue a plate bearing a Confederate battle flag.
In a 5-4 decision, the justices said a state-issued license plate is “government speech,” not the private speech of a motorist.
“When the government speaks, it is not barred by the free-speech clause from determining what it says,” Justice Stephen G. Breyer said for the majority.
The decision frees state officials to permit or refuse potentially controversial plates with messages related to abortion, politics or the environment.
In a separate free-speech decision Thursday, the court made it harder for cities to regulate public signs, ruling officials may not discriminate against signs because of their content.
The justices voted 9 to 0 to strike down an unusual ordinance in Gilbert, Ariz., that had prohibited the Good News Community Church from posting signs to advertise the location of its Sunday services. At the same time, the town allowed large political signs alongside the same roads.
Justice Clarence Thomas played a crucial role in both 1st Amendment cases. In the Texas case, he cast a rare fifth vote on the side of the court’s four liberals to reject the Confederate license plate. While Thomas regularly supports 1st Amendment claims, he dissented alone in 2003 when the justices ruled that members of the Ku Klux Klan had a freespeech right to burn a cross in a Virginia farm field.
Thomas wrote the court’s opinion in the Arizona case, saying “content-based restrictions” on signs almost always violate the 1st Amendment. Cities may regulate the size of signs, he said, but they may not favor political signs over commercial signs or vice versa.
All nine justices agreed the Gilbert city ordinance was f lawed, but they disagreed on what sort of guidance to offer to ensure future sign regulations are legal.
The conservative justices joined Thomas’ opinion in Reed vs. Gilbert, but three of its liberals, in a concurring opinion, said he had gone too far. Justice Elena Kagan said it had “cast a constitutional pall on reasonable regulations” of signs.
The National League of Cities voiced alarm. The decision “wreaks havoc on the ability of local governments to implement sign code regulations that are responsive to the needs of the community,” said Clarence Anthony, the league’s chief executive officer.
But the Alliance Defending Freedom, which filed the suit on behalf of the Good News Community Church, said the court had upheld the principle that “speech discrimination is wrong,” regardless of the city’s reasons, said senior counsel David Cortman, adding: “It’s still the government playing favorites, and that’s unconstitutional.”
The specialty license plate decision followed nu- merous legal disputes over the last decade as more states allowed private groups to sponsor special plates. Motorists who are willing to pay a bit extra can display the plate of their choice. Most common are messages like “Keep Texas Beautiful” or “Mothers Against Drunk Driving.”
Controversy arose in some states over abortionrelated plates stating “Choose Life.” In response, abortion rights supporters asked for plates that would say “Respect Choice.”
Before Thursday, most lower courts had said the 1st Amendment prohibited states from censoring specialty plates because of their message. The Sons of Confederate Veterans sued in 2009 after Texas officials refused to issue a specialty plate bearing a Confederate battle flag. The Confederate Sons won in lower courts.
But while Breyer said motorists are free to put their favored message on a bumper sticker, they do not have a free-speech right to require the state to adopt their message on a state-issued plate. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer and Thomas. The case was Walker vs. Texas Division of the Sons of Confederate Veterans.
In dissenting, Justice Samuel A. Alito Jr. said people would surely know the message on a specialty plate represented the “private speech” of the car owner, not the government.
“The state of Texas has converted ... its specialty plates into little mobile billboards on which motorists can display their own messages,” he said. It is “blatant viewpoint discrimination” for officials to reject one group’s message as “offensive,” he said.
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Anthony M. Kennedy joined his dissent.
Texas Atty. Gen. Ken Paxton said the ruling “confirms that citizens cannot compel the government to speak, just as the government cannot compel citizens to speak.”
However, American Civil Liberties Union Legal Director Steven Shapiro called the ruling “a step backward for the 1st Amendment … by allowing states to censor private speech they find offensive.”
Still pending before the court is a related North Carolina case. The state issued a “Choose Life” plate, and abortion rights advocates sued, asking for a “Respect Choice” plate. The state lost in a lower court, but appealed.
A MONUMENT to Hood’s Texas Brigade, foreground, at the Texas Capitol in Austin, includes the Confederate f lag. The justices ruled 5 to 4 that license plates are “government speech” subject to state approval.
THE PROPOSED design for the Sons of Confederate Veterans license plate rejected by Texas officials.