Walker v. Texas Division, Sons of Confederate Veterans
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Is a specialty license plate considered official government speech? And can the government restrict individual viewpoints even when they are highly offensive? To both questions, Becket said no. In 2009, the Texas Division of the Sons of Confederate Veterans submitted a design for a Texas specialty license plate featuring a Confederate battle flag. When the design was denied, the SCV sued in federal court. In 2015, Becket filed an amicus brief to the U.S. Supreme Court arguing that, although Becket does not agree with or support use of the Confederate flag, allowing government to restrict speech because it is offensive violates the First Amendment and endangers religious liberty.
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Case Summary
In Texas, drivers have the option of personalizing their vehicles with a specialty license plate. Many of these are designed and submitted by private organizations. In 2015, there were 80 license plates to choose from, with messages that ranged from: support for the University of Oklahoma and the Louisiana State University; advertisements for Mighty Fine Burgers, Freebirds Burritos, Dr. Pepper soda, and Re/Max real estate; and the statement that the driver would “Rather be Golfing.” Some license plates display viewpoints that some government entities oppose as offensive, such as Texas Trophy Hunters Association, “Choose Life,” or “One State Under God” (featuring three crosses).
In 2009, the Texas Division of the Sons of the Confederate Veterans (SCV) submitted an application for a license plate design featuring the Confederate battle flag and the name of its organization. When the Texas Department of Motor Vehicles Board rejected the design twice, the SCV sued the Board, and then lost in district court. The Fifth Circuit Court of Appeals reversed the decision and sided with SCV. The U.S. Supreme Court later agreed to hear the case.
On February 17, 2015, Becket, represented by prominent Free Speech expert and law professor Eugene Volokh, filed a friend-of-the-court brief before the Supreme Court arguing that, although Becket does not agree with or support the use of the Confederate flag, allowing government restriction of highly offensive speech violates the First Amendment. Although Texas retained the right to final approval authority, the State never once exercised this right until the SCV submitted its design. When it comes to private speech in the public forum, such as non-profit organizations using bus or subway advertisement space, viewpoint neutrality has always been a constitutional requirement. Becket argues that the government should not have broad authority to discriminate against private speech, however controversial, because such power in the hands of the state is dangerous for free speech and the free expression of religion.
The U.S. Supreme Court heard the case on March 23, 2015. On June 18, 2015, the Court ruled 5-4 that the specialty license program constituted government speech, and so the rule against viewpoint discrimination did not apply to the State.
Importance to Religious Liberty:
- Free Speech—Freedom of speech and freedom of religion go hand in hand. We believe in order for a free democracy to be preserved, we must allow a wide variety of voices and opinions to coexist, even conflict. The government doesn’t get to decide what speech is permitted based on whether it is offensive.
- Public Square—Messages that offend should not be scrubbed from our public spaces. Allowing differing viewpoints in the public square ensures a diverse marketplace of ideas—including religious ideas that offend many—which is the bedrock of a free society.