Texas allows nonprofit
entities to sponsor specialty license plates. Apparently, the State has
approved over 350 specialty plates designed by private organizations including
ones bearing the names of fraternities and sororities, Universities, the Masons,
the Knights of Columbus, and slogans such as “I’d Rather Be Golfing.” The private
entities design the specialty plate, and pay rather large fees into the state
treasury. As Justice Alito’s dissent puts it: “[T]he State of Texas has
converted the remaining space on its specialty plates into little mobile
bulletin boards on which motorists can display their own messages.” P. 7
When the Sons of Confederate
Veterans proposed a specialty plate featuring a tiny Confederate battle flag,
the state rejected the design because many members of the general public found
the design offensive.
So is this a case of
government speech like Summum or
private speech rejected from a forum based upon its viewpoint?
Is this case more like the
park in Summum or more like the
Columbine wall from our hypothetical?
If you see a driver with a Texas license plate that says "I'd Rather be golfing" or "Join the Masons" do you view that message as that of the State of Texas, or of the car owner who purchased a specialty license plate? If you see a Notre Dame Football specialty plate do you believe the State of Texas has a new official favorite football program? Or just that some Notre Dame fans, who happen to live and drive in Texas, are flying their colors via the specialty license plate message?
So, who got it right--Justice Breyer and the majority (government speech thus no free speech claim) or Justice Alito and the dissent (private speech rejected on the basis of its "offensive" viewpoint)?
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