The Supreme Court recently granted cert in Walker v. Texas Division, Sons of Confederate Veterans, Inc. The issues presented in that case are whether specialty license plates are a form of government speech, and whether Texas engaged in viewpoint discrimination when it rejected the SCV’s plate design featuring the Confederate battle flag. In a 2011 article in the Tulane Law Review, I wrote about license plate speech more extensively from a perspective slightly different than that presented in the Walker v. SCV case. My focus was on the question of Establishment Clause responsibility for religious messages on license plates. But the issues raised overlap significantly.
Imagine a state decides to display religious symbols or text on a license plate. South Carolina, for instance, created a specialty plate featuring a stained glass window with a superimposed cross and the words “I Believe.” Efforts to create a plate with a similar design failed in Florida. A federal court ultimately permanently enjoined South Carolina from issuing the plates.
Does a state’s specialty license plate program create a public forum for speech? If religious messages are displayed on the license plates, is the message purely private religious speech, or is it attributable to the state for Establishment Clause purposes?
Determining responsibility for speech is important for two reasons: to address rights to forum access and to identify whether Establishment Clause limits apply. Private speakers may demand rights of access to a public forum, and in such a forum they have rights to articulate their message free from viewpoint restrictions. As a free speech matter, the question of the existence of a forum is constitutionally significant when a state allows one private group to display a religious message on its property but excludes another. If the speech is government speech, however, the Free Speech Clause does not apply. The government alone may determine its message to the exclusion of all others. If permanent monuments in a park, for example, are government speech, the city may choose which ones to include. That was the scenario in the Pleasant Grove City v. Summum case that features prominently in the Fifth Circuit’s opinion in Walker v. SCV. And if the government speech has religious content, it may run afoul of the Establishment Clause.
In the license plate context, the two faces of responsibility for speech are especially salient. Are specialty license plates a public forum? Do Establishment Clause limits apply to religious messages on specially license plates?
Courts traditionally analyze speech as either government speech or private speech. Scholars have proposed (though the Fifth Circuit in the SCV case rejected) an additional category, that of mixed speech. I agree that the law should recognize as distinctive instances in which private and public actors jointly participate in speech, but I am not entirely convinced that a categorical approach is the way to go. Instead, I suggest we might think of mixed speech as a continuum between the end points of purely governmental and purely private speech. Within this conceptual framework, all speech in which public and private actors participate is mixed speech. We can assign responsibility for the speech to one or the other by considering who has effective control over the message. But where effective control over the speech is shared equally between them, a subset of mixed speech becomes “truly hybrid” speech. The equal distribution of effective control distinguishes “truly hybrid speech” from mixed speech; thus, the amount of speech classified as “truly hybrid” is smaller than the amount of speech that is “mixed.” Not all mixed speech, characterized by simultaneous participation of private and government actors, results in speech where responsibility is indeterminable. Not all government participation has the potential to turn private speech into the hybrid kind of mixed speech, especially if the degree of government involvement is small. Consequently, if we take this noncategorical approach, more private speech enjoys the full protection of the First Amendment’s Free Speech and Free Exercise clauses than would be the case if all mixed speech were subjected to a lower standard of review in a separate “mixed” category. As a result of its position on the mixed speech continuum, midway between purely governmental and purely private speech, truly hybrid speech is sufficiently private for forum access purposes and, at the same time, sufficiently governmental for Establishment Clause responsibility purposes.
In approving specialty license plates, different states follow different procedures. Generally, there must be a certain level of public demand for a specialty plate, and the ultimate decision whether to issue such plates lies with the state, either through approval by the state legislature (as was the case in the South Carolina “I Believe” design) or in the administrative process (as, for example, in the Texas SCV case now before the U.S. Supreme Court). It is due to a complex participation scheme that control over the message is difficult to determine. Throughout the life of the message, control shifts back and forth between the government and private individuals, and it is likely that the result is “truly hybrid” speech where effective control is indeterminable. Under my analysis, Establishment Clause limits apply to the “I Believe” design. But what does the framework say about the free speech side in SCV? If the speech is sufficiently private for forum access purposes, the state can deny the license plate design only in a viewpoint-neutral manner. Thus, the Seventh Circuit in Choose Life Illinois, Inc. v. White determined that the state may exclude an entire subject from its specialty license plate program—in this case, abortion. (But some scholars are willing to go even further, asserting a strong governmental interest in prohibiting racist messages.)
Ultimately, the seemingly mundane topic of license plate speech reveals the complexity of speech in which the government and private actors participate.