This capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous. They make motorists happy, and they put money in a States coffers. But the precedent this case sets is dangerous. While all license plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.
If the State can do this with its little mobile billboards,could it do the same with big, stationary billboards? Suppose that a State erected electronic billboards along its highways. Suppose that the State posted some government messages on these billboards and then, to raise money, allowed private entities and individuals to purchase the right to post their own messages. And suppose that the State allowed only those messages that it liked or found not too controversial. Would that be constitutional? What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of todays precedent remain to be seen.
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The Texas specialty plate program also does not exhibit the selective receptivity present in Summum. To the contrary, Texass program is not selective by design. The Boards chairman, who is charged with approving designs, explained that the programs purpose is to encourage private plates in order to generate additional revenue for the state. Ibid., 58. And most of the time, the Board bases [its] decisions on rules that primarily deal with reflectivity and readability. Ibid. A Department brochure explains: Q. Who provides the plate design? A. You do, though your design is subject to reflectivity, legibility, and design standards. Id., at 67.b.
Pressed to come up with any evidence that the State has exercised selective receptivity, Texas (and the Court) rely primarily on sketchy information not contained in the record, specifically that the Boards predecessor (might have) rejected a pro-life plate and perhaps others on the ground that they contained messages that were offensive. See ante, at 11 (citing Reply Brief 10 and Tr. of Oral Arg. 4951). But even if this happened, it shows only that the present case may not be the only one in which the State has exercised viewpoint discrimination.
Texass only other (also extrarecord) evidence of selectivity concerns a proposed plate that was thought to create a threat to the fair enforcement of the States motor vehicle laws.
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The constitutionality of this Board action does not necessarily turn on whether approval of this plate would have made the message government speech. If, as I believe, the Texas specialty plate program created a limited public forum, private speech may be excluded if it is inconsistent with the purpose of the forum. Rosenberger, 515 U. S., at 829. Thus, even if Texass extrarecord information is taken into account, the picture here is different from that in Summum. Texas does not take care to approve only those proposed plates that convey messages that the State supports. Instead, it proclaims that it is open to all private messagesexcept those, like the SCV plate, that would offend some who viewed them. The Court believes that messages on privately created plates are government speech because motorists want a seal of state approval for their messages and therefore prefer plates over bumper stickers. Ante, at 1011. This is dangerous reasoning. There is a big difference between government speech (that is, speech by the government in furtherance of its programs) and governmental blessing (or condemnation) of private speech. Many private speakers in a forum would welcome a sign of government approval. But in the realm of private speech, government regulation may not favor one viewpoint over another.
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States have not adopted specialty license plate programs like Texass because they are now bursting with things they want to say on their license plates. Those programs were adopted because they bring in money. Texas makes public the revenue totals generated by its specialty plate program, and it is apparent that the program brings in many millions of dollars every year. See
http://www.txdmv.gov/reports-and-data/doc_download/5050specialty-plates-revenue-fy-1994-2014.
Texas has space available on millions of little mobile billboards. And Texas, in effect, sells that space to those who wish to use it to express a personal messageprovided only that the message does not express a viewpoint that the State finds unacceptable. That is not government speech; it is the regulation of private speech.
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Messages that are proposed by private parties and placed on Texas specialty plates are private speech, not government speech. Texas cannot forbid private speech based on its viewpoint. That is what it did here. Because the Court approves this violation of the First Amendment, I respectfully dissent.