No.
`In the Supreme Court of the United States
`_____________
`
`JOHN WALKER III, IN HIS OFFICIAL CAPACITY AS
`CHAIRMAN OF THE BOARD, ET AL., PETITIONERS
`v.
`TEXAS DIVISION, SONS OF CONFEDERATE
`VETERANS, INC., ET AL.
`_____________
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`_____________
`
`PETITION FOR A WRIT OF CERTIORARI
`_____________
`
`JONATHAN F. MITCHELL
`Solicitor General
` Counsel of Record
`
`ADAM W. ASTON
`ANDREW S. OLDHAM
`Deputy Solicitors General
`
`
`
`GREG ABBOTT
`Attorney General of Texas
`
`DANIEL T. HODGE
`First Assistant
` Attorney General
`
`OFFICE OF THE
` ATTORNEY GENERAL
`P.O. Box 12548 (MC 059)
`Austin, Texas 78711-2548
`jonathan.mitchell@
` texasattorneygeneral.gov
`(512) 936-1700
`
`

`
`
`
`
`
`QUESTIONS PRESENTEDQUESTIONS PRESENTEDQUESTIONS PRESENTED QUESTIONS PRESENTED
`
`
`
`1. Do the messages and symbols on state-issued spe-
`cialty license plates qualify as government speech im-
`mune from any requirement of viewpoint neutrality?
`2. Has Texas engaged in “viewpoint discrimination”
`by rejecting the license-plate design proposed by the
`Sons of Confederate Veterans, when Texas has not is-
`sued any license plate that portrays the confederacy or
`the confederate battle flag in a negative or critical light?
`
`(i)
`
`
`
`

`
`
`
`
`
`EDINGPARTIES TO THE PROCEPARTIES TO THE PROCEEDINGEDING EDING
`
`
`
`
`
`PARTIES TO THE PROCEPARTIES TO THE PROCE
`Petitioners John Walker III, Victor Vandergriff,
`Clifford Butler, Raymond Palacios, Jr., Laura Ryan, Vic-
`tor Rodriguez, Marvin Rush, and Blake Ingram were
`Defendants-Appellees in the court of appeals.1
`Respondents Texas Division, Sons of Confederate
`Veterans, Inc., Granvel J. Block, and Ray W. James were
`Plaintiffs-Appellants in the court of appeals.
`
`
`1 Pursuant to Supreme Court Rule 35, the petitioners note that John
`Walker III, Victor Vandergriff, Clifford Butler, Raymond Palacios,
`Jr., Laura Ryan, Victor Rodriguez, Marvin Rush, and Blake Ingram
`were sued in their capacities as public officials. Victor Vandergriff
`and Clifford Butler no longer hold office. They have been replaced
`by Robert Barnwell III and Cheryl Johnson. John Walker III re-
`placed Victor Vandergriff as Chairman of the Board.
`
`(ii)
`
`
`

`
`
`
`
`
`TABLE OF CONTENTSTABLE OF CONTENTSTABLE OF CONTENTS TABLE OF CONTENTS
`
`
`
`Questions presented ............................................................. i
`Parties to the proceeding .................................................... ii
`Table of authorities ............................................................. iv
`Opinions below ...................................................................... 2
`Jurisdiction ........................................................................... 3
`Statutory provisions involved ............................................. 3
`Statement .............................................................................. 3
`Reasons for granting the petition .................................... 10
`I. There is a deep, well-developed circuit split
`on whether specialty license plates qualify
`as government speech ............................................ 10
`II. The circuits are divided on whether a state
`engages in “viewpoint discrimination” if it
`rejects a specialty plate when it has not
`approved or
`issued a specialty plate
`espousing the opposite view .................................. 14
`III. The Fifth Circuit’s resolution of these issues
`will have untenable consequences ........................ 17
`IV. This case presents an ideal vehicle for
`resolving both First Amendment questions ........ 18
`Conclusion ........................................................................... 21
`
`(iii)
`
`
`

`
`
`
`
`
`
`
`
`
`TABLE OF AUTHORITIESTABLE OF AUTHORITIESTABLE OF AUTHORITIES TABLE OF AUTHORITIES
`
`Cases
`ACLU of N.C. v. Tata,
`742 F.3d 563 (4th Cir. 2014) ................................ 6, 13, 19
`ACLU v. Bredesen,
`441 F.3d 370 (6th Cir. 2006) ............................ 1, 7, 11, 19
`Agency for Int’l Dev. v. Alliance for an Open
`Society Int’l, Inc., 133 S. Ct. 2321 (2013) ................. 9–10
`Arizona Life Coalition v. Stanton,
`515 F.3d 956 (9th Cir. 2008) ................ 1–2, 13, 17, 18–19
`Boy Scouts of Am. v. Dale,
`530 U.S. 640 (2000) ......................................................... 10
`Choose Life of Ill., Inc., v. White,
`547 F.3d 853 (7th Cir. 2008) ...................... 1, 2, 13, 14, 16
`Henderson v. Stadler,
`407 F.3d 351 (5th Cir. 2005) .......................................... 18
`Hill v. Kemp,
`478 F.3d 1236 (10th Cir. 2007) ...................................... 18
`Hurley v. Irish-American Gay, Lesbian &
`Bisexual Grp. of Bos., 515 U.S. 557 (1995) .................. 10
`Johanns v. Livestock Marketing Ass’n,
`544 U.S. 550 (2005) ....................................................... 5–6
`Pleasant Grove City v. Summum,
`555 U.S. 460 (2009) ....................................................... 5, 6
`Roach v. Stouffer,
`560 F.3d 860 (8th Cir. 2009) ............................ 1, 2, 13, 17
`(iv)
`
`
`

`
`
`
`
`Rust v. Sullivan,
`500 U.S. 173 (1991) ........................................................... 9
`Sons of Confederate Veterans, Inc. v. Comm’r of
`Va. Dep’t of Motor Vehicles, 288 F.3d 610
`(4th Cir. 2002) ................................................... 1, 2, 16, 17
`Steel Co. v. Citizens for a Better Env’t,
`523 U.S. 83 (1998) ........................................................... 14
`Texas v. Knights of the Ku Klux Klan,
`58 F.3d 1075 (5th Cir. 1995) .......................................... 10
`Women’s Emergency Network v. Bush,
`323 F.3d 937 (11th Cir. 2003) .................................. 13, 20
`Wooley v. Maynard,
`430 U.S. 705 (1977) ......................................................... 10
`Statutes and Regulations
`28 U.S.C. § 1254(1) ............................................................... 3
`28 U.S.C. § 2101(c) ............................................................... 3
`Tex. Transp. Code § 504 ...................................................... 3
`Tex. Transp. Code § 504.601 ............................................... 4
`Tex. Transp. Code §§ 504.602–662 ..................................... 4
`Tex. Transp. Code § 504.6011(a) ......................................... 4
`Tex. Transp. Code § 504.801 ............................................... 4
`43 Tex. Admin. Code § 217.22 ............................................. 3
`43 Tex. Admin. Code § 217.28(i)(7) ..................................... 4
`43 Tex. Admin. Code § 217.40 ............................................. 4
`(v)
`
`
`

`
`
`
`
`
`Other Authorities
`Complaint, ACLU of N.C. v. Conti, 912 F. Supp. 2d
`363 (E.D.N.C. 2012) (No. 5:11-cv-470-F) ..................... 19
`Petition for a Writ of Certiorari, Berger v.
`ACLU of N.C., No. 14-35 (July 11, 2014) ............... 19, 20
`
`
`
`
`
`(vi)
`
`
`

`
`
`In the Supreme Court of the United States
`_____________
`
`No.
`JOHN WALKER III, IN HIS OFFICIAL CAPACITY AS
`CHAIRMAN OF THE BOARD, ET AL., PETITIONERS
`v.
`TEXAS DIVISION, SONS OF CONFEDERATE
`VETERANS, INC., ET AL.
`_____________
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`_____________
`
`PETITION FOR A WRIT OF CERTIORARI
`_____________
`
`This petition presents two circuit splits for the
`Court’s consideration. The first circuit split involves
`whether the messages and images that appear on state-
`issued specialty license plates qualify as government
`speech. The Sixth Circuit answered “yes.” See ACLU v.
`Bredesen, 441 F.3d 370, 375–77 (6th Cir. 2006). Five other
`courts—including the court of appeals in this case—have
`answered “no.” App. 16a; Sons of Confederate Veterans,
`Inc. v. Comm’r of Va. Dep’t of Motor Vehicles, 288 F.3d
`610, 621 (4th Cir. 2002); Choose Life of Ill., Inc., v. White,
`547 F.3d 853, 863 (7th Cir. 2008); Roach v. Stouffer, 560
`F.3d 860, 867 (8th Cir. 2009); Arizona Life Coalition v.
`
`(1)
`
`
`

`
`2
`Stanton, 515 F.3d 956, 965 (9th Cir. 2008). In the five cir-
`cuits that have rejected the government-speech argu-
`ment, a State cannot issue specialty license plates unless
`it maintains viewpoint neutrality among proposed li-
`cense-plate designs. In the Sixth Circuit, by contrast, a
`State may issue specialty license plates that espouse a
`particular viewpoint without undertaking a constitutional
`obligation to offer specialty plates that display the oppo-
`site viewpoint.
`There is also a circuit split over whether a State that
`rejects a specialty license plate can defend itself against
`a charge of “viewpoint discrimination” if the State has
`never issued or approved a license plate bearing a differ-
`ent viewpoint on the subject matter of the rejected li-
`cense plate. The Seventh Circuit answered “yes” in
`Choose Life of Illinois. See 547 F.3d 853 at 865. The court
`of appeals (along with three other circuits) answered
`“no.” App. 22a; Sons of Confederate Veterans, 288 F.3d at
`625–26; Roach, 560 F.3d at 870; Arizona Life Coalition,
`515 F.3d at 971–72.
`The State respectfully asks this Court to grant certi-
`orari on each of these questions.
`
`
`
`OPINIONS BELOWOPINIONS BELOWOPINIONS BELOW OPINIONS BELOW
`The opinion of the court of appeals is available at
`2014 WL 3558001. App. 1a–50a. The district court’s opin-
`ion, which upheld the State’s decision to exclude the con-
`federate battle flag from its license plates, is available at
`2013 WL 1562758. App. 53a–112a.
`
`
`
`

`
`3
`
`
`
`JURISDICTIONJURISDICTIONJURISDICTION JURISDICTION
`The court of appeals entered its judgment on July 14,
`2014. App. 51a–52a. The petitioners timely filed this peti-
`tion for a writ of certiorari on August 7, 2014. See 28
`U.S.C. § 2101(c). This Court has jurisdiction under 28
`U.S.C. § 1254(1).
`STATUTORY PROVISIONSSTATUTORY PROVISIONSSTATUTORY PROVISIONS INVOLVEDSTATUTORY PROVISIONS INVOLVEDINVOLVEDINVOLVED
`
`
`
`
`
`
`Pertinent statutory provisions are set forth in the ap-
`pendix to this petition. App. 115a–90a.
`
`
`
`STATEMENTSTATEMENTSTATEMENT STATEMENT
`The State of Texas requires state-issued license
`plates to be displayed on all registered motor vehicles.
`See Tex. Transp. Code § 504; 43 Tex. Admin. Code
`§ 217.22. For many years the State offered only a single
`style of license plate. But Texas now manufactures a va-
`riety of license-plate designs and offers choices to the
`drivers who must display a state-issued license plate on
`their motor vehicles.
`Drivers who choose to pay the normal vehicle-
`registration fee receive a plain-vanilla license plate with
`the State’s name and nickname (“The Lone Star State”),
`along with a randomly generated sequence of numbers
`and letters. But drivers willing to pay an extra fee can
`receive a “specialty” plate containing a unique design or
`message. Sales of these specialty plates generate reve-
`nue for state agencies as well as charitable and non-
`profit organizations that the State deems worthy of sup-
`port.
`There are different ways by which a specialty-plate
`design can become part of the State’s license-plate rep-
`
`
`
`

`
`4
`ertoire. Some plates are specifically authorized by the
`legislature. See Tex. Transp. Code §§ 504.601, 504.602–
`662. Texas also permits the Department of Motor Vehi-
`cles Board to design new specialty plates, either on its
`own initiative or in response to an application from a
`non-profit. See Tex. Transp. Code § 504.801. Finally, Tex-
`as sells plates though a private vendor, License Plates of
`Texas, LLC, dba MyPlates, which designs specialty
`plates and offers them to the public. See Tex. Transp.
`Code § 504.6011(a). Regardless of who designs or pro-
`poses a specialty plate, the Board must approve every
`license-plate design before it can be offered to the public.
`See 43 Tex. Admin. Code §§ 217.28(i)(7); 217.40.
`In 2009, the Sons of Confederate Veterans proposed a
`specialty-plate design featuring the Sons of Confederate
`Veterans’ logo. The logo consists of a square confederate
`battle flag surrounded on its four sides by the words
`“Sons of Confederate Veterans 1896”; the flag and its
`surrounding words are encapsulated together in an octa-
`gon. App. 191a (image of the proposed license-plate de-
`sign). The Board received hundreds of public comments
`opposing the plate, and opponents of the plate appeared
`at the Board’s meeting to voice their concerns. After
`hearing this testimony, the Board voted unanimously
`against issuing the plate, explaining that:
`The Board has considered the information and
`finds it necessary to deny this plate design ap-
`plication, specifically the confederate flag por-
`tion of the design, because public comments
`have shown that many members of the general
`public find the design offensive, and because
`
`
`
`

`
`5
`such comments are reasonable. The Board
`finds that a significant portion of the public as-
`sociate the confederate flag with organizations
`advocating expressions of hate directed toward
`people or groups that is demeaning to those
`people or groups.
`App. 69a.
`The Sons of Confederate Veterans sued, accusing the
`Board of violating the Speech Clause by rejecting their
`proposed license-plate design. The State responded that
`the government-speech doctrine allows a State to choose
`the messages and symbols that will appear on its special-
`ty license plates, and that in all events the Board’s deci-
`sion to reject the Sons of Confederate Veterans’ license-
`plate proposal was not unconstitutional “viewpoint dis-
`crimination.” The district court rejected the State’s first
`argument, concluding that the State’s specialty plates
`were a “nonpublic forum” in which the State must re-
`frain from “viewpoint discrimination.” App. 78a–92a. But
`the district court agreed with the State’s second argu-
`ment, and held that the Board did not engage in “view-
`point discrimination” by refusing to issue the plaintiffs’
`proposed license plate. App. 92a–103a. The district court
`therefore rejected the plaintiffs’ constitutional claims
`and entered judgment for the State. App. 114a.
`The court of appeals (over dissent) reversed the dis-
`trict court’s ruling. The majority first held that the mes-
`sages and symbols on state-issued specialty license
`plates are “private speech,” not government speech. The
`State had argued that Pleasant Grove City v. Summum,
`555 U.S. 460 (2009), and Johanns v. Livestock Marketing
`
`
`
`

`
`6
`Ass’n, 544 U.S. 550 (2005), establish that a State’s “final
`approval authority” and “effective control” over a pro-
`posed message makes the approved message govern-
`ment speech—even if it was designed or proposed by
`private entities. Summum, 555 U.S. at 472–73; see also
`Johanns, 544 U.S. at 561 (“The Secretary exercises final
`approval authority over every word used in every pro-
`motional campaign.”). The majority, however, concluded
`that Summum “did not base its holding on [the] City’s
`control over the permanent monuments,” but rather “fo-
`cused on the nature of both permanent monuments and
`public parks.” App. 10a–11a. As for Johanns, the majori-
`ty said only that “Summum, however, shows that ‘the
`Supreme Court did not espouse a myopic “control test”
`in Johanns.’” App. 27a (quoting ACLU of N.C. v. Tata,
`742 F.3d 563, 570 (4th Cir. 2014)).
`The majority then held that the appropriate “test”
`for government speech comes from Justice Souter’s
`in Summum:
`opinion concurring
`in the judgment
`“whether a reasonable and fully informed observer
`would understand the expression to be government
`speech, as distinct from private speech the government
`chooses to oblige.” App. 11a (quoting Summum, 555
`U.S. at 487 (Souter, J., concurring in the judgment)). The
`majority chose to apply Justice Souter’s test for gov-
`ernment speech even though it has never been endorsed
`by this Court, and despite language in Johanns that
`seems incompatible with Justice Souter’s proposed ap-
`proach. See Johanns, 544 U.S. at 564 n.7 (“[T]he correct
`focus is not on whether the ads’ audience realizes the
`Government is speaking”); id. (“As we hold today, re-
`
`
`
`

`
`7
`spondents enjoy no right not to fund government
`speech—whether by broad-based taxes or targeted as-
`sessments, and whether or not the reasonable viewer
`would identify the speech as the government’s.”) (em-
`phasis added). The majority then declared that “the dif-
`ferences between permanent monuments in public parks
`and specialty license plates on the back of personal vehi-
`cles convince us that a reasonable observer would under-
`stand that the specialty license plates are private
`speech.” App. 11a–12a.
`The majority also declined to follow the Sixth Cir-
`cuit’s opinion in ACLU v. Bredesen, 441 F.3d 370 (6th Cir.
`2006), which held that specialty license plates are gov-
`ernment speech immune from any requirement of view-
`point neutrality. The majority claimed that “the Sixth
`Circuit’s analysis cannot be reconciled with Supreme
`Court precedent, specifically Wooley.” App. 15a. The ma-
`jority also tried to distinguish Bredesen by noting that
`Tennessee had “passed an act specifically authorizing,
`creating, and issuing a ‘Choose Life’ specialty license
`plate.” App. 15a. But the majority did not deny that Tex-
`as’s decision to reject the plaintiffs’ license-plate pro-
`posal would have been upheld had the case been litigated
`in the Sixth Circuit. See Bredesen, 441 F.3d at 376 (“At
`least where Tennessee does not blatantly contradict it-
`self in the messages it sends by approving such plates,
`there is no reason to doubt that a group’s ability to se-
`cure a specialty plate amounts to state approval.”).
`Finally, the court of appeals held that the State en-
`gaged in impermissible “viewpoint discrimination” by
`rejecting the plaintiffs’ license-plate proposal. App. 24a.
`
`
`
`

`
`8
`The State had argued that its decision to keep the con-
`federate battle flag off its license plates was viewpoint-
`neutral because the State has not issued any license
`plate disparaging the confederacy, the confederate battle
`flag, or the views espoused by the Sons of Confederate
`Veterans. But the court of appeals rejected this argu-
`ment. The court of appeals did not deny that the State
`has never approved a license plate that espouses any
`point of view on the confederacy or the confederate bat-
`tle flag. But it said that “there is nothing in the Board’s
`decision that suggests it would exclude all points of view
`on the Confederate flag.” App. 22a (emphasis added).
`Then the court of appeals declared that “even if the
`Board were correct that its decision merely excluded
`multiple viewpoints on the meaning of the Confederate
`flag, that decision would be equally objectionable.” App.
`22a. In the court of appeals’s view, any decision to reject
`a specialty license plate “based on the speaker’s mes-
`sage” constitutes viewpoint discrimination. App. 23a
`(“[T]he state engaged in viewpoint discrimination when
`it denied a specialty license plate based on the speaker’s
`message.”); App. 23a (“Silencing both the view of Texas
`SCV and the view of those members of the public who
`find the flag offensive would similarly skew public debate
`and offend the First Amendment.”).
`Judge Smith dissented on the government-speech is-
`sue. App. 25a. Judge Smith first rejected the “reasonable
`observer test” that the majority used to distinguish gov-
`ernment speech from private speech. In Judge Smith’s
`view, “the ‘reasonable observer’ test demonstrably con-
`tradicts binding caselaw” from Johanns and Summum,
`
`
`
`

`
`9
`and he criticized the majority for “morph[ing] Justice
`Souter’s lone concurrence [in Summum] (and his dissent
`from Livestock Marketing) into law.” App. 27a; see also
`App. 29a (“If a ‘reasonable observer’ test were the law,
`then [Johanns] was incorrectly decided.”). Judge Smith
`also argued that Texas’s license plate program was anal-
`ogous to the situation in Summum and rejected the ma-
`jority’s efforts to distinguish that case. App. 29a.
`The majority opinion did not acknowledge or address
`several of the State’s most important arguments. First,
`the State had argued that a “no viewpoint discrimina-
`tion” rule would be untenable in the context of a special-
`ty license plate program, because it would mean that
`States that issue “Fight Terrorism” specialty plates
`would become constitutionally compelled to offer license
`plates expressing support for terrorism or terrorist or-
`ganizations. Many other specialty plates in Texas unde-
`niably promote certain viewpoints at the expense of oth-
`ers, such as “Stop Child Abuse,” “Mothers Against
`Drunk Driving,” “Animal Friendly,” and “Insure Texas
`Kids.” The majority opinion did not explain how its “no
`viewpoint discrimination” rule could allow Texas to con-
`tinue issuing these specialty plates without also offering
`plates that promote child abuse, drunk driving, animal
`cruelty, and messages opposing the State Children’s
`Health Insurance Program.
`Second, the State had argued that Rust v. Sullivan,
`500 U.S. 173 (1991), allows States to control the messag-
`es and symbols that are used within the scope of a gov-
`ernment program. See id. at 194; see also Agency for
`Int’l Dev. v. Alliance for an Open Society Int’l, Inc., 133
`
`
`
`

`
`10
`S. Ct. 2321, 2329–30 (2013). The majority opinion did not
`cite Rust and did not address the State’s claim that the
`text and logos on specialty license plates fall within the
`scope of a government program and therefore remain
`subject to the State’s control under Rust. And the major-
`ity did not conduct any analysis of what the scope of the
`State’s specialty license plate “program” might be.
`Third, the State had argued that it should have the
`same freedom as private individuals to disassociate from
`messages or viewpoints that it does not wish to convey.
`See, e.g., Hurley v. Irish-American Gay, Lesbian & Bi-
`sexual Grp. of Bos., 515 U.S. 557 (1995); Boy Scouts of
`Am. v. Dale, 530 U.S. 640 (2000); Wooley v. Maynard,
`430 U.S. 705 (1977). Just as the Constitution protects in-
`dividual license-plate holders from being forced to
`transmit “the State’s ideological message,” see Wooley,
`430 U.S. at 715, neither should a State be forced to con-
`vey a license-plate holder’s message by etching it onto a
`plate marked with the State’s name. The majority opin-
`ion did not address whether (or to what extent) a State
`may disassociate from messages or symbols that it does
`not wish to propagate. See generally Texas v. Knights of
`the Ku Klux Klan, 58 F.3d 1075 (5th Cir. 1995) (uphold-
`ing Texas’s exclusion of the Ku Klux Klan from its
`Adopt-a-Highway program).
` REASONS FOR GRANTINGREASONS FOR GRANTINGREASONS FOR GRANTINGREASONS FOR GRANTING THE PETITIONTHE PETITIONTHE PETITIONTHE PETITION
`
`
`
`
`
`
`
`
`
`
`
`DEVELOPED CIRCUIT I.I.I.I. THERE IS A DEEP, WELTHERE IS A DEEP, WELTHERE IS A DEEP, WELTHERE IS A DEEP, WELLLLL----DEVELOPED CIRCUIT DEVELOPED CIRCUIT DEVELOPED CIRCUIT
`
`
`
`SPLIT ON WHETHESPLIT ON WHETHER SPECIALTY LICENSE R SPECIALTY LICENSE
`
`SPLIT ON WHETHESPLIT ON WHETHE
`
`R SPECIALTY LICENSE R SPECIALTY LICENSE
`
`
`
`
`VERNMENT SPEECHPLATES QUALIFY AS GOPLATES QUALIFY AS GOVERNMENT SPEECHVERNMENT SPEECH VERNMENT SPEECH
`
`PLATES QUALIFY AS GOPLATES QUALIFY AS GO
`There is a 5-1 circuit split on whether a state-issued
`specialty license plate qualifies as “government speech.”
`
`
`
`

`
`11
`The Sixth Circuit held in Bredesen that specialty license
`plates are government speech, and rejected the ACLU’s
`argument that the State had created a “forum” for pri-
`vate speech that triggered a viewpoint-neutrality re-
`quirement. The Sixth Circuit also made clear that its
`government-speech holding extended beyond
`the
`“Choose Life” plates that the State’s legislature had au-
`thorized, and applied to all specialty-plate designs over
`which the State held final approval authority:
`[T]here is nothing implausible about the notion
`that Tennessee would use its license plate pro-
`gram to convey messages regarding over one
`hundred groups, ideologies, activities, and col-
`leges. Government in this age is large and in-
`volved in practically every aspect of life. At
`least where Tennessee does not blatantly con-
`tradict itself in the messages it sends by ap-
`proving such plates, there is no reason to doubt
`that a group’s ability to secure a specialty plate
`amounts to state approval. It is noteworthy
`that Tennessee has produced plates for re-
`spectable institutions such as Penn State Uni-
`versity but has issued no plates for groups of
`wide disrepute such as the Ku Klux Klan or the
`American Nazi Party. Plaintiffs’ position im-
`plies that Tennessee must provide specialty
`plates for these hate groups in order for it con-
`stitutionally to provide specialty plates sup-
`porting any institution. Such an argument falls
`of its own weight.
`Bredesen, 441 F.3d at 376–77.
`
`
`
`

`
`12
`The court of appeals specifically rejected Bredesen,
`declaring that “[t]he Sixth Circuit’s conclusion that spe-
`cifically license plates are government speech makes it
`the sole outlier among our sister circuits” and that “the
`Sixth Circuit’s analysis cannot be reconciled with Su-
`preme Court precedent, specifically Wooley.” App. 15a.
`The court of appeals also observed that Bredesen in-
`volved “facts different from those in the instant case,” as
`Bredesen involved a challenge to “Choose Life” specialty
`plates that the Tennessee legislature had specifically au-
`thorized. App. 15a. But the court of appeals never ex-
`plained how this could distinguish Bredesen—and this is
`not a tenable basis on which to distinguish Bredesen.
`Suppose that the Texas legislature had specifically au-
`thorized a specialty license plate denouncing the confed-
`eracy or portraying the confederate battle flag in a nega-
`tive light. There is nothing in the court of appeals’s opin-
`ion to suggest that this would have caused it to change
`its decision and hold that the denial of the plaintiffs’ pro-
`posed license-plate design was “government speech”
`immune from any requirement of viewpoint neutrality.
`And there is no basis for treating specialty plates author-
`ized by a state legislature differently from specialty
`plates authorized by a state agency. No matter which en-
`tity of a state government authorizes or approves a spe-
`cialty plate, the idea for the specialty plate is almost al-
`ways proposed or suggested by a person or interest
`group from outside the government.
`The Fifth Circuit is not alone in rejecting Bredesen’s
`government-speech holding. The Fourth, Seventh,
`Eighth, and Ninth Circuits have also issued rulings ex-
`
`
`
`

`
`13
`plicitly rejecting Bredesen. See ACLU of N.C. v. Tata,
`742 F.3d 563, 570 (4th Cir. 2014) (“The Sixth Circuit …
`held in Bredesen that Tennessee’s ‘Choose Life’ specialty
`plate constituted pure government speech. . . . For the
`many reasons discussed above, we must agree with the
`Seventh Circuit that ‘this conclusion is flawed …’”);
`Choose Life Ill., Inc. v. White, 547 F.3d 853, 863 (7th Cir.
`2008) (“We think Judge Martin [who dissented in
`Bredesen] has it exactly right.”); Roach v. Stouffer, 560
`F.3d 860, 867 (8th Cir. 2009) (“Notwithstanding the Sixth
`Circuit’s conclusion to the contrary, we now join the
`Fourth, Seventh and Ninth Circuits in concluding that a
`reasonable and fully informed observer would consider
`the speaker to be the organization that sponsors and the
`vehicle owner who displays the specialty license plate.”);
`Arizona Life Coalition, 515 F.3d at 963–68 (rejecting
`Bredesen and concluding that a “Choose Life” specialty
`plate represents “private speech,” not government
`speech).
`Six courts of appeals have now weighed in on this
`question, and they are divided 5-1 in favor of the view
`that messages and symbols on specialty license plates
`are private speech rather than government speech.2
`
`2 The Eleventh Circuit has suggested in dictum that specialty license
`plates are not government speech. See Women’s Emergency Net-
`work v. Bush, 323 F.3d 937, 945 n.9 (11th Cir. 2003) (“We fail to di-
`vine sufficient government attachment to the messages on Florida
`specialty license plates to permit a determination that the messages
`represent government speech.”). But the Eleventh Circuit’s opinion
`ultimately held that the plaintiffs lacked Article III standing to chal-
`lenge Florida’s “Choose Life” plates. See id. at 947 (“Appellants’
`(continued…)
`
`
`
`

`
`14
`There is little to be gained from awaiting further perco-
`lation. The opinion in Bredesen is thorough and scholarly,
`and five courts of appeals have issued opinions explain-
`ing why they reject that decision. The issue is ripe for
`this Court’s resolution.
`
`
`II.II.II.II. THE CIRCUITS ARE DIVTHE CIRCUITS ARE DIVTHE CIRCUITS ARE DIV
`IDEDTHE CIRCUITS ARE DIVIDEDIDED ON WHETHER IDED ON WHETHER ON WHETHER ON WHETHER AAAA
`
`
`
`
`
`
`
`
`ENGAGES ENGAGES
`
`
`STATESTATESTATE STATE
`
`IN IN
`
`
`
`“VIEWPOIN“VIEWPOIN“VIEWPOINT T T T “VIEWPOIN
`
`ENGAGES ENGAGES
`
`IN IN
`
`
`
`
`
`
`
`
`A SPECIALTY IF ITDISCRIMINATION” DISCRIMINATION” IF ITIF IT REJECTSIF IT REJECTSREJECTSREJECTS A SPECIALTY A SPECIALTY A SPECIALTY
`
`
`
`DISCRIMINATION” DISCRIMINATION”
`
`
`PLATE WHEN IT HAS NPLATE WHEN IT HAS NOT APPROVED OR OT APPROVED OR
`
`PLATE WHEN IT HAS NPLATE WHEN IT HAS N
`
`OT APPROVED OR OT APPROVED OR
`
`
`ISSUED A SPECIALTY PISSUED A SPECIALTY PLATE ESPOUSING THE LATE ESPOUSING THE
`
`ISSUED A SPECIALTY PISSUED A SPECIALTY P
`
`LATE ESPOUSING THE LATE ESPOUSING THE
`
`
`
`OPPOSITE VIEWOPPOSITE VIEWOPPOSITE VIEW OPPOSITE VIEW
`The Court should also grant certiorari to resolve
`whether Texas has engaged in “viewpoint discrimina-
`tion” by rejecting the plaintiffs’ license-plate proposal.
`The Fifth Circuit’s analysis of viewpoint discrimination is
`untenable and irreconcilable with the Seventh Circuit’s
`decision in Choose Life Illinois, Inc. v. White, 547 F.3d
`853 (7th Cir. 2008). The Court should grant certiorari to
`resolve this additional conflict among the circuits.
`The State had argued that its refusal to issue a con-
`federate license plate was viewpoint-neutral because it
`had not approved or issued a plate expressing any view-
`point on the confederacy, the confederate battle flag, or
`
`alleged injury therefore is not redressable by a decision of this
`court, and Appellants lack standing to bring their claims.”). We do
`not include the Eleventh Circuit’s statement in our circuit-split
`count, because federal courts cannot rule on the merits when they
`lack jurisdiction over a case. See Steel Co. v. Citizens for a Better
`Env’t, 523 U.S. 83, 94 (1998).
`
`
`
`
`
`

`
`15
`the views espoused by the Sons of Confederate Veterans.
`But the court of appeals brushed aside that argument:
`[E]ven if the Board were correct that its deci-
`sion merely excluded multiple viewpoints on
`the meaning of the Confederate flag, that deci-
`sion would be equally objectionable. . . . Silenc-
`ing both the view of Texas SCV and the view of
`those members of the public who find the flag
`offensive would similarly skew public debate
`and offend the First Amendment.
`App. 22a–23a. This analysis obliterates any distinction
`between viewpoint discrimination and content discrimi-
`nation, and renders a state guilty of “viewpoint discrimi-
`nation” whenever it excludes any subject matter from its
`specialty license plate program. See also App. 23a (“[A]
`state engage[s] in viewpoint discrimination when it de-
`nie[s] a specialty license plate based on the speaker’s
`message”).
`The Seventh Circuit’s decision in Choose Life Illinois
`rejects this untenable understanding of “viewpoint dis-
`crimination.” When Illinois refused to issue a “Choose
`Life” specialty plate, the Seventh Circuit held that this
`decision was viewpoint neutral because Illinois had not
`issued any specialty plate with abortion-related messag-
`es:
`
`Illinois has excluded the entire subject of abor-
`tion from its specialty-plate program. The Sec-
`retary argues this is a content-based but view-
`point-neutral restriction. We agree. . . . [T]he
`State has restricted access to the specialty-
`
`
`
`

`
`16
`plate forum on the basis of the content of the
`proposed plate—saying, in effect, “no abortion-
`related specialty plates, period.” This is a per-
`missible content-based restriction on access to
`the specialty-plate forum, not an impermissible
`act of discrimination based on viewpoint.
`Choose Life Ill., 547 F.3d at 865. True, the Seventh Cir-
`c