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`JOHN WALKER, III, IN HIS
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`TEXAS DIVISION, SONS OF
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`CONFEDERATE VETERANS, ET AL.
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` Washington, D.C.
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` Monday, March 23, 2015
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` The aboveentitled matter came on for oral
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`argument before the Supreme Court of the United States
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`at 10:03 a.m.
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`APPEARANCES:
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`SCOTT A. KELLER, ESQ., Solicitor General, Austin, Tex.;
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` on behalf of Petitioners.
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`R. JAMES GEORGE, ESQ., Austin, Tex.; on behalf of
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` Respondents.
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`TEXAS DIVISION, SONS OF
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` Washington, D.C.
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` Monday, March 23, 2015
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` The aboveentitled matter came on for oral
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`argument before the Supreme Court of the United States
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`at 10:03 a.m.
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`APPEARANCES:
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`SCOTT A. KELLER, ESQ., Solicitor General, Austin, Tex.;
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` on behalf of Petitioners.
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`R. JAMES GEORGE, ESQ., Austin, Tex.; on behalf of
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` Respondents.
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`Official Subject to Final Review
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` C O N T E N T S
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`2
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`ORAL ARGUMENT OF
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`PAGE
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`SCOTT A. KELLER, ESQ.,
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`On behalf of the Petitioners
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`R. JAMES GEORGE, ESQ.,
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` On behalf of the Respondents
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`SCOTT A. KELLER, ESQ.
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` On behalf of the Petitioners
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` P R O C E E D I N G S
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` (10:03 a.m.)
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` CHIEF JUSTICE ROBERTS:
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`We will hear
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`argument first this morning in Case No. 14144, John
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`Walker v. The Texas Division of the Sons of Confederate
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`Veterans.
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` Mr. Keller.
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` ORAL ARGUMENT OF SCOTT A. KELLER
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` ON BEHALF OF PETITIONERS
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` MR. KELLER:
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`Thank you, Mr. Chief Justice,
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`and may it please the Court:
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` Messages on Texas license plates are
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`government speech. The State of Texas etches its name
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`onto each license plate and Texas law gives the State
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`sole control and final approval authority over
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`everything that appears on a license plate. As in
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`Summum, Texas is not abridging any traditional free
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`speech rights. Motorists remain free to speak in all
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`sorts of ways, including on their cars through a bumper
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`sticker right next to a license plate, or a carsize
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`paint job or a window decal.
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` But the First Amendment does not mean that a
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`motorist can compel any government to place its
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`imprimatur on the Confederate battle flag on its license
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`plate.
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` JUSTICE GINSBURG:
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`Well, one of one of
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`the problems with the scheme is it's a nebulous
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`standard: Would it be regarded as offensive to many
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`people? I mean, is it government speech to say "Mighty
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`fine burgers" to advertise a product?
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` MR. KELLER:
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`The government yes, Justice
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`Ginsburg. The government is allowed to choose the
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`messages that it wishes to. It's simply because it has
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`approved parochial messages or has endorsed messages or
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`is accepting and generating revenue. To get to
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`propagate those messages doesn't defeat the fact that it
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`is government speech.
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` When the Library of Congress, for instance,
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`takes sponsorship from The Washington Post or Wells
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`Fargo for the National Book Festival, that's still a
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`government speech when they then put it on their
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`website.
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` JUSTICE ALITO:
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`Suppose Texas erected 500
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`electronic billboards around the State, and on those
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`billboards they posted some government messages, wear
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`your seatbelt when you're driving, for example. But
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`then at the bottom people could put a message of their
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`choice. Would that be government speech?
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` MR. KELLER:
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`Justice Alito, I think the
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`portion that the government had final approval authority
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`and sole control over, that would be government speech.
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`If the government, though, doesn't have sole control or
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`final approval authority over another portion, I think
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`that could be
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` JUSTICE ALITO:
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`No, the bottom, the
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`government has the same kind of approval authority that
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`it has here. It'll allow people to say inoffensive
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`things, but if they say something that's that's
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`offensive, then they won't allow that. That would be
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` MR. KELLER:
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`It would be government speech
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`under I think the best reading of both Summum and
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`Johanns together is precedent; that you have final
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`approval authority when the government isn't abridging
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`other traditional free speech rights.
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` But even if that weren't the test
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` JUSTICE SOTOMAYOR:
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`But, I'm sorry. I don't
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`understand. Almost anything the government does, it has
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`final authority to veto. Whether it's a school or a
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`government website, it always retains the authority to
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`say no. The issue is when can it say no
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`constitutionally.
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` So I don't think it's merely that.
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`And in
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`Summum, the government actually created the words that
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`were that were being advertised. So isn't that
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`substantially different? Because the government's not
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`creating these words.
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` MR. KELLER:
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`Well, Justice Sotomayor, if you
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`went on Summum, the Court indicated that
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` JUSTICE SOTOMAYOR:
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`That's the monument
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`case. I'm talking about Johanns.
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` MR. KELLER:
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`That that that's right.
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`And in Summum though, the a private organization, the
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`Fraternal Order of Eagles, put its name on the monument.
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`It created the message; it then donated it to the park.
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`In Johanns, yes, the government did create a program to
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`espouse the message, "Beef, it's what's for dinner," but
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`even then, as the Court recognized the Secretary of
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`Agriculture didn't write ad copy. So it's not as if the
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`government had control I'm sorry, the government had
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`control, it just was not at every step of the way saying
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`this is how the message must be, but at the end of the
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`day it had final approval authority.
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` But to return to Justice Alito's
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`hypothetical and what the test should be, the test can
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`include other elements. And even if Summum and Johanns
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`could be read as just a twopart test, for all sorts of
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`reasons, this is government speech here. Texas has its
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`name on every license plate. There's a formal process
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`here of notice and comment, and the board takes a public
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`vote before approving any specialty license.
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` JUSTICE KAGAN:
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`Mr. Keller
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` JUSTICE KENNEDY:
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`Well, do you want do
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`you want us to hold that because it's government speech,
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`the government can engage in viewpoint discrimination?
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`Is that what I'm supposed to write?
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` MR. KELLER:
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`That's right, Justice Kennedy.
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`And the Court has recognized that in Summum and in
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`Johanns.
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` JUSTICE KAGAN:
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`And does that have any
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`limits, Mr. Keller? I mean, suppose somebody submitted
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`a license plate to Texas that said, "Vote Republican,"
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`and and Texas said, yes, that's fine. And then the
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`next person submitted a license plate to Texas and it
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`said, "Vote Democratic," and Texas said, no, we're not
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`going to approve that one. What about that?
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` MR. KELLER:
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`Yeah, Justice Kagan, I don't
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`think our position would necessarily allow that, but I
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`think that doesn't have
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` JUSTICE KAGAN:
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`But why why wouldn't it
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`allow that?
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` MR. KELLER:
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`Because the Establishment
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`Clause, the Equal Protection Clause, Due Process Clause,
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`other independent constitutional bars could apply. As
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`Justice
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` JUSTICE KAGAN:
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`Well, this is not an
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`Establishment Clause issue. So I'm I'm curious as to
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`why what what constitutional constraints you think
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`there are and how they would play out as to the kind of
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`hypothetical I just gave you.
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` MR. KELLER:
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`Absolutely, Justice Kagan. I
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`think partisan speech, candidate speech, as Justice
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`Stevens' concurrence in Summum recognized and Justice
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`Scalia's concurrence in Finley recognized, there could
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`be other constitutional bars such as the Equal
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`Protection Clause. The Oregon Supreme Court
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` JUSTICE SCALIA:
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`I think all you have to say
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`is is whatever prevents Texas itself in all of its
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`other activities, never mind license plates, from saying
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`vote Republican, right?
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` MR. KELLER:
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`Absolutely. But
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` JUSTICE SCALIA:
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`Then you put the same
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`question: What stops Texas from from saying, in all
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`of its election literature that it passes out, vote
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`Republican? I think something prevents that. And
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`whatever prevents that would prevent it on the license
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`plates, too. No?
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` MR. KELLER:
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`That's correct, Justice Scalia,
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`which is why that issue is is one of government
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`speech in general. But the Court has recognized
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`unanimously that the government can speak, that the
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`government speech doctrine does not allow or sorry,
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`that the government can speak even if it is going to
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`take certain viewpoints, and not
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` JUSTICE KENNEDY:
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`Well, what what's the
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` what case do you want me to read to show that the
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`government can engage in viewpoint discrimination when
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`it's its own speech? It's the monument cases?
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` MR. KELLER:
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`Yes, Justice Kennedy. Summum
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` JUSTICE KENNEDY:
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`Is this is this a case
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`where the State, the government, has aided in creating a
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`new kind of public forum? People don't go to parks
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`anymore. If the government bought 17 soapboxes to put
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`around the park, that's government property, but the
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`government can't prohibit what kind of speech goes on
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`there. Why isn't this a new public forum in a in a
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`new era?
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` MR. KELLER:
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`I don't think it's a public
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`forum for private speech for for various reasons.
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`The Court has never recognized a public forum for
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`private speech when the government places its name on
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`the message, when it completely controls the message in
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`the forum, when it is receiving notice and comment from
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`the public
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` JUSTICE KENNEDY:
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`No, but that's circular.
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`The whole question is whether you whether you can
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`control the message. You're assuming the answer to the
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`question.
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` MR. KELLER:
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`Well, Justice Kennedy, I think
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`the Court has looked at governmental intent to determine
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`whether there's a public forum for private speech. And
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`for all of the reasons that we're pointing out that this
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`is government speech, it is the same it is the flip
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` CHIEF JUSTICE ROBERTS:
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`I'm not quite sure
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`why it's government speech since it's there's no
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`clear, identifiable policy at least it's arguable
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`there's none that the State is articulating. I mean,
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`they're only doing this to get the money.
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` MR. KELLER:
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`Mr. Chief Justice, a singular
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`programmatic message I don't think can be part of any
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`administrable test for government because government
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`must speak in all sorts of ways. The Court in Summum
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`indicated that the 52 structures in New York Central
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`Park were all government speech, and yet, those it's
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`a wide array of messages, such as Alice in Wonderland.
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` CHIEF JUSTICE ROBERTS:
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`Well, but it's
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`here, I mean, you you could have conflicting
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`messages. I mean, what is the government policy between
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`allowing University of Texas plates and University of
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`Oklahoma plates?
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` MR. KELLER:
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`The State of Texas can
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`absolutely promote the educational diversity of its
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`citizenry.
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` CHIEF JUSTICE ROBERTS:
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`Well, okay. What's
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`its policy between permitting "Mighty fine burger"
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`place plates and, you know, "Pretty good burgers"
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` MR. KELLER:
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`Mr. Chief Justice, as a an
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`Austin, Texas establishment, the State of Texas, if it
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`wanted to, could promote that message. But even if
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`Mighty Fine Burgers weren't a Texas establishment, Texas
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`is allowed to endorse speech. And just because it would
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`be generating revenue
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` CHIEF JUSTICE ROBERTS:
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`So it's endorsing
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`speech?
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` MR. KELLER:
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`It is the government's speech.
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`The analogy would be an endorsement of such as a
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`professional athlete. The professional athlete, for
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`instance, places a logo or a product or otherwise on
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`some apparel that the athlete is wearing. That's still
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`the speech of the athlete.
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` CHIEF JUSTICE ROBERTS:
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`Right. But the
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`athlete doesn't advertise, you know, Nike on his jersey
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`and Adidas on his shoes. You can see one message. That
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`athlete is endorsing this brand. But Texas will put its
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`name on anything and the idea that this is their speech,
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`again, the only thing that unifies it is they have
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`they get money from it.
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` MR. KELLER:
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`Mr. Chief Justice, I don't
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`think Texas
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` JUSTICE BREYER:
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`I bet he would if he could.
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` MR. KELLER:
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`The State of Texas does not put
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`its name on everything. It it follows a formal
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`process with a public vote
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` CHIEF JUSTICE ROBERTS:
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`Well, it does. You
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`told me yourself. You began, you said its name is
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`etched on the license plate.
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` MR. KELLER:
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`Sir, every message that is
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`actually appearing on a license plate, yes, that is the
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`State's message. But that
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` JUSTICE GINSBURG:
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`And how many of them are
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`there? How many
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` MR. KELLER:
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`At as of the beginning of
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`this month, there were 438 specialty plates, 269 of
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`which were available for general public use.
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` JUSTICE KAGAN:
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`How many have you
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`disapproved other than this one?
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` MR. KELLER:
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`We address that argument in our
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`reply brief at pages 9 to 11. Texas has sorry.
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`Texas agencies have denied about a dozen plates. Some
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`of that information is in the record, some of it is not.
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` JUSTICE KAGAN:
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`And in in which
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`what other ones have you disapproved?
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` MR. KELLER:
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`The board's predecessor denied
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`a pro life plate. The board itself denied a Texas DPS
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`Trooper's Foundation plate, and the board's predecessor
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`also denied about a dozen other plates.
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` Also, the
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` JUSTICE KAGAN:
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`All on the ground of
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` MR. KELLER:
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`The the information is not
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`clear as to what the grounds for those denials were.
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` The legislature itself has also repealed
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`multiple specialty plates that it also had created.
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`So so this shows that
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` JUSTICE KAGAN:
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`And could could I ask,
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`Mr. Keller, if you go down to Texas and you just stare
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`at license plates, are most of them just the standard
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`license plate and then these 400 license plates you see
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`very carefully, or do most people actually have one of
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`these specialty plates?
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` MR. KELLER:
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`While there is a a wide
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`range, I believe most plates are still the standard
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`plate and
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` JUSTICE KAGAN:
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`But there's a very
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`there's a substantial percentage that are not? There
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`it's not by any means unusual to see a specialty plate?
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` MR. KELLER:
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`It would not be unusual to see
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`a specialty plate in the State of Texas. But the State
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`of Texas, by etching its name on it, can keep in control
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`of what appears on license plates. It's still the
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`State's message. All
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` JUSTICE ALITO:
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`What is the limits of this
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`argument? That's what concerns me. And your answer to
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`my billboard question was disturbing, but suppose people
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`still did go to parks, and the State had an official
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`State soapbox at the park, and every once in a while a
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`State official would mount the soapbox and, say, give
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`some official State announcement. But other times
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`people who pay the fee would be allowed to go up there
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`and say something that they wanted, provided that it was
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`approved in advance by the State. Would that be
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`official State speech?
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` MR. KELLER:
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`Justice Alito, I think there
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`we're starting to cross over into a situation what this
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`called what this Court in Summum called of a
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`subterfuge, that if you are abridging traditional free
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`speech rights, if you're limiting access to a
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`traditional public forum, then that would be an instance
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`where government speech is crowding out speech and
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`therefore it raised constitutional
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` JUSTICE ALITO:
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`Well, what does
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` JUSTICE KENNEDY:
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`Why hasn't this become
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`traditional? I don't mean to interrupt Justice Alito,
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`but we're on, I think, on the same point. Why hasn't
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`this become traditional now that you have allowed it?
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`You have opened up a new forum.
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` MR. KELLER:
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`Justice Kennedy, I don't think
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`it has become traditional because Texas has always
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`maintained control over its plates, and it has always
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`exercised editorial control. So unlike a park which has
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`been held since time immemorial for the benefit of the
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`public to speak, license plates are a regulatory
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` JUSTICE KENNEDY:
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`Well, do do you want us
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`to say that public the public fora cannot evolve over
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`time according to and people don't go to parks
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`anymore. They drive.
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` MR. KELLER:
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`Justice Kennedy, absolutely.
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`The the public traditional public forum can evolve
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`over time. But the indicia of a traditional public
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`forum still has to be one that is open, and and Texas
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`has not opened license plates. If other States wanted
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`to
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` JUSTICE KAGAN:
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`But in a world in which you
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`have approved 400 license plates and they are pretty
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`common in the State of Texas and you have only
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`disapproved a very select few, you know, it does seem as
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`though you've basically given relinquished your
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`control over this and, you know, made it a people's
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`license plate for whatever private speech people want
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` MR. KELLER:
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`Justice Kagan, I think it would
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`be odd to say that it it's private speech when the
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`board is taking a public vote and receiving notice and
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`comment, a very a governmental function of when the
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`government wants to act, and then it is placing its name
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`on the license plate. When the government is placing
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`its name on the license plate, it is accepting and
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`and signifying that this is the government's message,
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`and you never
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` JUSTICE GINSBURG:
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`Does does it have
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`notice and comment for for every one of the 430odd
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`that it's approved? Every time there is a request, does
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`it is there a notice and comment procedure?
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` MR. KELLER:
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`If it's a legislaturecreated
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`plate, the legislature, of course, would do it and then
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`there wouldn't be an agency notice and comment
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`proceeding. But under the existing law, notice and
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`comment would be required for every specialty plate
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`approved by the agency, which is all specialty plates
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`that are not approved by the legislature.
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` I I think a good analog to this case
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`would the U.S. Postal Services' postage stamp program.
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`There, the U.S. is placing its name directly on the
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`medium. Thousands of stamps have been issued in the
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`past, and yet there is also private input that is
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`allowed on to what those postage stamps are going to
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`look like. And just as it respondents can speak in
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`all sorts of ways on a bumper sticker right next to a
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`license plate or on a in the envelope on which a
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`stamp would appear, that doesn't mean that someone is
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`allowed responsive speech to whatever appears on a stamp
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`or whatever appears on a license plate.
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` JUSTICE SCALIA:
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`Does Texas also have
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`specialty plates insofar as the the letters or
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`numbers of the plates are concerned? I mean, can you
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`get a license plate that says "Hot Stuff" or something
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`like that?
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` MR. KELLER:
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`Justice Scalia, we do have
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`personalized plates in Texas.
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` JUSTICE SCALIA:
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`And are those censored? I
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`mean, can you can you use a dirty word on those?
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` MR. KELLER:
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`The the speech there is
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`controlled completely by the State of Texas.
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` JUSTICE SCALIA:
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`I would think so.
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` MR. KELLER:
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`Texas, and this is not in the
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`record, but
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` JUSTICE SCALIA:
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`Even though the individual
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`selects "Hot Stuff" or whatever other message he wants
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`to put. So I guess if this is not allowed, we can't
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`Yes, Justice Scalia.
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` JUSTICE SCALIA:
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`Right? I mean, dirty words
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`That's right. Justice Scalia,
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`I the Court's holding in this case, I believe, would
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`directly affect the personalized plates. And when
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` CHIEF JUSTICE ROBERTS:
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`Well, I I'm not
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`sure your analogy to the postal service really works
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`because none of us can imagine the postal service having
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`commercial advertisements on its stamps. One of the
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`a license plate's here for RE/MAX Realty. You are not
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`going to see that on a postal stamp.
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` MR. KELLER:
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`Mr. Chief Justice, it may be
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`true that the U.S. Postal Service has not chosen to
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`engage in that type of expression, but I don't think
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`that defeats the fact that this is still government
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`speech. For all of the indicia the Court have
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`recognized in Summum and Johanns, and even Justice
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`Souter's dissent in Johanns, that wanted it was
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`looking for government disclosure, we have that here.
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`We have Texas's name etched onto the license plate.
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` Also untenable consequences could fall from
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`a an an opinion recognizing that Texas has to
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`offer responsive speech. Texas should not have to allow
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`speech about AlQaeda or the Nazi party simply because
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`it offers a license plate propagating the message "Fight
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`Terrorism".
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` CHIEF JUSTICE ROBERTS:
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`Well, but there is
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`an easy answer to that, which is they don't have to get
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`in the business of selling space on their license plates
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`to begin with. If you don't want to have the AlQaeda
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`license plate, don't get into the business of allowing
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`people to buy their you know, the space to put on
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`whatever they want to say.
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` MR. KELLER:
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`Mr. Chief Justice, I believe,
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`though, that would be an answer to all of the government
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`speech cases. And I in Summum for instance, the
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`the Court didn't say, Well, if you don't want to accept
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`the Summum monument, just don't allow monuments. And
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`that is because government is allowed to select the
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`messages that it wants to propagate and it's allowed to
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`speak in medium that it chooses.
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` CHIEF JUSTICE ROBERTS:
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`Well, that might be
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`because they've done that since, I don't know, the time
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`of the pyramids or whatever. But they haven't had
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`license plate messages since time immemorial, so maybe
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`that is why they shouldn't be considered just like the
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`monuments.
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` MR. KELLER:
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`Mr. Chief Justice, I don't mean
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`to suggest that they are just like the monuments, but
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`there is still a fixed medium; an intangible message is
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`being displayed to a captive audience, as the Court
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`recognized in Lehman. It and in those situations,
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`the government is entitled to select the messages that
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`it wishes to propagate and that are going to be closely
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`identified
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` JUSTICE SCALIA:
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`Personally, I would rather
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`have the license plates than the pyramids. I I don't
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`know that we want to drive Texas to having pyramids.
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` MR. KELLER:
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`Justice Scalia, we also want to
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`retain our license plates. And that shows, I think,
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`what this case is about. The Respondents want Texas to
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`place its stamp of approval on the Confederate battle
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`flag through license plates, and Texas doesn't have to
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`make that judgment.
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` JUSTICE ALITO:
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`Well, I don't want to beat a
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`dead horse, but I if what what is the best
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`distinction you can give me between what you do with
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`license plates and billboards, a soapbox, an official
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`State website where people can put up a a message
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`that they want subject to State approval? If we were to
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`write an opinion that drew tried to draw a
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`distinction between the license plates on one side and
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`those other things on the other side, what would we say?
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` MR. KELLER:
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`Sure, Justice Alito. I think
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`the very first thing is Texas has its name on it. I'm
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`not sure in the billboard example
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` JUSTICE ALITO:
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`Texas has its name on all
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`the other things, too.
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` MR. KELLER:
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`In this situation, we have
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`exercised selectivity and control as my previous answer
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`to Justice Kagan suggested. Our reply brief at pages 9
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`to 11 addresses that. Also, we market this program to
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`the public saying specifically that no one is entitled
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`to whatever design they want; rather, the board of the
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`legislature has to approve it. That's at the final item
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`of the Joint Appendix. So this is not a situation where
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`out in the world if you were to see a soapbox in a park,
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`that you would wonder is this the government speaking?
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`Is this not the government speaking? Is the government
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`abridging traditional free speech rights? This is a
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`case where Texas wants to maintain and has maintained
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`control of what it says on license plates. And
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`Respondents everyone remains free to speak in all
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`sorts of ways. Speeches, leafletting, TV,
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`advertisements. They're on billboards.
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` JUSTICE SOTOMAYOR:
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`I really don't think
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`that you've answered Justice Alito's question. In every
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`park you need, generally, a permit to do certain kinds
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`of speech. So the government controls that permit
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`process, and it tells you that it can say no.
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` So why is that different in the situations
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`that it can't be merely control is what I'm saying.
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` MR. KELLER:
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`Justice
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` JUSTICE SOTOMAYOR:
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`The ability to veto
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`because that would then give you the ability to veto.
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`You could create a program in every public forum that
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`basically controls in the same way.
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` MR. KELLER:
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`Justice Sotomayor, I think
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`there there's a difference we need to be clear
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`about what approval means. If approval means access to
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`a forum and it's not government controlling every single
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`word of the message, then I don't think you have
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`government speech. If it's simply you have a permit
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`to
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` JUSTICE SCALIA:
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`Have we held that you
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`can you can deny access to a park or to a forum on
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`the basis of the content of the speech?
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` MR. KELLER:
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`Justice Scalia, contentbased
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`regulations of speech
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` JUSTICE SCALIA:
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`Absolutely wrong. And
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`you're denying access on the basis of content; right?
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`It's a different different situation entirely.
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` MR. KELLER:
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`Justice Scalia, that is
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` JUSTICE KAGAN:
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`But Mr. Keller, one of
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`the one of the concerns that that raises, and this
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`really goes back to what Justice Kennedy said, is that
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`outside the traditional area of streets and parks, this
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`is a new world. There are all kinds of new expressive
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`forums being created every day and as those come into
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`play, as long as the State says, hey, look, we're going
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`to regulate everything for offense, we're going to keep
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`anything offensive out of this expressive forum. It
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`does create the possibility that in this new world with
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`all these new kinds of expressive fora, the State will
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`have a much greater control over its citizens' speech
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`than we've typically been comfortable with.
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` MR. KELLER:
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`That's right, Justice Kagan.
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`And I think for all of those reasons, a narrow ruling in
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`this case would possibly be a beneficial way to go, but
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`that
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` JUSTICE SCALIA:
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`Do do you know of any
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`other expressive fora that are owned by the State that,
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`are manufactured by the State that have the State's name
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`on it as license plates do? I mean, if there are a lot
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`of fora like that, boy, I I wouldn't really worry.
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`But I don't know of any others. Do you know of any
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`others?
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` MR. KELLER:
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`No, Justice Scalia. This
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`is this is a unique
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` JUSTICE BREYER:
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`What can you tell me, then,
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`to help me which might not help others? But I don't
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`think these categories are absolute. I think they help,
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`but they're not absolute. So I would ask the question
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`first, this isn't government speech in common English.
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`It is the speech of the person who wants to put the
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`message on the plate. The plate's owned by the State.
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`The State says we don't want certain messages to be
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`displayed. And my question is why? Why not? What is
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`the interest that the State is furthering in keeping
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`certain messages off the plate?
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` MR. KELLER:
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`Justice Breyer, the State's
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`interest is selecting the messages it it wants to
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`put its
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`I'm sorry. If the
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`State then you have the Republican example,
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`Democrats. I mean, not every interest is a justifiable
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`interest. Some are not, and some are. That's why I
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`asked my question.
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` They keep some off, and they let some on.
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`What is their interest? Why which are the ones? I'm
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`asking a factual question. Why have they kept off the
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