In Pleasant Grove City v. Summum, the Supreme Court confirmed that there is no heckler’s veto under the government speech doctrine. When speaking, the government has the right to speak for itself and to select the views that it wants to express. But the Court acknowledged that sometimes it is difficult to determine whether the government is actually speaking. Specialty license plates have proven to be one of those difficult situations, raising novel and important First Amendment issues. Six circuits have reached four separate conclusions regarding the status of messages on specialty license plates. Three circuits have held that specialty plates are private speech, one has held that specialty plates are government speech, and another has held that specialty plates are hybrid speech. Yet another circuit has held that the issue is nonjusticiable under the Tax Injunction Act. And the uncertainty continues as North Carolina, Texas, and Oklahoma currently confront litigation over their license plates—litigation that will determine whether states or third parties have the right to select the messages on specialty license plates. This Article explores the Court’s “recently minted” government speech doctrine in the context of specialty plates. In particular, it analyzes the circumstances under which a state can adopt one message (“Save the Sea Turtles”) while refusing to authorize opposing viewpoints (“Kill the Sea Turtles”). To date, the majority of circuits have applied a literal speaker test, which looks to see if a reasonable observer would view specialty plates as government or private speech. Under that test, specialty plates are private speech, and any restrictions on the content of such plates must be reasonable and viewpoint neutral, even if a state disagrees with that message. This Article contends that a careful review of Summum, which was decided after all but one of the circuit court decisions, shows that the majority interpretation is wrong. The literal speaker test is inconsistent with the “control” test set out in Summum and Johanns. Under the Court’s new test for government speech, many specialty license plate programs are government speech, and third parties cannot force states to promulgate messages with which they disagree. If a state has a “Save the Sea Turtles” plate to promote conservation and the protection of its wildlife, it cannot be forced to offer a “Kill the Sea Turtles” plate. And the same holds true for more controversial messages such as “Choose Life” in North Carolina as well as Texas’s ban on plates containing divisive images such as a Confederate flag. Thus, this Article concludes that Summum marks a significant development in the Court’s free speech jurisprudence, one that affirms the states’ ability to control the messages on their specialty license plates as well as their other expressive activity.


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