Walker v. Texas Division, Sons of Confederate Veterans, Inc. – Oral Argument, March 23, 2015

Media for Walker v. Texas Division, Sons of Confederate Veterans, Inc.

Audio Transcription for Opinion Announcement – June 18, 2015 in Walker v. Texas Division, Sons of Confederate Veterans, Inc.

del

John G. Roberts, Jr.:

We will hear argument first this morning in Case No. 14-144, John Walker v. The Texas Division of the Sons of Confederate Veterans. Mr. Keller.

Scott A. Keller:

Thank you, Mr. Chief Justice, and may it please the Court: Messages on Texas license plates are government speech.

The State of Texas etches its name onto each license plate and Texas law gives the State sole control and final approval authority over everything that appears on a license plate.

As in Summum, Texas is not abridging any traditional free speech rights.

Motorists remain free to speak in all sorts of ways, including on their cars through a bumper sticker right next to a license plate, or a car-size paint job or a window decal. But the First Amendment does not mean that a motorist can compel any government to place its imprimatur on the Confederate battle flag on its license plate.

Ruth Bader Ginsburg:

Well, one of — one of the problems with the scheme is it’s a nebulous standard: Would it be regarded as offensive to many people? I mean, is it government speech to say “Mighty fine burgers” to advertise a product?

Scott A. Keller:

The government — yes, Justice Ginsburg.

The government is allowed to choose the messages that it wishes to.

It’s simply because it has approved parochial messages or has endorsed messages or is accepting and generating revenue.

To get — to propagate those messages doesn’t defeat the fact that it is government speech. When the Library of Congress, for instance, takes sponsorship from The Washington Post or Wells Fargo for the National Book Festival, that’s still a government speech when they then put it on their website.

Samuel A. Alito, Jr.:

Suppose Texas erected 500 electronic billboards around the State, and on those billboards they posted some government messages, wear your seatbelt when you’re driving, for example.

But then at the bottom people could put a message of their choice.

Would that be government speech?

Scott A. Keller:

Justice Alito, I think the portion that the government had final approval authority and sole control over, that would be government speech. If the government, though, doesn’t have sole control or final approval authority over another portion, I think that could be —

Samuel A. Alito, Jr.:

No, the bottom, the government has the same kind of approval authority that it has here.

It’ll allow people to say inoffensive things, but if they say something that’s — that’s offensive, then they won’t allow that.

That would be government speech?

Scott A. Keller:

It would be government speech under — I think the best reading of both Summum and Johanns together is precedent; that you have final approval authority when the government isn’t abridging other traditional free speech rights. But even if that weren’t the test —

Sonia Sotomayor:

But, I’m sorry.

I don’t understand.

Almost anything the government does, it has final authority to veto.

Whether it’s a school or a government website, it always retains the authority to say no.

The issue is when can it say no constitutionally. So I don’t think it’s merely that.

And in Summum, the government actually created the words that were — that were being advertised.

So isn’t that substantially different? Because the government’s not creating these words.

Scott A. Keller:

Well, Justice Sotomayor, if you went on Summum, the Court indicated that —

Sonia Sotomayor:

That’s the monument case.

I’m talking about Johanns.

Scott A. Keller:

That — that — that’s right. And in Summum though, the — a private organization, the Fraternal Order of Eagles, put its name on the monument. It created the message; it then donated it to the park. In Johanns, yes, the government did create a program to espouse the message, “Beef, it’s what’s for dinner,” but even then, as the Court recognized the Secretary of Agriculture didn’t write ad copy.

So it’s not as if the government had control — I’m sorry, the government had control, it just was not at every step of the way saying this is how the message must be, but at the end of the day it had final approval authority. But to return to Justice Alito’s hypothetical and what the test should be, the test can include other elements.

Scott A. Keller:

And even if Summum and Johanns could be read as just a two-part test, for all sorts of reasons, this is government speech here.

Texas has its name on every license plate.

There’s a formal process here of notice and comment, and the board takes a public vote before approving any specialty license.

Elena Kagan:

Mr. Keller —

Anthony M. Kennedy:

Well, do you want — do you want us to hold that because it’s government speech, the government can engage in viewpoint discrimination? Is that what I’m supposed to write?

Scott A. Keller:

That’s right, Justice Kennedy. And the Court has recognized that in Summum and in Johanns.

Elena Kagan:

And does that have any limits, Mr. Keller? I mean, suppose somebody submitted a license plate to Texas that said, “Vote Republican,” and — and Texas said, yes, that’s fine.

And then the next person submitted a license plate to Texas and it said, “Vote Democratic,” and Texas said, no, we’re not going to approve that one.

What about that?

Scott A. Keller:

Yeah, Justice Kagan, I don’t think our position would necessarily allow that, but I think that doesn’t have —

Elena Kagan:

But why — why wouldn’t it allow that?

Scott A. Keller:

Because the Establishment Clause, the Equal Protection Clause, Due Process Clause, other independent constitutional bars could apply.

As Justice —

Elena Kagan:

Well, this is not an Establishment Clause issue.

So I’m — I’m curious as to why — what — what constitutional constraints you think there are and how they would play out as to the kind of hypothetical I just gave you.

Scott A. Keller:

Absolutely, Justice Kagan.

I think partisan speech, candidate speech, as Justice Stevens’ concurrence in Summum recognized and Justice Scalia’s concurrence in Finley recognized, there could be other constitutional bars such as the Equal Protection Clause.

The Oregon Supreme Court —

Antonin Scalia:

I think all you have to say is — is whatever prevents Texas itself in all of its other activities, never mind license plates, from saying vote Republican, right?

Scott A. Keller:

Absolutely.

But —

Antonin Scalia:

Then you put the same question: What stops Texas from — from saying, in all of its election literature that it passes out, vote Republican? I think something prevents that.

And whatever prevents that would prevent it on the license plates, too.

No?

Scott A. Keller:

That’s correct, Justice Scalia, which is why that issue is — is one of government speech in general.

But the Court has recognized unanimously that the government can speak, that the government speech doctrine does not allow — or sorry, that the government can speak even if it is going to take certain viewpoints, and not —

Anthony M. Kennedy:

Well, what — what’s the — what case do you want me to read to show that the government can engage in viewpoint discrimination when it’s its own speech? It’s the monument cases?

Scott A. Keller:

Yes, Justice Kennedy.

Summum would be the best example.

Anthony M. Kennedy:

Is this — is this a case where the State, the government, has aided in creating a new kind of public forum? People don’t go to parks anymore.

Anthony M. Kennedy:

If the government bought 17 soapboxes to put around the park, that’s government property, but the government can’t prohibit what kind of speech goes on there.

Why isn’t this a new public forum in a — in a new era?

Scott A. Keller:

I don’t think it’s a public forum for private speech for — for various reasons. The Court has never recognized a public forum for private speech when the government places its name on the message, when it completely controls the message in the forum, when it is receiving notice and comment from the public —

Anthony M. Kennedy:

No, but that’s circular. The whole question is whether you — whether you can control the message.

You’re assuming the answer to the question.

Scott A. Keller:

Well, Justice Kennedy, I think the Court has looked at governmental intent to determine whether there’s a public forum for private speech.

And for all of the reasons that we’re pointing out that this is government speech, it is the same — it is the flip side of why a public forum hasn’t been created. So —

John G. Roberts, Jr.:

I’m not quite sure why it’s government speech since it’s — there’s no clear, identifiable policy — at least it’s arguable there’s none — that the State is articulating.

I mean, they’re only doing this to get the money.

Scott A. Keller:

Mr. Chief Justice, a singular programmatic message I don’t think can be part of any administrable test for government because government must speak in all sorts of ways.

The Court in Summum indicated that the 52 structures in New York Central Park were all government speech, and yet, those — it’s a wide array of messages, such as Alice in Wonderland.

John G. Roberts, Jr.:

Well, but it’s — here, I mean, you — you could have conflicting messages.

I mean, what is the government policy between allowing University of Texas plates and University of Oklahoma plates?

Scott A. Keller:

The State of Texas can absolutely promote the educational diversity of its citizenry.

John G. Roberts, Jr.:

Well, okay.

What’s its policy between permitting “Mighty fine burger” place — plates and, you know, “Pretty good burgers” plates? (Laughter.)

Scott A. Keller:

Mr. Chief Justice, as a — an Austin, Texas establishment, the State of Texas, if it wanted to, could promote that message.

But even if Mighty Fine Burgers weren’t a Texas establishment, Texas is allowed to endorse speech.

And just because it would be generating revenue —

John G. Roberts, Jr.:

So it’s endorsing speech?

Scott A. Keller:

It is the government’s speech. The analogy would be an endorsement of such as a professional athlete.

The professional athlete, for instance, places a logo or a product or otherwise on some apparel that the athlete is wearing.

That’s still the speech of the athlete.

John G. Roberts, Jr.:

Right.

But the athlete doesn’t advertise, you know, Nike on his jersey and Adidas on his shoes.

You can see one message.

That athlete is endorsing this brand.

But Texas will put its name on anything and the idea that this is their speech, again, the only thing that unifies it is they have — they get money from it.

Scott A. Keller:

Mr. Chief Justice, I don’t think Texas —

Stephen G. Breyer:

I bet he would if he could.

Scott A. Keller:

The State of Texas does not put its name on everything.

It — it follows a formal process with a public vote —

John G. Roberts, Jr.:

Well, it does.

You told me yourself.

You began, you said its name is etched on the license plate.

Scott A. Keller:

Sir, every message that is actually appearing on a license plate, yes, that is the State’s message.

But that —

Ruth Bader Ginsburg:

And how many of them are there? How many —

Scott A. Keller:

At — as of the beginning of this month, there were 438 specialty plates, 269 of which were available for general public use.

Elena Kagan:

How many have you disapproved other than this one?

Scott A. Keller:

We address that argument in our reply brief at pages 9 to 11.

Texas has — sorry. Texas agencies have denied about a dozen plates.

Some of that information is in the record, some of it is not.

Elena Kagan:

And in — in — which — what other ones have you disapproved?

Scott A. Keller:

The board’s predecessor denied a pro life plate.

The board itself denied a Texas DPS Trooper’s Foundation plate, and the board’s predecessor also denied about a dozen other plates. Also, the —

Elena Kagan:

All on the ground of offense?

Scott A. Keller:

The — the information is not clear as to what the grounds for those denials were. The legislature itself has also repealed multiple specialty plates that it also had created. So — so this shows that —

Elena Kagan:

And could — could I ask, Mr. Keller, if you go down to Texas and you just stare at license plates, are most of them just the standard license plate and then these 400 license plates you see very carefully, or do most people actually have one of these specialty plates?

Scott A. Keller:

While there is a — a wide range, I believe most plates are still the standard plate and —

Elena Kagan:

But there’s a very — there’s a substantial percentage that are not? There — it’s not by any means unusual to see a specialty plate?

Scott A. Keller:

It would not be unusual to see a specialty plate in the State of Texas.

But the State of Texas, by etching its name on it, can keep in control of what appears on license plates.

It’s still the State’s message.

All —

Samuel A. Alito, Jr.:

What is the limits of this argument? That’s what concerns me.

And your answer to my billboard question was disturbing, but suppose people still did go to parks, and the State had an official State soapbox at the park, and every once in a while a State official would mount the soapbox and, say, give some official State announcement.

But other times people who pay the fee would be allowed to go up there and say something that they wanted, provided that it was approved in advance by the State.

Would that be official State speech?

Scott A. Keller:

Justice Alito, I think there we’re starting to cross over into a situation what this called — what this Court in Summum called of a subterfuge, that if you are abridging traditional free speech rights, if you’re limiting access to a traditional public forum, then that would be an instance where government speech is crowding out speech and therefore it raised constitutional —

Samuel A. Alito, Jr.:

Well, what does —

Anthony M. Kennedy:

Why hasn’t this become traditional? I don’t mean to interrupt Justice Alito, but we’re on, I think, on the same point.

Why hasn’t this become traditional now that you have allowed it? You have opened up a new forum.

Scott A. Keller:

Justice Kennedy, I don’t think it has become traditional because Texas has always maintained control over its plates, and it has always exercised editorial control.

So unlike a park which has been held since time immemorial for the benefit of the public to speak, license plates are a regulatory —

Anthony M. Kennedy:

Well, do — do you want us to say that public — the public fora cannot evolve over time according to — and people don’t go to parks anymore.

They drive.

Scott A. Keller:

Justice Kennedy, absolutely. The — the public — traditional public forum can evolve over time.

But the indicia of a traditional public forum still has to be one that is open, and — and Texas has not opened license plates.

If other States wanted to —

Elena Kagan:

But in a world in which you have approved 400 license plates and they are pretty common in the State of Texas and you have only disapproved a very select few, you know, it does seem as though you’ve basically given — relinquished your control over this and, you know, made it a people’s license plate for whatever private speech people want to — to say.

Scott A. Keller:

Justice Kagan, I think it would be odd to say that it — it’s private speech when the board is taking a public vote and receiving notice and comment, a very — a governmental function of when the government wants to act, and then it is placing its name on the license plate.

When the government is placing its name on the license plate, it is accepting and — and signifying that this is the government’s message, and you never —

Ruth Bader Ginsburg:

Does — does it have notice and comment for — for every one of the 430-odd that it’s approved? Every time there is a request, does it — is there a notice and comment procedure?

Scott A. Keller:

If it’s a legislature-created plate, the legislature, of course, would do it and then there wouldn’t be an agency notice and comment proceeding.

But under the existing law, notice and comment would be required for every specialty plate approved by the agency, which is all specialty plates that are not approved by the legislature. I — I think a good analog to this case would the U.S. Postal Services’ postage stamp program. There, the U.S. is placing its name directly on the medium.

Thousands of stamps have been issued in the past, and yet there is also private input that is allowed on to what those postage stamps are going to look like.

And just as it — respondents can speak in all sorts of ways on a bumper sticker right next to a license plate or on a — in the envelope on which a stamp would appear, that doesn’t mean that someone is allowed responsive speech to whatever appears on a stamp or whatever appears on a license plate.

Antonin Scalia:

Does Texas also have specialty plates insofar as the — the letters or numbers of the plates are concerned? I mean, can you get a license plate that says “Hot Stuff” or something like that?

Scott A. Keller:

Justice Scalia, we do have personalized plates in Texas.

Antonin Scalia:

And are those censored? I mean, can you — can you use a dirty word on those?

Scott A. Keller:

The — the speech there is controlled completely by the State of Texas.

Antonin Scalia:

I would think so.

Scott A. Keller:

Texas, and this is not in the record, but —

Antonin Scalia:

Even though the individual selects “Hot Stuff” or whatever other message he wants to put.

So I guess if this is not allowed, we can’t allow that either.

Scott A. Keller:

Yes, Justice Scalia.

Antonin Scalia:

Right? I mean, dirty words are — people are entitled to use dirty words.

Scott A. Keller:

That’s right.

Justice Scalia, I — the Court’s holding in this case, I believe, would directly affect the personalized plates.

Scott A. Keller:

And when —

John G. Roberts, Jr.:

Well, I — I’m not sure your analogy to the postal service really works because none of us can imagine the postal service having commercial advertisements on its stamps.

One of the — a license plate’s here for RE/MAX Realty.

You are not going to see that on a postal stamp.

Scott A. Keller:

Mr. Chief Justice, it may be true that the U.S. Postal Service has not chosen to engage in that type of expression, but I don’t think that defeats the fact that this is still government speech.

For all of the indicia the Court have recognized in Summum and Johanns, and even Justice Souter’s dissent in Johanns, that wanted — it was looking for government disclosure, we have that here. We have Texas’s name etched onto the license plate. Also untenable consequences could fall from a — an — an opinion recognizing that Texas has to offer responsive speech.

Texas should not have to allow speech about Al-Qaeda or the Nazi party simply because it offers a license plate propagating the message “Fight Terrorism”.

John G. Roberts, Jr.:

Well, but there is an easy answer to that, which is they don’t have to get in the business of selling space on their license plates to begin with.

If you don’t want to have the Al-Qaeda license plate, don’t get into the business of allowing people to buy their — you know, the space to put on whatever they want to say.

Scott A. Keller:

Mr. Chief Justice, I believe, though, that would be an answer to all of the government speech cases.

And I — in Summum for instance, the — the Court didn’t say, Well, if you don’t want to accept the Summum monument, just don’t allow monuments.

And that is because government is allowed to select the messages that it wants to propagate and it’s allowed to speak in medium that it chooses.

John G. Roberts, Jr.:

Well, that might be because they’ve done that since, I don’t know, the time of the pyramids or whatever.

But they haven’t had license plate messages since time immemorial, so maybe that is why they shouldn’t be considered just like the monuments.

Scott A. Keller:

Mr. Chief Justice, I don’t mean to suggest that they are just like the monuments, but there is still a fixed medium; an intangible message is being displayed to a captive audience, as the Court recognized in Lehman.

It — and in those situations, the government is entitled to select the messages that it wishes to propagate and that are going to be closely identified —

Antonin Scalia:

Personally, I would rather have the license plates than the pyramids.

I — I don’t know that we want to drive Texas to having pyramids.

Scott A. Keller:

Justice Scalia, we also want to retain our license plates.

And that shows, I think, what this case is about.

The Respondents want Texas to place its stamp of approval on the Confederate battle flag through license plates, and Texas doesn’t have to make that judgment.

Samuel A. Alito, Jr.:

Well, I don’t want to beat a dead horse, but I — if — what — what is the best distinction you can give me between what you do with license plates and billboards, a soapbox, an official State website where people can put up a — a message that they want subject to State approval? If we were to write an opinion that drew — tried to draw a distinction between the license plates on one side and those other things on the other side, what would we say?

Scott A. Keller:

Sure, Justice Alito.

I think the very first thing is Texas has its name on it.

I’m not sure in the billboard example —

Samuel A. Alito, Jr.:

Texas has its name on all the other things, too.

Scott A. Keller:

In this situation, we have exercised selectivity and control as my previous answer to Justice Kagan suggested.

Our reply brief at pages 9 to 11 addresses that.

Also, we market this program to the public saying specifically that no one is entitled to whatever design they want; rather, the board of the legislature has to approve it.

That’s at the final item of the Joint Appendix.

Scott A. Keller:

So this is not a situation where out in the world if you were to see a soapbox in a park, that you would wonder is this the government speaking? Is this not the government speaking? Is the government abridging traditional free speech rights? This is a case where Texas wants to maintain and has maintained control of what it says on license plates.

And Respondents — everyone remains free to speak in all sorts of ways.

Speeches, leafletting, TV, advertisements.

They’re on billboards.

Sonia Sotomayor:

I really don’t think that you’ve answered Justice Alito’s question.

In every park you need, generally, a permit to do certain kinds of speech.

So the government controls that permit process, and it tells you that it can say no. So why is that different in the situations that — it can’t be merely control is what I’m saying.

Scott A. Keller:

Justice —

Sonia Sotomayor:

The ability to veto because that would then give you the ability to veto. You could create a program in every public forum that basically controls in the same way.

Scott A. Keller:

Justice Sotomayor, I think there — there’s a difference — we need to be clear about what approval means.

If approval means access to a forum and it’s not government controlling every single word of the message, then I don’t think you have government speech.

If it’s simply — you have a permit to —

Antonin Scalia:

Have we held that you can — you can deny access to a park or to a forum on the basis of the content of the speech?

Scott A. Keller:

Justice Scalia, content-based regulations of speech —

Antonin Scalia:

Absolutely wrong.

And you’re denying access on the basis of content; right? It’s a different — different situation entirely.

Scott A. Keller:

Justice Scalia, that is correct.

We are — we are denying access.

Elena Kagan:

But Mr. Keller, one of the — one of the concerns that that raises, and this really goes back to what Justice Kennedy said, is that outside the traditional area of streets and parks, this is a new world.

There are all kinds of new expressive forums being created every day and as those come into play, as long as the State says, hey, look, we’re going to regulate everything for offense, we’re going to keep anything offensive out of this expressive forum.

It does create the possibility that in this new world with all these new kinds of expressive fora, the State will have a much greater control over its citizens’ speech than we’ve typically been comfortable with.

Scott A. Keller:

That’s right, Justice Kagan. And I think for all of those reasons, a narrow ruling in this case would possibly be a beneficial way to go, but that —

Antonin Scalia:

Do — do you know of any other expressive fora that are owned by the State that, are manufactured by the State that have the State’s name on it as license plates do? I mean, if there are a lot of fora like that, boy, I — I wouldn’t really worry. But I don’t know of any others.

Do you know of any others?

Scott A. Keller:

No, Justice Scalia.

This is — this is a unique —

Stephen G. Breyer:

What can you tell me, then, to help me which might not help others? But I don’t think these categories are absolute.

I think they help, but they’re not absolute.

So I would ask the question first, this isn’t government speech in common English. It is the speech of the person who wants to put the message on the plate.

The plate’s owned by the State. The State says we don’t want certain messages to be displayed.

Stephen G. Breyer:

And my question is why? Why not? What is the interest that the State is furthering in keeping certain messages off the plate?

Scott A. Keller:

Justice Breyer, the State’s interest is selecting the messages it — it wants to put its —

Stephen G. Breyer:

I’m sorry.

If the State — then you have the Republican example, Democrats.

I mean, not every interest is a justifiable interest.

Some are not, and some are.

That’s why I asked my question. They keep some off, and they let some on. What is their interest? Why — which are the ones? I’m asking a factual question.

Why have they kept off the ones they kept off while letting on the ones they left on?

Scott A. Keller:

Justice Breyer —

Stephen G. Breyer:

If they have no interest at all in making such a distinction, then I think since speech is hurt at least a little, they ought to lose. But if they have a justifiable interest, since you can put the bumper sticker next door, I think they win.

And therefore, I’d like to know what their interest is.

Scott A. Keller:

And the State of Texas interest here is propagating messages that show the diverse backgrounds, educational backgrounds, products of Texas.

Stephen G. Breyer:

Well, yes — I —

Antonin Scalia:

No.

I’m asking the interest of —

Stephen G. Breyer:

I assume that Texas likes each one of these interests that they allow to be put on the — on — on the license plate.

They like Texas hamburger joints, and they probably would not approve a — a Chicago hamburger joint being on the Texas license plate.

They — they — they like some of these messages; others they don’t particularly like.

Isn’t that right?

Scott A. Keller:

Justice —

Stephen G. Breyer:

I’d like to get my answer. I was asking you what is the interest in Texas, and why does it keep off the messages it keeps off?

Scott A. Keller:

In this particular example —

Stephen G. Breyer:

No.

Not just this example. There are a set of things they’ve kept off.

Why?

Scott A. Keller:

Justice Breyer —

Sonia Sotomayor:

Now, don’t try a general rule.

I think the Justice is asking you for a specific. Why would you —

Scott A. Keller:

Justice Breyer, I’ll use the example of the Texas DPS Troopers Foundation plate that was also denied.

There, Texas didn’t want that on its license plate because it was concerned that if a motorist were pulled over, that then the —

Stephen G. Breyer:

Okay.

So go through this. Look, I can think of many reasons I could make up. Maybe they want to keep controversial political messages off.

I’d say they have an interest in that in suggesting to people Texas doesn’t sponsor this — I just want to know what — what they really are.

And now you’ve said one — what was the one you just said?

Scott A. Keller:

The Texas DPS Troopers Foundation plate, Justice Breyer.

Anthony M. Kennedy:

Well, I’m interested in Justice Breyer’s question.

You’re on the license plate approval board.

What standard do you follow? When do you grant a request, and when do you deny it? What is the rule? I think that’s what Justice Breyer is asking.

Scott A. Keller:

Yes.

And Texas regulations provide that the board can deny a license plate for something that members of the public would find offensive, but it also says that the board can deny plates for any reason established by a rule, which is —

Stephen G. Breyer:

Fine.

Then I think they lose.

The reason I think they lose is because I don’t see a State could come in and say we keep off a private message, and we’ll tell you the reason later. We’ll — we can do it for any reason we want.

There you’re hurting speech, and I don’t see Texas’s interest in saying we can keep it off for any reason we want because that would be the Republican-Democrat, too.

Scott A. Keller:

Well, but Justice —

Stephen G. Breyer:

So what’s the — I’m — same question, but I just think you have to have some kind of legitimate reason for keeping off the — and it doesn’t have to be much.

It could be just a little.

Scott A. Keller:

Well, Texas can have legitimate reasons for not allowing —

Stephen G. Breyer:

Then why don’t you tell us what they are?

Scott A. Keller:

Well, I think, though, that that would require something like a formal process and Summum —

Stephen G. Breyer:

No, it doesn’t.

I just want to know what they are.

Scott A. Keller:

And Justice Breyer, Texas does not have to associate itself with messages that it doesn’t want to and finds offensive.

And because Texas has given that explanation here, we know that.

But many times government officials speak and — and they don’t disclose their motives, and that’s perfectly —

Ruth Bader Ginsburg:

But here, Texas — Texas did.

And now, we get full circle back to the — my first question. Texas didn’t just say no.

It said this message would be offensive to many people.

So that’s — if — if a message would be offensive to many people, that’s a standard that they’re applying.

And I asked isn’t that too broad a discretion?

Scott A. Keller:

No, Justice Ginsburg.

The fact that we have that much discretion confirms that this is government speech. Mr. Chief Justice, let me remain — reserve the remainder of my time.

John G. Roberts, Jr.:

Thank you, Counsel. Mr. George.

Roger James George, Jr.:

Mr. Chief Justice, and may it please the Court: We’re here representing the Sons of the Confederate Veterans because they wanted to have a license plate to raise money, in fact, for the State of Texas to keep up monuments, which was the purpose of their whole process in this case.

And the State of Texas has gone about issuing an open invitation to everybody to submit to them public designs for license plates and to create — and thus, it’s created a limited public forum for these license plates.

Antonin Scalia:

Can Texas — can Texas itself formally, let’s say, by a — a joint resolution of the legislature endorse the Grand Army of the Republic and not the Sons of the Confederacy? Can Texas do that?

Roger James George, Jr.:

The legislature can endorse anything it wants.

Antonin Scalia:

So the State can; right? So — so can the — can the legislature endorse Austin hamburgers?

Roger James George, Jr.:

Well, the Legislature has created a Confederate Heroes Day in —

Antonin Scalia:

And —

Roger James George, Jr.:

— in this particular case. And the people on my side — this side of the —

Antonin Scalia:

What about Yankee heroes? Are they —

Roger James George, Jr.:

They — they — they —

Antonin Scalia:

— are they honored in Texas?

Roger James George, Jr.:

— do — well, they created a holiday for —

Antonin Scalia:

To —

Roger James George, Jr.:

— people — for Juneteenth when the slaves were freed.

Antonin Scalia:

What I don’t understand is why this sticks in your craw when it’s on — on a license plate —

Roger James George, Jr.:

The —

Antonin Scalia:

— when you acknowledge that Texas can do all of these things so long as it’s Texas speech.

The only question here is whether this is Texas’s speech or not.

If it is Texas’s speech, all of these things can be said, can’t they? Can’t all of the things —

Roger James George, Jr.:

If it —

Antonin Scalia:

— that are on the license plates —

Roger James George, Jr.:

If it’s Texas speech by itself —

Antonin Scalia:

It —

Roger James George, Jr.:

— and is not joint speech because of —

Antonin Scalia:

Right.

Roger James George, Jr.:

— the location.

Antonin Scalia:

This doesn’t seem to me like a very significant issue —

Roger James George, Jr.:

Well —

Antonin Scalia:

— if that’s all you are concerned about.

Roger James George, Jr.:

Well, the —

Antonin Scalia:

So long as Texas says it’s — it’s okay, but, boy, if you put it on a license plate, that — what — I don’t understand what the theory is.

Roger James George, Jr.:

Well, the State has created a very successful money-raising program in which it solicits people to come in and submit their design for their license plate so they can — they have to submit the design.

They have to put up the money to make the — put the — a plate.

And then the plate doesn’t ever get published to anybody until the person — somebody orders it from the —

Ruth Bader Ginsburg:

Suppose — suppose the message — the — the applicant said, we want this design, and the design is a swastika.

Is that speech that — does — does the — the — whoever is in charge of it — of the license plate, do they have to accept —

Roger James George, Jr.:

I don’t —

Ruth Bader Ginsburg:

— that — that design?

Roger James George, Jr.:

I don’t believe the State can discriminate against the people who want to have that design —

Ruth Bader Ginsburg:

So they could have the swastika.

And suppose somebody else says, I want to have “Jihad” on my license plate.

That’s okay, too?

Roger James George, Jr.:

Vegan?

Ruth Bader Ginsburg:

Jihad.

Roger James George, Jr.:

Jihad.

Jihad on the license plate? Can be — there is obviously a court of appeal — a district court from Ohio in which “Infidels” was held to be — the State —

Anthony M. Kennedy:

What is your answer —

Roger James George, Jr.:

— wouldn’t put that.

Anthony M. Kennedy:

What is your answer in this case as to Justice Ginsburg’s hypothetical? Yes or no, must the State put those symbols or messages on the plates at the request of the citizen? Yes or no?

Roger James George, Jr.:

Yes.

Ruth Bader Ginsburg:

How about “Make pot legal.”

Roger James George, Jr.:

Say it again.

Ruth Bader Ginsburg:

“Make pot legal.”

Roger James George, Jr.:

Yes.

Ruth Bader Ginsburg:

That’s okay? And “Bong hits for Jesus”? (Laughter.)

Roger James George, Jr.:

Yes.

Antonin Scalia:

So you’re — you’re really arguing for the abolition for Texas specialty plates, aren’t you?

Roger James George, Jr.:

I am arguing that if the State —

Antonin Scalia:

I couldn’t make a better argument for — in that direction than — than what you’ve been doing.

Roger James George, Jr.:

Well, we had got along without it a long time before we got it, and we can get along —

Anthony M. Kennedy:

So — so in a way —

Roger James George, Jr.:

— without it again.

Anthony M. Kennedy:

So in a way, your argument curtails speech?

Roger James George, Jr.:

Only if —

Anthony M. Kennedy:

If you prevail, you are going to prevent a lot of Texans from — from conveying a message — you have to agree with that.

Roger James George, Jr.:

I would — if — if the — if the State continues to use the same standard, which is it might offend anybody, the State can — can deny the plate.

If that’s the standard, then the — and — and they exercise the discretion on the statutory standard that it might offend somebody —

Anthony M. Kennedy:

But you have no alternate standard in order to have a proper — or solution that seems — seems wise for Justice Ginsburg’s hypothetical. You have no standard.

Roger James George, Jr.:

I — the — the answer to having a standard that controls people’s speech is that the standard has to be pretty low-hanging fruit. As — in the Christian Law Students Association, College of Hastings, v. Martinez, Justice Alito, in the dissent for the dissenters in that case said that offensive speech is something that — speech that we hate is something that we should be proud of protecting.

Stephen G. Breyer:

Yeah, that’s in that context.

So you — but I’m trying — you say they can or they cannot have a standard which says we’re trying to keep offensive speech off the license plate?

Roger James George, Jr.:

I — as long as the —

Stephen G. Breyer:

You say yes or no?

Roger James George, Jr.:

— definition of offensive is in the eyes of the beholder —

Stephen G. Breyer:

Yeah.

Roger James George, Jr.:

— of course.

Stephen G. Breyer:

They can do that?

Roger James George, Jr.:

They can’t have that.

Stephen G. Breyer:

They can or cannot?

Roger James George, Jr.:

Cannot.

Stephen G. Breyer:

Okay.

So now I see what you’re saying.

But if I were to go back to sort of the basic underlying thought here, is speech hurt?

Roger James George, Jr.:

Yes.

Stephen G. Breyer:

The answer is, yes, it is. The private speech is somewhat hurt.

A lot? Well, put up a bumper sticker.

You can’t say a lot.

Stephen G. Breyer:

How is it hurt? You don’t get the official imprimatur.

Hmm, okay. Now, is there something to be said for Texas? Yes.

What they’re trying to do is to prevent their official imprimatur from being given to speech that offends people.

People don’t like it? Put up a bumper sticker. All right.

Now we have two interests in opposite directions in many, many cases.

We try to weigh those things if the other things don’t tell us the answer.

And I would guess — I don’t really see the big problem — that people who are putting up speech even that Texas considers offensive, in part, for reasons that Justice Scalia says, well, put up a bumper sticker. What’s the problem?

Roger James George, Jr.:

Well, the — I — the culture of creating specialty plates began in Texas in 1965. We’ve been doing this, and we have gone bonkers with people buying these things in the State.

There are 50,000 people with — with the private plates —

Sonia Sotomayor:

There’s a lot of money in this, isn’t it? It’s about $8,000?

Roger James George, Jr.:

Say what?

Sonia Sotomayor:

Is it about $8,000 to get one of these plates?

Roger James George, Jr.:

I think it’s a little more than that.

Sonia Sotomayor:

More than that.

Roger James George, Jr.:

And that — that —

Sonia Sotomayor:

I have — I — I have a different question, which is — I actually do think that this is hybrid speech.

It’s both government and the individual speaking at the same time.

But that goes back to what Justice Scalia said.

In Wooley we said we can’t compel the individual to put something on their license plates that they disagree with.

Roger James George, Jr.:

That’s — we had that case.

Sonia Sotomayor:

So why isn’t the reverse true for the government? If you’re going to ask me to put my name, because the law requires it, the State’s name on a license plate, why can you compel us to do something we don’t want to endorse?

Roger James George, Jr.:

Well, the reason —

Sonia Sotomayor:

Why shouldn’t it work both ways when it’s —

Roger James George, Jr.:

The reason is that this has become — and it’s the numbers — it’s become a limited public forum for putting up messages.

Sonia Sotomayor:

But how — how do I know which is the government’s and which is only the individual’s? I mean, I — I — I wouldn’t have known that pro — that — that pro anything was sponsored by some States and not others, or endorsed by some States but not others.

So how do I know that a particular license plate the government doesn’t endorse?

Roger James George, Jr.:

You can’t tell whether the government wants your speech in advance in this program. You have to submit what you think you want, and then the —

Sonia Sotomayor:

Well, that implies a certain degree of approval.

Roger James George, Jr.:

And these — well, of course, there is approval.

Just like there’s approval for someone to speak in a park, the — in the Columbus, Ohio case where the —

Ruth Bader Ginsburg:

But that’s — that’s — I think was brought out earlier.

You can have time, place, and manner regulations for speaking in the park. You can’t have content-based regulation.

This is — this is a content basis, content the State doesn’t want.

Roger James George, Jr.:

The — and they have.

They have a standard that is — that — the lowest common — common denominator.

If any person could be offended, they can deny it.

That is their standard, which, in fact, is —

Ruth Bader Ginsburg:

Well, it wasn’t quite that.

It says it would be offensive to many people.

Roger James George, Jr.:

No, ma’am.

I think the statute is — it says, actually, any person.

So —

Elena Kagan:

Well, of course, Mr. George.

If you had a standard like that in a case, in a normal case where we were regulating private speech, of course, we would find that impermissible. But the question is whether this is a very different kind of context. And let’s go back to — I think Justice Scalia said it, about the nature of license plates.

I mean, I think there is a clear regulatory purpose here. It’s the government that actually makes the license plate.

I think the license plate continues to be public property, if that’s right, like you have to return the license plate.

It has the State’s name on it.

It’s clearly the official identification that the State gives with respect to a car. So why doesn’t all of that make — make this a very different case from the typical forum cases that — that we usually address?

Roger James George, Jr.:

Well, the reason is that we do have hybrid speech and they opened up, and they created this billboard, as Justice Alito said, they created a billboard opportunity.

And they have — since they can make everybody have a license plate, they said we’re going to create a billboard opportunity and put messages — let you put messages on it and pay us money for using our billboard.

That’s what they’ve done.

And then they say to some people, but if I don’t like your message because you’re a Republican or you’re a Democrat or you are — you want to say Mighty fine burgers instead of Whopper Burger, they can do that. That sort of arbitrary control of speech based upon a standard that it might offend anybody is they either need to get rid of the program, or they need to open up the program just to everybody else.

And if somebody publishes a speech they don’t like, Justice O’Connor in the Columbus, Ohio case suggested you just make them put a number under it whom the Ku Klux Klan puts a cross on the hill in Columbus, Ohio.

Stephen G. Breyer:

I asked my question before, if you remember it, really, because I wanted an answer.

Roger James George, Jr.:

I’ll try again.

Stephen G. Breyer:

It wasn’t a statement.

It was — it was — I’m trying to get rid of all the conceptual basis here.

You just go back — forget the public forum, et cetera, forget all that.

Roger James George, Jr.:

Okay.

Stephen G. Breyer:

Just go back to look to see is speech being hurt, and the answer is of course yes, but not much, because they can put a bumper sticker. Then you look at the other side of it, and you say, does the State have a legitimate interest here? And the State says yes, our interest is that there are messages we like, messages we don’t care about, and messages we don’t like.

Stephen G. Breyer:

And do we have a system for keeping the last off because it is the government speaking, which represents the citizens, and the citizens do — its their government, and they don’t want, just as in the examples Justice Scalia gave, to have their government associated with messages that this commission doesn’t want.

And maybe there are limits on that, but that’s the basic idea.

Okay.

Now, weigh those two things.

I think you’d say, little harm to speech, we see the other broad, da, da, da, et cetera.

Now, what’s your response?

Roger James George, Jr.:

Well, the response is the forum has been created.

Stephen G. Breyer:

Forum.

See, it’s the conceptual part, and I can’t tell whether a forum — a license plate’s a forum or not a forum, or if it’s a three-part test or — I can’t get that.

Roger James George, Jr.:

I understand.

Stephen G. Breyer:

I’m trying to go back to the basics of it.

Roger James George, Jr.:

Well, one of the — one of the ideas that you have articulated, and others on this Court, is that what would the reasonable observer believe this was.

For example, the — would they believe that the speech is the State’s speech or would they believe it’s the person who bought the plate, because there’s no — nothing gets communicated —

Ruth Bader Ginsburg:

How about both? How about both in answer to that? It is the State’s license plate.

It has Texas on it in big letters, so — and Texas says, yes, we have to approve it, yes, we approve a lot, but there’s some we don’t approve, because it’s our speech, it may be the car owner’s speech as well, but it is our speech.

Roger James George, Jr.:

Both — the State has dozens of potential designs for plates that don’t carry anybody else’s message, and they have 480 designs for organizational messages and 50,000 personalized messages.

And the issue in this case is the person who puts the license plates on their car is the one that communicates the message.

The other people are just giving approval.

Samuel A. Alito, Jr.:

Suppose the State had many fewer plates from which to choose.

So let’s say they have the standard plate, and then they have a plate for every college or university in the State.

That’s your choice.

Would that be government speech?

Roger James George, Jr.:

It certainly is government speech in the sense that — partly government speech, the ability to choose somebody — the universities in the State.

And if the standard by which they issue those is that we’re going to put one for all the colleges in the State, and that is the standard, of course that’s okay.

Because it is a — a standard that has — they chose or the legislature chose, I suspect, that says you can have — everybody who has a college can get into this program.

Samuel A. Alito, Jr.:

All right.

Suppose they broaden it.

So it’s not only the colleges and universities, but it’s all the places in Texas of historic interest or natural features of the State.

How about that? Now you’ve got a lot more.

Roger James George, Jr.:

They actually do those and those are not sponsored by anybody.

Roger James George, Jr.:

Those are State-created for — and they charge more money —

Anthony M. Kennedy:

But answer — answer the hypothetical.

Justice Alito says first colleges and the next scenic places.

That’s an okay or not?

Roger James George, Jr.:

Scenic places, they can — they actually —

Anthony M. Kennedy:

And then I’m sure he has some other —

Roger James George, Jr.:

— they can and do.

Anthony M. Kennedy:

All right.

Samuel A. Alito, Jr.:

And suppose that there’s some little town that thinks that it’s really scenic and they — there’s a way in which they can petition to get on this list.

Do you see where I’m going? At some point, if it’s — if you have just a standard State plate, of course that’s government speech.

If you’ve got 5,000 different variations that people can create for themselves, it becomes a lot harder to say that’s government speech.

So where would you draw the line?

Roger James George, Jr.:

My view is that when the people get to create a message themselves, and then — an organization in this case — create the message for themselves, and then the people who look in the catalog, pick out the license plate that they want and put it on their car, then the speech is the speech of the person who communicated it is predominantly —

Sonia Sotomayor:

My — my problem with this is, how do I know? There are three categories of plates, I understand.

There’s the official State plate, there are specialty plates created by the legislature, and there are specialty plates created by an individual. How do I tell the difference between the legislative plates, which are government speech, and the private plates? Do I need to? What I do know is what I said at the beginning, it’s both people speaking.

And I think both people endorsing each other’s message in some way.

So why should the government be compelled to accept speech it rejects because it thinks it’s wrong?

Roger James George, Jr.:

In the first place —

Sonia Sotomayor:

And doesn’t want to be associated with directly.

Roger James George, Jr.:

I understand.

In the first place, the way people pick out plates, there’s a big long catalog with 400 different organizational plates, 480 now, and it grows every day, of organizational plates.

And people pick them out of — on — out of a catalog out of a website, and they pick the one they want to pick, and then they put it on their license plate.

The communication of the information on the license plates actually is controlled entirely by the people who pick the plates.

Anthony M. Kennedy:

But what about Justice Alito’s hypothetical — we never did quite finish — where the direction of his question was, suppose the State, all by itself, has 10 messages, 20 messages, 200 messages, 2000 messages, you can choose, but the State makes up all the messages and gives you all the choices. What results?

Roger James George, Jr.:

Well, the result is if the State has — controls all — has all the messages and picks all the messages, and then the people from whom — whom it picks — who it sells the plates to —

Anthony M. Kennedy:

I know that’s the result of the hypothetical.

I want to know the legal result. What’s the First Amendment answer?

Roger James George, Jr.:

Well, the State can design all kinds of license plates that it wants to choose —

Anthony M. Kennedy:

Is the scheme that I proposed, and that followed from Justice Alito’s questions, consistent with the First Amendment or not?

Roger James George, Jr.:

My — it is not First — when the individual submits — when people, other people submit the design —

Anthony M. Kennedy:

That’s not the hypothetical.

Roger James George, Jr.:

I understand that.

Anthony M. Kennedy:

The hypothetical is the State has 5,000 designs, and the State makes them all up, and you can choose.

Is there a First Amendment violation?

Roger James George, Jr.:

I don’t believe — if the State does everything, then it’s — it’s the creator of the message and the speaker is the driver.

Elena Kagan:

What happens if private people could submit messages, but they all had to go through the legislature?

Roger James George, Jr.:

My view is that it is a much more difficult case for us if the legislature passes a statute, because that is a legislative act and a clear act of the State.

Elena Kagan:

Well, what’s the difference, then? I mean, if you say — if you think that that would be all right, you know, Texas has said, well, the DMV does it, not the legislature, a different branch of government, but it’s government just the same.

Roger James George, Jr.:

I understand that.

And the — and the issue is whether or not the — in the cases — we have court of appeals cases that don’t distinguish between legislative action and non-legislative actions, and those that do. It is my judgment that the State has a greater claim making its speech when every — when the legislature passes the bill and the governor signs it, then the statute is clearly an explanation — or expression of the State.

Stephen G. Breyer:

Well, if you —

Roger James George, Jr.:

What regard when anybody buys a license plate —

Stephen G. Breyer:

When — in Wooley, go back to that for a second.

I take it that if I object to the message on the New Hampshire plate, Live Free of Die, I have a right to be disassociated with that.

Roger James George, Jr.:

Yes.

Stephen G. Breyer:

Okay.

Well, if the State, which represents many people in Texas, doesn’t want to be associated with the particular message, why doesn’t it have the right to say we don’t want that event, we don’t want that association.

Roger James George, Jr.:

Because —

Stephen G. Breyer:

I mean, the State represents X million people.

They don’t want to be associated with this message through their official organ.

Roger James George, Jr.:

I understand.

Quite frankly —

Stephen G. Breyer:

What’s the difference?

Roger James George, Jr.:

The difference is they invite people to make their — they charge people and have them pay for the manufacture of the license plates by giving them the chance to design a message.

That’s what they do.

They — it costs the people who come up with these things, they pay all the front-end costs, put up $8,000 collateral before any license plate is built, and it is a money-making scheme that they use.

The fact that they choose to, apparently twice in history — and there may be more, but I, we can’t document anymore — they’ve ever turned anybody down, this is not a forum which people actually — they make any decision besides an economic decision.

It’s a factual matter; that’s what happens.

John G. Roberts, Jr.:

Counsel, can I ask you, it’s a somewhat technical question but you just touched on it.

Do you have an objection to the materials that your friend has cited from outside the record?

Roger James George, Jr.:

I — to the extent he’s cited issues relating to the other design, I do not have an objection to that, because I think it’s —

John G. Roberts, Jr.:

You think that it — it’s the extrarecord materials are accurate —

Roger James George, Jr.:

I think —

John G. Roberts, Jr.:

— actually.

Roger James George, Jr.:

I think so.

They are almost certainly accurate from what we found since we filed our brief.

John G. Roberts, Jr.:

Okay.

Roger James George, Jr.:

And I — the fact that we have gone from 350 to 480 organizational designs since the case was tried, I — was not in the record either, but I don’t doubt that he has sold a lot more organizational plates since then and they keep a better tally than we do.

Ruth Bader Ginsburg:

So what is your — the choice, the choice that Texas had, am I right, that in your view if they’re going to have this — these vanity plates, it has to be open to everybody, or they can shut the program down and nobody gets vanity plates.

But maybe if the legislature passes a law or laws saying this plate is okay, that might be okay. So what — is the, is the choice between everything or nothing, with the exception of what the legislature does is okay?

Roger James George, Jr.:

I — I believe that the best analysis is the legislature or the Motor Vehicle Commission discriminates against people’s speech on the basis of the content of the speech, that is subject to serious First Amendment concerns and is probably illegal, although there may be some exceptions to that. That’s what I think the better rule is.

But we have conflicts in circuits about that and we have not — this Court has not addressed — that is not this case, but I believe it is a — an issue —

Elena Kagan:

Mr. George, could I just take you back to the Chief Justice’s question for a moment and just make sure I understand it.

Mr. Keller has indicated that there are a number of other occasions in which the State has disapproved plates, and in which the State has done that on the grounds of offense.

Do you — do you have any objections to those representations?

Roger James George, Jr.:

To the extent that they were done on the grounds of offense, I do, because he has one that I can — that we have verified, and that one is that there was concern about a danger on — to the driver’s thinking that somebody’s state trooper plate made them a state trooper.

John G. Roberts, Jr.:

What if the argument —

Roger James George, Jr.:

That’s what he said, at least.

John G. Roberts, Jr.:

Right.

What if the argument were not simply offensive but a higher degree? You know, incitement or likely to give rise to — I mean, I think someone driving in Texas with a swastika is, you know, likely to be — to trigger public violence.

Is the level of the State’s interest at all pertinent to your position?

Roger James George, Jr.:

Well, the — this Court’s rule — law on incitement, going back to Brandenburg v. Ohio and the Ku Klux Klan rally that this Court decided was not incitement, is — is pretty thin at this point in our history, because I don’t know what the rule of incitement would be today.

Elena Kagan:

No, but Mr. George, just the worst of the worst, whether it’s the swastika or whether it’s the most offensive racial epithet that you can imagine, and if that were on a license plate where it really is provoking violence of some kind.

You know, somebody is going to ram into that car —

Roger James George, Jr.:

I just don’t — I don’t think people can — the government can discriminate on content.

They can put on the license plates that they disagree with, “This is not the State’s speech,” in big orange letters and disclaim that speech.

Sonia Sotomayor:

Where is that going to fit on the license plate?

Roger James George, Jr.:

Perfectly legitimate — huh?

Sonia Sotomayor:

Where is that going to fit on the license plate? (Laughter.)

Roger James George, Jr.:

They — but those, that’s — you can put — we have “Taxation Without Representation” on the District of Columbia’s license plate and that’s a political message.

Roger James George, Jr.:

They can put —

Anthony M. Kennedy:

Your position is that if you prevail, a license plate can have a racial slur. That’s your position?

Roger James George, Jr.:

Yes.

I don’t think there’s any consistent decision otherwise, although the State can disclaim it, undoubtedly, on the same license plate.

Antonin Scalia:

Do you have to put “Taxation Without Representation” on your D.C. plate?

Roger James George, Jr.:

That’s my understanding.

Antonin Scalia:

Or can you ask for a clean plate?

Roger James George, Jr.:

I haven’t — well, I’m not living here, but I believe it is required.

Antonin Scalia:

If somebody objects I guess it’s like, “Live Free Or Die,” right?

Roger James George, Jr.:

They can put it — put it on — tape it over.

But you can put, obviously the disclaimer idea, Justice O’Connor came up with that in — in her concurrence in the Columbus, Ohio, Ku Klux Klan, cross on the hill case, and I thought that was a pretty good idea.

That is, that we have a disclaimer when you don’t like the speech, and you don’t believe it’s appropriate. The State can do that. And I think that’s largely part of the answers.

This is not — certainly not purely governmental speech because the action of the State is only approval. As to the Pleasant Grove, City of Utah case, monuments are in fact unique circumstances.

This Court had decided Perry — Van Orden v. Perry some years ago involving — Justice Breyer put a map of the State capital grounds with all the monuments in it, those monuments — and when that case was decided, been there over 100 years and the monument in question had been there 45 years.

Monuments are different than any kind of speech in the park, because of the nature of the — the creation.

You couldn’t — you’d have place in commons with monuments every seven feet, which is you can’t do that.

And that case turns on those facts, and I believe it is absolutely correctly decided. I’m also convinced that the Johanns v. the Livestock Marketing board is correctly decided, because it started with the statute passed by Congress telling the Department of Agriculture to do something, right where — marketing from material, have it submitted back to the secretary of agriculture, let him approve it, then go market it and levy a tax on imported beef to support it.

That’s all government speech.

Samuel A. Alito, Jr.:

Do you know how much money Texas makes from this?

Roger James George, Jr.:

I don’t have that — it’s not a line item in the budget, but lots.

Samuel A. Alito, Jr.:

That is really all this is about, isn’t it?

Roger James George, Jr.:

Yes. (Laughter.)

That’s why Texas is in the business.

And so people get to play and do business with them that they like what they are saying, and they don’t get to do business with them when they don’t like what they said.

John G. Roberts, Jr.:

Thank you, counsel. Mr. Keller, you have three minutes remaining.

Anthony M. Kennedy:

You have very limited rebuttal time and I do have one question.

You were asked a question about the Republican — the Democrat distinction and you said, Oh, there might be some other thing equal to it.

Is there a First Amendment standard that you can use to deny that plate?

Scott A. Keller:

I believe it would be government speech and therefore there would not be a First Amendment problem.

But I believe it would not be allowed because other constitutional bars would apply.

Anthony M. Kennedy:

No First Amendment.

Scott A. Keller:

Just as if a monument were put it would be the government speaking, however, it would not be allowed under other constitutional provisions. Justice Alito and Justice Kagan, if I can — if I can suggest a way to avoid the billboard problem. When the government has its name on a speech and when the — it is part of a regulatory process or a program of the government’s and there’s formal notice and comment and there’s a public vote and there’s no abridgement of traditional free speech rights, which is this case, I think that’s government speech. Justice Breyer, to address some of the other interests that Texas has here.

Texas wants to prevent offensiveness and vulgar speech and wants to prevent confusion and misrepresentation, promote safety, it wants to celebrate the diverse interests that the State has. Justice Sotomayor, you’re absolutely right that even if this is hybrid speech and it does take two to tango in this situation, you need both the motorist and the State propagating the message that that is still government speech.

All the — all of this Court’s cases on government speech have been at posture. For one clarificatory matter, all of our cites in our reply brief and our opening brief to Title 43 of the Texas Administrative Code, those have been renumbered since the filing of our reply brief, but the substance is all the same. And at base, this is not just about Texas making money, although Texas does make money.

This is about the State of Texas not wanting to place its stamp of approval on certain messages.

And a speaker is not entitled to the imprimatur of the State of Texas on whatever message that it wishes to put on a license plate. Thank you, Mr. Chief Justice.

John G. Roberts, Jr.:

Thank you, Counsel. The case is submitted.