An Overview Of Small And Disadvantaged Business Contracting - Seidman & Associates, P.C.
many small firms find government work to be financially rewarding.
Most small businesses find it difficult, however, to participate in the federal procurement process. The fact is that most federal contracting dollars are awarded on a noncompetitive basis.2 Although ready, willing, and able to perform government work at lower prices, small businesses have been repeatedly discouraged by contracting officials who find it easier to deal with larger firms.3 Small businesses also find it difficult to deal with the paper work and other requirements peculiar to contracting with Uncle Sam.
To realize the strategic benefits of small business participation in the defense industrial base, the declared policy of Congress, as stated in the Small Business Act, is to “aid, counsel, assist, and protect . . . the interests of small business concerns” and “insure that a fair proportion of the total purchases and contracts or subcontracts . . . be placed with small business enterprises.”4 To achieve this objective, certain advantages have been given to small businesses and to small businesses owned by disadvantaged persons in the procurement process. These benefits will Se discussed in detail below, following a discussion of what a small business is.
Many small businesses are family owned. Often the sale or gift of part of a business to another family member will be proposed to remain within applicable small business size standards. SBA regulations provide, however, that members of the same family have an identity of interest and are treated as one person. 14 If read literally, this rule would result in the affiliation of all businesses owned or controlled by members of the same family. The SBA Site Appeals Board has ruled, however, that family relationship alone does not establish affiliation. In Size Appeal of Maintenance Engineers, 15 for example the board found two concerns unaffiliated where a father owned 100 percent of company A and his son, a former officer of company A, owned 83 percent of company B. The board emphasized that firms A and B had separate books and offices, were in different lines of business, had no contractual relations, and were financially independent.
A contracting officer may, at any time after bid opening, question the size status of any offeror by filing a protest with the SBA.26 Thus, even if a protester is late, his protest may be considered for the instant procurement, if the contracting officer adopts the protest as his own. Protesters should not count on contracting officers adopting late protests as their own, however.
Any other identifiable interested person.
More detailed guidance on OHA procedures can be found in SBA contained in 13 C.F.R, Part 121.11.
There is often a question whether a solicitation for a small business set-aside includes the correct size standard. As noted above, small business size standards are established by standard industrial classification code (commonly referred to as SIC code), prepared and published by the Office of Management and Budget. The ultimate question is generally whether a solicitation contains the size standard for the correct SIC code.
The use of an improper SIC code can be detrimental to small business bidders. If too high a standard is used, as a result of using either the wrong SIC code or a clerical error, large businesses can compete for and be awarded contracts set aside for small business. Small business concerns should therefore be prepared to take timely action to assure that a proper size standard is used.
If there is sufficient time, it is advisable to first bring the perceived error to the contracting officer’s attention. In many cases, a contracting officer will acknowledge the error, cancel or amend the defective solicitation, and resolicit using the correct size standard. It is important to leave enough time to submit a timely appeal to SBA if necessary.
Note that a contracting officer is not barred from amending a solicitation to correct an improper size standard just because the time for appealing to the SBA has elapsed. It is not good practice to count on this, however. Any oral communications or understandings reached with a contracting officer should be promptly confirmed in writing.
Set-aside programs are of three basic types. The first is the traditional set-aside under which contracts may be set aside for small business concerns if there is adequate small business competition.44 The second is small business small purchase set-asides, established in 1978 under Public Law 95-507 amendments to the Small Business Act. These amendments reserve for small business concerns contracts that are under $10,000 and subject to small purchase procedures, unless the contracting officer is unable to find two or more small business concerns capable of performing.” The third type is small business innovation research (SBIR) set-asides under Public Law 97-219.
Procurement regulations provide that contracts, or a class of contracts, “shall” be set aside for small business if the contracting officer determines that there is a reasonable expectation that 1) bids or proposals will be received from at least two small businesses offering the products of different small businesses and 2) an award will be made at a reasonable price.46 The word “shall” appears to make set-asides mandatory if the required conditions are met. In practice, however, set asides are highly discretionary with contracting officials.
Irrespective of a contractor’s percentage contribution, it will not qualify as a manufacturer if its efforts are limited to subdividing and packaging the end product. For example in Size Appeal of Platt & Son, Inc.,55 it was held that although a firm’s contribution consisted of 51 percent of the contract price, it did not qualify as a manufacturer of wire rope where it would just cut, lubricate, seize the ends of, coil, build boxes for, and ship the end product.
Based on the .language enacted by Congress, small business/small purchase set-asides appear superior to the standard set-asides in several respects. To begin, there is a statutory presumption that these contracts are suitable for a set-aside. To establish a standard set aside, it must be affirmatively demonstrated that there are two or more small businesses willing to bid. Under small business/small purchase set-asides, a requirement is set aside unless the contracting officer is unable to find two or more small business bidders. To the further advantage of small businesses, these set-asides use simplified small purchase procedures and provide for expedited payment. Unfortunately for the small business community, as often is the case, appearance belies reality.
The rule that a contract must be set aside unless the contracting officer is unable to find at least two small business bidders has led contracting officers to overlook small businesses ready, willing, and able to bid. Contracts for aircraft spare parts are a prime example. These contracts are repeatedly awarded to the same large firms on a noncompetitive basis, with the actual work often performed by small business subcontractors with whom the armed services choose not to contract directly.
A recently promulgated regulation, aimed at fostering spare parts competition, exempts contracts with an annual buy value of under $10,000 from screening for new sources. 58 This rule perpetuates the sole-source award of such contracts to members of the Fortune 500.
“Numerous studies have shown that small businesses are our Nation’s most efficient and fertile source of innovations. Yet only 3.5 to 4 percent of the Federal R. & D. dollar is spent with small firms. This underutilization of small businesses in Federal R. & D. programs is especially regrettable when considering the highly successful track record of small firms in generating jobs, tax revenues, and other economic and societal benefits.
“According to the Office of Federal Procurement Policy, between 1953 and 1973, firms with fewer than 1,000 employees accounted for approximately one-half of the major U.S. innovations. Moreover, these firms had a ratio of innovations to R. & D. employment which was four times greater than that found in larger firms and a total cost per R. & D. scientist or engineer which was about one-half that found in firms of over 1,000 employees.
“Similarly, a National Science Foundation survey of major innovations introduced in to the market between 1953 and 1973 found that small firms produced about 24 times as many innovations per R. & D. dollar as large firms and 4 times as many as medium sized firms.
“Studies also show the important role of small innovative businesses in creating jobs and stimulating economic growth. David Birch of MIT found that firms with 500 or less employees provided 87 percent of all new jobs in the United States between 1969 and 1976. He also found that the best job creator was the small high technology-based firm.
For a firm to be awarded a government contract, a determination must be made that it is responsible (i.e., capable of performing).85 To be determined responsible, a prospective contractor must meet the general standards set forth in FAR 9.104-1.
However, small businesses may request review by the SBA of a contracting officer’s negative responsibility determination. The SBA is also given the final authority, under the Small Business Act 5 8(b)(7),87 to determine whether a small business is a “manufacturer” or “regular dealer” eligible for contract award under the Walsh-Healy Public Contracts Act, 41 U.S.C. 5 35(a). The review contemplated is conducted under SBA’s certificate of competency program.
Recent controversy has focused on the use of bidder prequalification by contracting officials to avoid the certificate of competency process. Under bidder prequalification, a business is required to demonstrate its capability to perform before submitting a bid or proposal. Procuring agencies have taken the position that a small business is entitled to certificate of competency review only if it would have been awarded a contract except for a contracting officer’s negative responsibility determination. If a small business is precluded from bidding, this stage in the procurement process is never reached.
Many small businesses prefer to sell to the government indirectly as subcontractors to avoid the bureaucratic entanglement involved in federal prime contracting.
Subcontracting plans are required to include percentage subcontracting goals for small businesses in general and small businesses owned and controlled by socially and economically disadvantaged individuals. The plans are also required to describe the efforts that will be taken to meet these goals.104 Furthermore, the procuring agency must determine that the plan provides maximum practicable opportunity for subcontracting to small businesses and small businesses owned and operated by socially and economically disadvantaged individuals. The failure of a contractor to comply with a subcontracting plan is a “breach of contract” justifying a termination for default.”105 Despite numerous cases of noncompliance, however, this drastic remedy is apparently not being used.
For subcontracting assistance, information on subcontracting opportunities can be obtained from SBA field offices. Subcontracting opportunities can also be identified in the Commerce Business Daily listings of prime contract awards.
A potential subcontractor should realize that subcontracts are commercial rather than government contracts. Unlike’ the government, which is required to deal with potential sources on an impartial basis, a prime contractor can generally deal with whomever it wants. Therefore, a potential subcontractor should use the same marketing techniques used with its other commercial accounts.
To be admitted to the 8(a) program, as discussed below, a firm must be owned and operated by “‘socially and economically disadvantaged individuals” and have a reasonable prospect of success. The substantial economic benefits available to disadvantaged firms include the award of federal contracts on a sole-source basis, interest-free loans in the form of advance payments, and the outright gift of government funds known as business development expense (BDE).
Because of the few firms graduating from the program, Congress in Pub. L. 96-481 required fixed program participation terms (RPTs) for all 8(a) firms. Implementing regulations set the maximum FPM at five years, plus a possible extension for up to two years.109 These aspects of the 8(a) program will now be addressed.
“(A) The individual’s social disadvantage must stem from his or her color; national origin; gender; physical handicap; long-term resident in an environment isolated from the mainstream of American society; or other similar cause not common to small business persons who are not socially disadvantaged.
“(B) The individual must demonstrate that he or she has personally suffered social disadvantage, not merely claim membership in a non-designated group which could be considered socially disadvantaged.
“(C) The individual’s social disadvantage must be rooted in treatment which he or she has experienced in American society, not in other countries.
“(D) The individual’s social disadvantage must be chronic, long-standing, and substantial, not fleeting or insignificant.
An otherwise eligible small business must demonstrate “that with contract, financial, technical, and management support the small business will be able to perform contracts which may be awarded to such concern . . . and has reasonable prospects for success in competing in the private sector.”118 The SBA considers, in addition to the firm’s potential, the finite SBA resources for assisting 8(a) firms.119 Thus a promising construction firm could be denied entry because not enough construction opportunities are available.
The “Catch-22” of obtaining entry to the program is demonstrating both economic disadvantage and a reasonable prospect for success. Stated otherwise, to obtain program entry an applicant must simultaneously demonstrate that it is economically disadvantaged, but not too economically disadvantaged.
A federal contract placed in the program is first awarded without competition to the SBA. It is then subcontracted (again without competition) to an 8(a) firm.122 This two tier approach is used because most disadvantaged firms are small businesses. As intended by Congress,123 however, 8(a) concerns bear the brunt of negotiating the contracts and dealing with the procuring agency during contract performance. In fact, it has been held that this scheme results in privity of contract between the procuring agency and the 8(a) subcontractor.
The purpose of the 8(a) program is to pro vide assistance to firms owned by disadvantaged individuals until they demonstrate their ability to compete in the marketplace without 8(a) assistance. Few firms have graduated, however. This has made SBA unable to admit new firms into the program.
The prudent small business person should attempt to maximize the advantages incident to small business status in marketing to the Government. Even with such advantages, however, small businesses will find it difficult to overcome contracting officials’ preference for dealing with larger firms.
The answer to our contracting problems is to let small businesses openly compete with large defense contractors rather than continue to make awards to the large firms on a non-competitive basis. It is to be hoped that the recent revelations that the armed service pay $750 for a pair of pliers, $1,100 for plastic stool, and $9,600 for simple hexagonal wrenches will lead to a move in that direction.
1. Source: Federal Procurement Data Center, Standard Report, April 1, 1984, and Special Report 1226A, July 26, 1984.
2. 56.3 percent or $75.1 billion of the $133 billion in contracts placed by DoD in FY 84 were awarded noncompetitively. Federal Procurement Data System Standard Report Fiscal Year 1984 Fourth Quarter, p. 25 (1985).
3. See Seidman, “How to Save A Few Billion Dollars: Defense Bureaucrats Could Save That Much by Contracting With Smaller Companies.” Inc., 12 (February 1982).
4. Small Business Act, Section 2(a), 15 U.S.C. §631(a).
6. 13 C.F.R. §121.2 (1985).
7. 49 Federal Register 5024, February 9, 1984.
8. Standard Industrial Classification Manual (1972) and 1977 Supplement, prepared by Statistical Policy Office, Office of Management and Budget.
9. See 13 C.F.R. §121.3(a)(vi)(C).
13. Size Appeal of Propper International Inc., Size Appeal #769 (July 24, 1975). 14. 13 C.F.R. §121.3(a)(ii).
15. Size Appeal #770 (July 30, 1975). To the same effect: In the Matter of Kasper Brothers, Size Appeal #1252 (April 9, 1979); Size Appeal of Eastern Trans-Waste Corp., Size Appeal #1569 (July 13, 1982).
17. Size Appeal #1728, (1983).
18. Integrated Systems Analysts, Inc., Size Appeal #1923, (April 11, 1984). 19. 13 C.F.R. §121.5(a).
21. 18 U.S.C. §287. See also 31 U.S.C. §§3729-3730 (1983).
22. 13 C.F.R. §121.9(a); see Size Appeal of Fennell Container Co. Size Appeal #2080 (November 23, 1984). 23. 13 C.F.R. §121.9(a).
29. 48 Federal Register 55832, December 16, 1983.
32. Size Appeal of Fordice Construction Co., No. 1926, April 13, 1984. Contra Wilkinson & Jenkins v. Army Corps of Engineers, No. 85-205-Civ-J-16 (M.D. Fla. April 4, 1985) discussed at 43 BNA Federal Contracts Report 744, April 29, 1985.
42. See Pacer Systems, Inc., B-215999, 84-2 CPD %45 (1984).
43. 15 U.S.C. §644(a), FAR §19.502-1.
44. 15 U.S.C. §644, FAR §19.502-2.
52. 13 C.F.R. §§121.5(b)(l) and (2).
53. Size Appeal of Michigan Instruments Corporation, No. 2012, August 23, 1984.
54. No. 1262, June 1, 1979.
55. No. 1946, May 8, 1984.
56. Pub. L. 95-507, §221.
58. DOD FAR Supplement, Supplement No. 6, §S6-201.2(k). 59. FAR §19.501(f)(2).
65. S. Rep. No. 97-194, 97th Cong., 1st Sess. 6 (1984).
68. SBA Policy Directive on the Small Business Innovation Development Act, SOP 65 01.2 (September 84).
69. Id. at para. 4.g.
70. Id. at para. 6.c.
71. Id. at para. 6.d(l).
72. Id. at para. 12.j.(1).
73. Id. at para. 12.k.(1).
74. Id. at para. 6.b.
75. Id. at para. 10.a.
76. Id. at para. 10.b.
77. Id. at para. 6.d.(2).
78. Id. at para. 12.j.(2).
79. Id. at para. 12.k.(1).
80. Id. at para. 6.d.(3).
82. SBA Policy Directive No. 65 01.2, para. 12.e.
84. 35 U.S.C. §§200-211; OMB Bulletin 81-22, 46 Fed. Reg. 34775 (1981). For a good discussion of the Pub. L. 96-517, Patent Policy for Small Businesses and Nonprofit Organizations, see R. Nash & L. Rawicz, Patents and Technical Data, 145-161 (1983).
85. 10 U.S.C. §§2305(b)(3), 2305(b)(4)(D); 41 U.S.C. §253b. FAR §9.103(b).
88. Senate Hearings on S. 2250, 77th Cong., 2nd Sess. 89. 15 U.S.C. §637(b)(7)(A).
91. U.S. Small Business Administration, The State of Small Business: A Report to the President, March 1984, p. 329.
93. 60 Comp. Gen. 104, 80-2 CPD ¶ 419 (1980).
94. Letter from Bernard Kulik, associate administrator, for Procurement Assistance, SBA, to Michael J. Boyle, senior attorney, GAO (Mar. 20, 1981).
95. Pub. L. 98-577, §401, 15 U.S.C. §637(b)(7)(C).
96. 47 Federal Register 34972, August 12, 1982.
97. To Consider S. 2446 and Other Small Business Procurement Reforms; Hearings Before the Senate Committee on Small Business, 97th Cong., 2nd Sess., 23, 36 (1982), (Statement of Bruce N. Holn, manager, Government Affairs).
98. Pub. L. 98-577, 15 U.S.C. §637(b)(7)(C).
99. Pub. L. 95-507, §223(a).
100. Lavelle Aircraft Company, B-211479, 83-2 CPD U60, affirmed 83-2 CPD 300 (1983). 101. W.B. Jolley, B-209933, 83-1 CPD 609 (1983).
109. Pub. L. 96-481, codified at 15 U.S.C. §636(j)(10)(A)(i); 13 C.F.R. §124.1-1(£)(4).
120. SBA Standard Operating Procedure (SOP) 80-05, Chapter 7.
121. Rowe Contracting Service, Inc., B-203542, 81-2 CPD 92 (1981). 122. 15 U.S.C. §637(a)(l).
124. R & R Construction Co., VACAB No. 1101, 74-2 BCA 10857 (1974).
125. SOP 80-05, para. 52.e., and Appendix 3.
128. Smith, Millions in U.S . Loans Squandered in Minority Program, Inquiry Finds, N.Y. Times, Nov. 9, 1979, p.l.
130. SOP 80-05, para. 94.
132. SOP 80-5, para. 97.
135. SOP 80-05, para. 97.
136. Pub. L. No. 96-481, codified at 15 U.S.C. §636(j)(10)(A)(i); 13 C.F.R. §124.1-l(f)(4).
143. 13 C.F.R. §124.10 et seq.


The Guide was endorsed by the Machinery Committee on 2 June 2010.
The 2nd Edition of the Guide was completed with comments on Annexes III to XI of the Machinery Directive. Some errors noticed by readers have been corrected. Legal references and terms have been updated in line with the Lisbon Treaty - in particular, where the Directive refers to 'the Community', the Guide now refers to 'the EU'.
Following discussion with the industry, the comments relating to chains, ropes and webbing for lifting purposes in §44, §330, § 340, §341, and §357 have been revised in order to clarify the practical application of the requirements relating to these products.
The Guide is published on the Commission’s Website EUROPA in English. It is planned to translate the Guide into the other EU languages, but only the English version will be checked by the Commission, therefore, in case of doubt, the English version should be taken as the reference.
The Guide can be downloaded and is presented in a printable format. The text of the Directive is presented in boxed red italic type - the comments follow in black type. It is intended to publish regular updates of the Guide in order to introduce answers to questions agreed by the Machinery Committee and the Machinery Working Group.
The Guide takes account of the amendment to Directive 2006/42/EC introduced by Regulation (EC) N° 569/2009 relating to the regulatory procedure with scrutiny for the Machinery Committee. It also takes account of the provisions of Regulation (EC) N° 765/2008 relating to market surveillance, which apply in a complementary way.
The 2nd Edition of the Guide does not deal with the amendment to the Machinery Directive on machinery for pesticide application introduced by Directive 2009/127/EC that will become applicable on 15th December 2011. This amendment will be covered in the 3rd Edition of the Guide to be published at the end of 2010.
The Guide has been prepared with the help of an Editorial Group. The Commission wishes to warmly thank the members of the Editorial Group both for the huge amount of work they have carried out as well as for the efficient, constructive and cooperative spirit in which the drafts have been prepared. In parallel to the work of the Editorial Group, a Machinery Core Group established by ORGALIME, including representatives of the main sectors of machinery manufacturing, has provided invaluable input from the industry. The drafts prepared by the Editorial Group have been submitted to the Member States and stakeholders for comments. The Commission would also like to thank all those who have made comments. We have tried to take them into account as far as possible.
Of course, the Commission takes full responsibility for the content of the Guide. Readers are invited to communicate any corrections or comments on this 2nd Edition of the Guide so that they can be taken into account in preparing the 3rd Edition.
§79 Who is the manufacturer ?


text:
[303 U.S. 206, 207] Mr. Mac Q. Williamson, of Oklahoma City, Okl., for the motion.
Messrs. Erwin W. Clausen of St. Louis, Mo., and Jacob R. Spielman, of Oklahoma City, Okl., opposed.
Motion to dismiss, for the want of jurisdiction, an appeal from a determination of the Supreme Court of Oklahoma, made September 14, 1937, denying a 'petition for rehearing in the nature of judicial review' after a decision affirming an order of the Corporation Commission of the State fixing rates for telephone service. The motion is upon the ground that the proceeding in the state court was legislative and was not a suit within the mean- [303 U.S. 206, 208] ing of section 237 of the Judicial Code, as amended, 28 U.S.C. 344, 28 U. S.C.A. 344, governing our appellate jurisdiction.
The Constitution of Oklahoma authorizes the Corporation Commission to prescribe rates 'for transportation and transmission companies.' Article 9 , 18. Appellant, operating telephone lines, is a 'transmission company.' Article 9, 34. Appeals from the Commission may be taken only to the Supreme Court of the State. Article 9, 20. No court of the State, other than the Supreme Court by way of appeal has jurisdiction 'to review, reverse, correct, or annul' any action of the Commission within the scope of its authority, save that writs of mandamus and prohibition will lie from the Supreme Court to the Commission 'in all cases where such writs, respectively, would lie to any inferior court or officer.' Id. In case of appeal, no new or additional evidence may be introduced in the Supreme Court, but the Supreme Court has jurisdiction to consider and determine 'the reasonableness and justness of the action of the Commission appealed from, as well as any other matter arising under such appeal.' The action of the Commission is to be regarded 'as prima facie just, reasonable, and correct,' but the court may, when it deems necessary in the interests of justice, remand to the Commission any case pending on appeal 'and require the same to be further investigated by the Commission, and reported upon to the court (together with a certificate of such additional evidence as may be tendered before the Commission by any party in interest), before the appeal is finally decided.' Article 9, 22.
In the instant case, the Corporation Commission on March 18, 1935, after hearing, made its order fixing appellant's rates (Okla.Corp.Com.Rep., 1935, p. 558), and on appeal the Supreme Court of the State, on July 13, 1937, affirmed the order. 71 P.2d 747.
Appellant concedes that this decision was legislative in character, in view of the authority conferred by the above-quoted provision of section 23 of article 9 and its construction by the state court. See Pioneer Telephone & Telegraph Co. v. State, 40 Okl. 417, 425, 426, 138 P. 1033; Swain v. Oklahoma Railway Co., 168 Okl. 133, 134, 136, 32 P.2d 51; Oklahoma Cotton Ginners' Association v. State, 174 Okl. 243, 248, 251, 51 P.2d 327. Compare Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226 , 227 S., 29 S.Ct. 67; Oklahoma Gas Company v. Russell, 261 U.S. 290, 291 , 43 S.Ct. 353. But appellant contends that the Supreme Court of the State 'completed its legislative review and function by the filing of its opinion of July 13, 1937,' and that appellant was then free to invoke the jurisdiction of the court to exercise its judicial power and function by an application for 'a judicial review.' This, appellant states, was the purpose of its petition for rehearing.
At appellant's request, the state court granted supersedeas and stayed its mandate pending appellant's application for the allowance of an appeal to this Court and the determination of the appeal if taken. An appeal was then allowed by the Chief Justice of the state court and the case is thus brought here.
The Attorney General, however, does not concede that the State of Oklahoma 'does not furnish an adequate judicial review of questions such as are involved in this proposed appeal.' On the contrary, 'the State asserts that appellant has, and has had, an adequate method of relief.' When pressed upon the argument at bar to state what judicial remedy was open to appellant under the State Constitution, the Attorney General referred to the power conferred upon the Supreme Court by the proviso in section 20 of article 9 to issue writs of mandamus and prohibition to the Commission. No decision of the state court as to the questions which would be open upon an application for such a writ has been brought to our attention.
The novelty of the procedure, and the lack of exposition in the brief ruling, leave us in doubt as to the true import of the denial of the petition for rehearing. In view of the serious questions which would be raised if it were determined that the State provides no means of obtaining a judicial review of an order of the Commission fixing rates, alleged to be confiscatory, in the case of a transportation or transmission company, we should not reach such a conclusion in the absence of a definite decision by the state court to that effect. Neither party before us advances a contention that there is such a lack of judicial remedy. Appellant says that judicial review is available through the procedure appellant has chosen and that the denial of its petition for rehearing was judicial action. The Attorney General asserts the contrary, contending that judicial remedy exists but must be sought in another manner. But- assuming that the State affords a judicial remedy-whether the state court has denied appellant's petition because an application for rehearing after what is conceded by both parties to be a legislative determination was not the proper way under the state practice to invoke the judicial power, or has entertained the application and by its ruling has passed upon the controversy in a judicial capacity, we have no means of knowing.
We have repeatedly held that it is essential to the judisdiction of this Court in reviewing a decision of a court of a State that it must appear affirmatively from the record, not only that a federal question was presented for decision to the highest court of the State having jurisdiction, but that its decision of the federal question was necessary to the determination of the cause; that the federal question was actually decided or that the [303 U.S. 206, 213] judgment as rendered could not have been given without deciding it. De Saussure v. Gaillard, 127 U.S. 216, 234 , 8 S.Ct. 1053; Johnson v. Risk, 137 U.S. 300, 306 , 307 S., 11 S.Ct. 111; Wood Mowing & Reaping Machine Co. v. Skinner, 139 U.S. 293, 295 , 297 S., 11 S.Ct. 528; Whitney v. California, 274 U.S. 357, 360 , 361 S., 47 S.Ct. 641, 642, 643; Lynch v. New York, 293 U.S. 52, 54 , 55 S.Ct. 16, 17.
Applying this rule, the motion to dismiss must be granted.

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Justia › US Law › US Case Law › US Supreme Court › Volume 576 › Walker v. Tex. Div., Sons of Confederate Veterans, Inc.
Texas automobile owners can choose between general-issue and specialty license plates. People can propose a specialty plate design, with a slogan, a graphic, or both. If the Department of Motor Vehicles Board approves the design, the state makes it available. The Sons of Confederate Veterans (SCV) claimed that rejection of SCV’s proposal for a specialty plate design featuring a Confederate flag violated the Free Speech Clause. The Fifth Circuit held that Texas’s specialty license plate designs were private speech and that the Board engaged in constitutionally forbidden viewpoint discrimination. The Supreme Court reversed. Texas’s specialty license plate designs constitute government speech. When government speaks, it is not barred from determining the content of what it says; it is generally entitled to promote a program, espouse a policy, or take a position. States have long used license plates to convey government speech, e.g., slogans urging action and touting local industries and license plate designs are often closely identified in the public mind with the state. Plates serve the governmental purposes of vehicle registration and identification and are, essentially, government IDs. Texas maintains direct control over the messages conveyed on its specialty plates. Forum analysis, which applies to government restrictions on purely private speech occurring on government property, is not appropriate when the state is speaking on its own behalf. That private parties take part in the design and pay for specialty plates does not transform the government’s role into that of a mere forum provider. The Court acknowledged that the First Amendment stringently limits state authority to compel a private party to express a view with which the private party disagrees. Just as Texas cannot require SCV to convey the state’s ideological message, SCV cannot dictate design.
Specialty license plate designs offered by a state are properly classified as government speech, which means that they are not subject to strict content and viewpoint restrictions under the Free Speech Clause of the First Amendment.
WALKER, CHAIRMAN, TEXAS DEPARTMENT OF MOTOR VEHICLES BOARD, et al. v. TEXAS DIVISION, SONS OF CONFEDERATE VETERANS, INC., et al.
Texas offers automobile owners a choice between general-issue and specialty license plates. Those who want the State to issue a particular specialty plate may propose a plate design, comprising a slogan, a graphic, or both. If the Texas Department of Motor Vehicles Board approves the design, the State will make it available for display on vehicles registered in Texas. Here, the Texas Division of the Sons of Confederate Veterans and its officers (collectively SCV) filed suit against the Chairman and members of the Board (collectively Board), arguing that the Board’s rejection of SCV’s proposal for a specialty plate design featuring a Confederate battle flag violated the Free Speech Clause. The District Court entered judgment for the Board, but the Fifth Circuit reversed, holding that Texas’s specialty license plate designs are private speech and that the Board engaged in constitutionally forbidden viewpoint discrimination when it refused to approve SCV’s design.
Held: Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring SCV’s proposed design. Pp. 5–18.
(a) When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Pleasant Grove City v. Summum, 555 U. S. 460 –468. A government is generally entitled to promote a program, espouse a policy, or take a position. Were the Free Speech Clause interpreted otherwise, “it is not easy to imagine how government would function.” Id., at 468. That is not to say that a government’s ability to express itself is without restriction. Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech, and the Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech. Pp. 5–6.
(b) This Court’s precedents regarding government speech provide the appropriate framework through which to approach the case. Pp. 6–17.
(1) The same analysis the Court used in Summum—to conclude that a city “accepting a privately donated monument and placing it on city property” was engaging in government speech, 555 U. S., at 464—leads to the conclusion that government speech is at issue here. First, history shows that States, including Texas, have long used license plates to convey government speech, e.g., slogans urging action, promoting tourism, and touting local industries. Cf. id., at 470. Second, Texas license plate designs “are often closely identified in the public mind with the [State].” Id., at 472. Each plate is a government article serving the governmental purposes of vehicle registration and identification. The governmental nature of the plates is clear from their faces: the State places the name “TEXAS” in large letters across the top of every plate. Texas also requires Texas vehicle owners to display license plates, issues every Texas plate, and owns all of the designs on its plates. The plates are, essentially, government IDs, and ID issuers “typically do not permit” their IDs to contain “message[s] with which they do not wish to be associated,” id., at 471. Third, Texas maintains direct control over the messages conveyed on its specialty plates, by giving the Board final approval over each design. Like the city government in Summum, Texas “has effectively controlled the messages [conveyed] by exercising final approval authority over their selection.” Id., at 473. These considerations, taken together, show that Texas’s specialty plates are similar enough to the monuments in Summum to call for the same result. Pp. 7–12.
(2) Forum analysis, which applies to government restrictions on purely private speech occurring on government property, Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788 , is not appropriate when the State is speaking on its own behalf. The parties agree that Texas’s specialty license plates are not a traditional public forum. Further, Texas’s policies and the nature of its license plates indicate that the State did not intend its specialty plates to serve as either a designated public forum—where “government property . . . not traditionally . . . a public forum is intentionally opened up for that purpose,” Summum, supra, at 469—or a limited public forum—where a government “reserv[es a forum] for certain groups or for the discussion of certain topics,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 . The State exercises final authority over the messages that may be conveyed by its specialty plates, it takes ownership of each specialty plate design, and it has traditionally used its plates for government speech. These features of Texas specialty plates militate against a determination that Texas has created a public forum. Finally, the plates are not a nonpublic forum, where the “government is . . . a proprietor, managing its internal operations.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672 –679. The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum provider. See Summum, supra, at 470–471. Nor does Texas’s requirement that vehicle owners pay annual fees for specialty plates mean that the plates are a forum for private speech. And this case does not resemble other nonpublic forum cases. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37 –49; Lehman v. Shaker Heights, 418 U. S. 298 ; and Cornelius, supra, at 804–806, distinguished. Pp. 13–17.
(c) The determination that Texas’s specialty license plate designs are government speech does not mean that the designs do not also implicate the free speech rights of private persons. The Court has acknowledged that drivers who display a State’s selected license plate designs convey the messages communicated through those designs. See Wooley v. Maynard, 430 U. S. 705 , n. 15. The Court has also recognized that the First Amendment stringently limits a State’s authority to compel a private party to express a view with which the private party disagrees. Just as Texas cannot require SCV to convey “the State’s ideological message,” id., at 715, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates. Pp. 17–18.
759 F. 3d 388, reversed.
Breyer, J., delivered the opinion of the Court, in which Thomas, Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Kennedy, JJ., joined.
JOHN WALKER, III, CHAIRMAN, TEXAS DEPARTMENTOF MOTOR VEHICLES BOARD, et al., PETITIONERS v. TEXAS DIVISION, SONS OF CONFEDERATE VETERANS, INC., et al.
Texas offers automobile owners a choice between ordinary and specialty license plates. Those who want the State to issue a particular specialty plate may propose a plate design, comprising a slogan, a graphic, or (most commonly) both. If the Texas Department of Motor Vehicles Board approves the design, the State will make it available for display on vehicles registered in Texas.
In this case, the Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a Confederate battle flag. The Board rejected the proposal. We must decide whether that rejection violated the Constitution’s free speech guarantees. See Amdts. 1, 14. We conclude that it did not.
Here we are concerned only with the second category of plates, namely specialty license plates, not with the personalization program. Texas offers vehicle owners a va-riety of specialty plates, generally for an annual fee. See §217.45(b)(2). And Texas selects the designs for specialty plates through three distinct processes.
First, the state legislature may specifically call for the development of a specialty license plate. See Tex. Transp. Code §§504.602–504.663 (West 2013 and Supp. 2014). The legislature has enacted statutes authorizing, for example, plates that say “Keep Texas Beautiful” and “Mothers Against Drunk Driving,” plates that “honor” the Texas citrus industry, and plates that feature an image of the World Trade Center towers and the words “Fight Terrorism.” See §§504.602, 504.608, 504.626, 504.647.
In 2009, the Sons of Confederate Veterans, Texas Division (a nonprofit entity), applied to sponsor a specialty license plate through this last-mentioned process. SCV’s application included a draft plate design. See Appendix, infra. At the bottom of the proposed plate were the words “SONS OF CONFEDERATE VETERANS.” At the side was the organization’s logo, a square Confederate battle flag framed by the words “Sons of Confederate Veterans 1896.” A faint Confederate battle flag appeared in the back-ground on the lower portion of the plate. Additionally,in the middle of the plate was the license plate number, and at the top was the State’s name and silhouette. The Board’s predecessor denied this application.
In 2010, SCV renewed its application before the Board. The Board invited public comment on its website and at an open meeting. After considering the responses, including a number of letters sent by elected officials who opposed the proposal, the Board voted unanimously against issuing the plate. The Board explained that it had found “it necessary to deny th[e] plate design application, specifically the confederate flag portion of the design, because public comments ha[d] shown that many members of the general public find the design offensive, and because such comments are reasonable.” App. 64. The Board added “that a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.” Id., at 65.
In 2012, SCV and two of its officers (collectively SCV) brought this lawsuit against the chairman and members of the Board (collectively Board). SCV argued that the Board’s decision violated the Free Speech Clause of the First Amendment, and it sought an injunction requiring the Board to approve the proposed plate design. The District Court entered judgment for the Board. A divided panel of the Court of Appeals for the Fifth Circuit reversed. Texas Div., Sons of Confederate Veterans, Inc., v. Vandergriff, 759 F. 3d 388 (2014). It held that Texas’s specialty license plate designs are private speech and that the Board, in refusing to approve SCV’s design, engaged in constitutionally forbidden viewpoint discrimination. The dissenting judge argued that Texas’s specialty license plate designs are government speech, the content of which the State is free to control.
We granted the Board’s petition for certiorari, and we now reverse.
When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Pleasant Grove City v. Summum, 555 U. S. 460 –468 (2009). That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235 (2000) . Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. See Johanns v. Livestock Marketing Assn., 544 U. S. 550, 559 (2005) . Instead, the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect its electoral mandate. See Stromberg v. California, 283 U. S. 359, 369 (1931) (observing that “our constitutional system” seeks to maintain “the opportunity for free political discussion to the end that government may be responsive to the will of the people”).
Were the Free Speech Clause interpreted otherwise, government would not work. How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization? “[I]t is not easy to imagine how government could function if it lacked th[e] freedom” to select the messages it wishes to convey. Summum, supra, at 468.
We have therefore refused “[t]o hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals.” Rust v. Sullivan, 500 U. S. 173, 194 (1991) . We have pointed out that a contrary holding “would render numerous Government programs constitutionally suspect.” Ibid. Cf. Keller v. State Bar of Cal., 496 U. S. 1 –13 (1990) (“If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed”). And we have made clear that “the government can speak for itself.” Southworth, supra, at 229.
That is not to say that a government’s ability to express itself is without restriction. Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech. Summum, supra, at 468. And the Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech. But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.
In our view, specialty license plates issued pursuant to Texas’s statutory scheme convey government speech. Our reasoning rests primarily on our analysis in Summum, a recent case that presented a similar problem. We conclude here, as we did there, that our precedents regarding government speech (and not our precedents regarding forums for private speech) provide the appropriate framework through which to approach the case. See 555 U. S., at 464.
In Summum, we considered a religious organization’s request to erect in a 2.5-acre city park a monument setting forth the organization’s religious tenets. See id., at 464–465. In the park were 15 other permanent displays. Id., at 464. At least 11 of these—including a wishing well, a September 11 monument, a historic granary, the city’s first fire station, and a Ten Commandments monument—had been donated to the city by private entities. Id., at 464–465. The religious organization argued that the Free Speech Clause required the city to display the organization’s proposed monument because, by accepting a broad range of permanent exhibitions at the park, the city had created a forum for private speech in the form of monuments. Brief for Respondent in Pleasant Grove City v. Summum, O. T. 2008, No. 07–665, pp. 2–3, 30–36.
This Court rejected the organization’s argument. We held that the city had not “provid[ed] a forum for private speech” with respect to monuments. Summum, 555 U. S., at 470. Rather, the city, even when “accepting a privately donated monument and placing it on city property,” had “engage[d] in expressive conduct.” Id., at 476. The speech at issue, this Court decided, was “best viewed as a form of government speech” and “therefore [was] not subject to scrutiny under the Free Speech Clause.” Id., at 464.
We based our conclusion on several factors. First, his-tory shows that “[g]overnments have long used monuments to speak to the public.” Id., at 470. Thus, we observed that “[w]hen a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.” Ibid.
Second, we noted that it “is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated.” Id., at 471. As a result, “persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner’s behalf.” Ibid. And “observers” of such monuments, as a consequence, ordinarily “appreciate the identity of the speaker.” Ibid.
Third, we found relevant the fact that the city maintained control over the selection of monuments. We thought it “fair to say that throughout our Nation’s his-tory, the general government practice with respect to do-nated monuments has been one of selective receptivity.” Ibid. And we observed that the city government in Summum “ ‘effectively controlled’ the messages sent by the monuments in the [p]ark by exercising ‘final approval authority’ over their selection.” Id., at 473.
In light of these and a few other relevant considerations, the Court concluded that the expression at issue was government speech. See id., at 470–472. And, in reaching that conclusion, the Court rejected the premise that the involvement of private parties in designing the monuments was sufficient to prevent the government from controlling which monuments it placed in its own public park. See id., at 470–471. Cf. Rust, supra, at 192–196 (upholding a federal regulation limiting speech in aGovernment-funded program where the program was established and administered by private parties).
Our analysis in Summum leads us to the conclusion that here, too, government speech is at issue. First, the history of license plates shows that, insofar as license plates have conveyed more than state names and vehicle identification numbers, they long have communicated messages from the States. Cf. 555 U. S., at 470 (“Governments have long used monuments to speak to the public”). In 1917, Arizona became the first State to display a graphic on its plates. J. Fox, License Plates of the United States 15 (1997) (Fox); J. Minard & T. Stentiford, A Moving History 56 (2004) (Minard). The State presented a depiction of the head of a Hereford steer. Fox 15; Minard 56. In the years since, New Hampshire plates have featured the profile of the “Old Man of the Mountain,” Massachusetts plates have included a representation of the Commonwealth’s famous codfish, and Wyoming plates have displayed a rider atop a bucking bronco. Minard 60, 61, 66.
In 1928, Idaho became the first State to include a slogan on its plates. The 1928 Idaho plate proclaimed “Idaho Potatoes” and featured an illustration of a brown potato, onto which the license plate number was superimposed in green. Id., at 61. The brown potato did not catch on, but slogans on license plates did. Over the years, state plates have included the phrases “North to the Future” (Alaska), “Keep Florida Green” (Florida), “Hoosier Hospitality” (Indiana), “The Iodine Products State” (South Carolina), “Green Mountains” (Vermont), and “America’s Dairyland” (Wisconsin). Fox 13, 29, 39, 91, 101, 109. States have used license plate slogans to urge action, to promote tourism, and to tout local industries.
Texas, too, has selected various messages to communicate through its license plate designs. By 1919, Texas had begun to display the Lone Star emblem on its plates. Texas Department of Transportation, The History of Texas License Plates 9, 11 (1999). In 1936, the State’s general-issue plates featured the first slogan on Texas license plates: the word “Centennial.” Id., at 20. In 1968, Texas plates promoted a San Antonio event by including the phrase “Hemisfair 68.” Id., at 46. In 1977, Texas replaced the Lone Star with a small silhouette of the State. Id., at 63. And in 1995, Texas plates celebrated “150 Years of Statehood.” Id., at 101. Additionally, the Texas Legislature has specifically authorized specialty plate designs stating, among other things, “Read to Succeed,” “Houston Livestock Show and Rodeo,” “Texans Conquer Cancer,” and “Girl Scouts.” Tex. Transp. Code Ann. §§504.607, 504.613, 504.620, 504.622. This kind of state speech has appeared on Texas plates for decades.
Second, Texas license plate designs “are often closely identified in the public mind with the [State].” Summum, supra, at 472. Each Texas license plate is a government article serving the governmental purposes of vehicle registration and identification. The governmental nature of the plates is clear from their faces: The State places the name “TEXAS” in large letters at the top of every plate. More-over, the State requires Texas vehicle owners to display license plates, and every Texas license plate is issued by the State. See §504.943. Texas also owns the designs on its license plates, including the designs that Texas adopts on the basis of proposals made by private individuals and organizations. See §504.002(3). And Texas dictates the manner in which drivers may dispose of unused plates. See §504.901(c). See also §504.008(g) (requiring that vehicle owners return unused specialty plates to the State).
Texas license plates are, essentially, government IDs. And issuers of ID “typically do not permit” the placement on their IDs of “message[s] with which they do not wish to be associated.” Summum, 555 U. S., at 471. Consequently, “persons who observe” designs on IDs “routinely—and reasonably—interpret them as conveying some message on the [issuer’s] behalf.” Ibid.
Third, Texas maintains direct control over the messages conveyed on its specialty plates. Texas law provides that the State “has sole control over the design, typeface, color, and alphanumeric pattern for all license plates.” §504.005. The Board must approve every specialty plate design proposal before the design can appear on a Texas plate. 43 Tex. Admin. Code §§217.45(i)(7)–(8), 217.52(b). And the Board and its predecessor have actively exercised this authority. Texas asserts, and SCV concedes, that the State has rejected at least a dozen proposed designs. Reply Brief 10; Tr. of Oral Arg. 49–51. Accordingly, like the city government in Summum, Texas “has ‘effectively controlled’ the messages [conveyed] by exercising ‘final approval authority’ over their selection.” 555 U. S., at 473 (quoting Johanns, 544 U. S., at 560–561).
This final approval authority allows Texas to choose how to present itself and its constituency. Thus, Texas offers plates celebrating the many educational institutions attended by its citizens. See Tex. Transp. Code Ann. §504.615. But it need not issue plates deriding schooling. Texas offers plates that pay tribute to the Texas citrus industry. See §504.626. But it need not issue plates praising Florida’s oranges as far better. And Texas offers plates that say “Fight Terrorism.” See §504.647. But it need not issue plates promoting al Qaeda.
These considerations, taken together, convince us that the specialty plates here in question are similar enough to the monuments in Summum to call for the same result. That is not to say that every element of our discussion in Summum is relevant here. For instance, in Summum we emphasized that monuments were “permanent” and we observed that “public parks can accommodate only a limited number of permanent monuments.” 555 U. S., at 464, 470, 478. We believed that the speech at issue was government speech rather than private speech in part because we found it “hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression.” Id., at 479. Here, a State could theoretically offer a much larger number of license plate designs, and those designs need not be available for time immemorial.
But those characteristics of the speech at issue in Summum were particularly important because the government speech at issue occurred in public parks, which are traditional public forums for “the delivery of speeches and the holding of marches and demonstrations” by private citizens. Id., at 478. By contrast, license plates are not traditional public forums for private speech.
And other features of the designs on Texas’s specialty license plates indicate that the message conveyed by those designs is conveyed on behalf of the government. Texas, through its Board, selects each design featured on the State’s specialty license plates. Texas presents these designs on government-mandated, government-controlled, and government-issued IDs that have traditionally been used as a medium for government speech. And it places the designs directly below the large letters identifying “TEXAS” as the issuer of the IDs. “The [designs] that are accepted, therefore, are meant to convey and have the effect of conveying a government message, and they thus constitute government speech.” Id., at 472.
SCV believes that Texas’s specialty license plate designs are not government speech, at least with respect to the designs (comprising slogans and graphics) that were initially proposed by private parties. According to SCV, the State does not engage in expressive activity through such slogans and graphics, but rather provides a forum for private speech by making license plates available to display the private parties’ designs. We cannot agree.
We have previously used what we have called “forum analysis” to evaluate government restrictions on purely private speech that occurs on government property. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 800 (1985) . But forum analysis is misplaced here. Because the State is speaking on its own behalf, the First Amendment strictures that attend the various types of government-established forums do not apply.
The parties agree that Texas’s specialty license plates are not a “traditional public forum,” such as a street or a park, “which ha[s] immemorially been held in trust for the use of the public and, time out of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37 –46 (1983) (internal quotation marks omitted). “The Court has rejected the view that traditional public forum status extends beyond its historic confines.” Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666 , 678 (1998). And state-issued specialty license plates lie far beyond those confines.
It is equally clear that Texas’s specialty plates are neither a “ ‘designated public forum,’ ” which exists where “government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose,” Summum, supra, at 469, nor a “limited public forum,” which exists where a government has “reserv[ed a forum] for certain groups or for the discussion of certain topics,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995) . A government “does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius, 473 U. S., at 802. And in order “to ascertain whether [a government] intended to designate a place not traditionally open to assembly and debate as a public forum,” this Court “has looked to the policy and practice of the government” and to “the nature of the property and its compatibility with expressive activity.” Ibid.
Texas’s policies and the nature of its license plates indicate that the State did not intend its specialty license plates to serve as either a designated public forum or a limited public forum. First, the State exercises final authority over each specialty license plate design. This authority militates against a determination that Texas has created a public forum. See id., at 803–804 (explaining that a school mail system was not a public forum because “[t]he practice was to require permission from the individual school principal before access to the system to communicate with teachers was granted”). Second, Texas takes ownership of each specialty plate design, making it particularly untenable that the State intended specialty plates to serve as a forum for public discourse. Finally, Texas license plates have traditionally been used for government speech, are primarily used as a form of government ID, and bear the State’s name. These features of Texas license plates indicate that Texas explicitly associates itself with the speech on its plates.
For similar reasons, we conclude that Texas’s specialty license plates are not a “nonpublic for[um],” which exists “[w]here the government is acting as a proprietor, managing its internal operations.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672 –679 (1992). With respect to specialty license plate designs, Texas is not simply managing government property, but instead is engaging in expressive conduct. As we have described, we reach this conclusion based on the historical context, observers’ reasonable interpretation of the messages conveyed by Texas specialty plates, and the effective control that the State exerts over the design selection process. Texas’s specialty license plate designs “are meant to convey and have the effect of conveying a government message.” Summum, 555 U. S., at 472. They “constitute government speech.” Ibid.
The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider. In Summum, private entities “financed and donated monuments that the government accept[ed] and display[ed] to the public.” Id., at 470–471. Here, similarly, private parties propose designs that Texas may accept and display on its license plates. In this case, as in Summum, the “government entity may exercise [its] freedom to express its views” even “when it receives assistance from private sources for the purpose of delivering a government-controlled message.” Id., at 468. And in this case, as in Summum, forum analysis is inapposite. See id., at 480.
Of course, Texas allows many more license plate designs than the city in Summum allowed monuments. But our holding in Summum was not dependent on the precise number of monuments found within the park. Indeed, we indicated that the permanent displays in New York City’s Central Park also constitute government speech. See id., at 471–472. And an amicus brief had informed us that there were, at the time, 52 such displays. See Brief for City of New York in Pleasant Grove City v. Summum, O. T. 2008, No. 07–665, p. 2. Further, there may well be many more messages that Texas wishes to convey through its license plates than there were messages that the city in Summum wished to convey through its monuments. Texas’s desire to communicate numerous messages does not mean that the messages conveyed are not Texas’s own.
Additionally, the fact that Texas vehicle owners pay annual fees in order to display specialty license plates does not imply that the plate designs are merely a forum for private speech. While some nonpublic forums provide governments the opportunity to profit from speech, see, e.g., Lehman v. Shaker Heights, 418 U. S. 298, 299 (1974) (plurality opinion), the existence of government profit alone is insufficient to trigger forum analysis. Thus, if the city in Summum had established a rule that organizations wishing to donate monuments must also pay fees to assist in park maintenance, we do not believe that the result in that case would have been any different. Here, too, we think it sufficiently clear that Texas is speaking through its specialty license plate designs, such that the existence of annual fees does not convince us that the specialty plates are a nonpublic forum.
Finally, we note that this case does not resemble other cases in which we have identified a nonpublic forum. This case is not like Perry Ed. Assn., where we found a school district’s internal mail system to be a nonpublic forum for private speech. See 460 U. S., at 48–49. There, it was undisputed that a number of private organizations, including a teachers’ union, had access to the mail system. See id., at 39–40. It was therefore clear that private parties, and not only the government, used the system to communicate. Here, by contrast, each specialty license plate design is formally approved by and stamped with the imprimatur of Texas.
Nor is this case like Lehman, where we found the advertising space on city buses to be a nonpublic forum. See R. A. V. v. St. Paul, 505 U. S. 377, 390, n. 6 (1992) (identifying Lehman as a case about a nonpublic forum). There, the messages were located in a context (advertising space) that is traditionally available for private speech. And the advertising space, in contrast to license plates, bore no indicia that the speech was owned or conveyed by the government.
Nor is this case like Cornelius, where we determined that a charitable fundraising program directed at federal employees constituted a nonpublic forum. See 473 U. S., at 804–806. That forum lacked the kind of history present here. The fundraising drive had never been a medium for government speech. Instead, it was established “to bring order to [a] solicitation process” which had previously consisted of ad hoc solicitation by individual charitable organizations. Id., at 792, 805. The drive “was designed to minimize . . . disruption to the [federal] workplace,” id., at 805, not to communicate messages from the government. Further, the charitable solicitations did not appear on a government ID under the government’s name. In contrast to the instant case, there was no reason for employees to “interpret [the solicitation] as conveying some message on the [government’s] behalf.” Summum, 555 U. S., at 471.
Our determination that Texas’s specialty license plate designs are government speech does not mean that the designs do not also implicate the free speech rights of private persons. We have acknowledged that drivers who display a State’s selected license plate designs convey the messages communicated through those designs. See Wooley v. Maynard, 430 U. S. 705 , n. 15, 715 (1977) (observing that a vehicle “is readily associated with its operator” and that drivers displaying license plates “use their private property as a ‘mobile billboard’ for the State’s ideological message”). And we have recognized that the First Amendment stringently limits a State’s authority to compel a private party to express a view with which the private party disagrees. See id., at 715; Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995) ; West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) . But here, compelled private speech is not at issue. And just as Texas cannot require SCV to convey “the State’s ideological message,” Wooley, supra, at 715, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates.
The Court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing. Under our First Amendment cases, the distinction between government speech and private speech is critical. The First Amendment “does not regulate government speech,” and therefore when government speaks, it is free “to select the views that it wants to express.” Pleasant Grove City v. Summum, 555 U. S. 460 –468 (2009). By contrast, “[i]n the realm of private speech or expression, government regulation may not favor one speaker over another.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828 (1995) .
Unfortunately, the Court’s decision categorizes private speech as government speech and thus strips it of all First Amendment protection. The Court holds that all the privately created messages on the many specialty plates issued by the State of Texas convey a government message rather than the message of the motorist displaying the plate. Can this possibly be correct?
As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games—Notre Dame, Oklahoma State, the University of Okla-homa, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?
The Court says that all of these messages are government speech. It is essential that government be able to express its own viewpoint, the Court reminds us, because otherwise, how would it promote its programs, like recycling and vaccinations? Ante, at 5–6. So when Texas issues a “Rather Be Golfing” plate, but not a “Rather Be Playing Tennis” or “Rather Be Bowling” plate, it is furthering a state policy to promote golf but not tennis or bowling. And when Texas allows motorists to obtain a Notre Dame license plate but not a University of South-ern California plate, it is taking sides in that long-time rivalry.
This capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous. They make motorists happy, and they put money in a State’s coffers. But the precedent this case sets is dangerous. While all license plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a privategroup wanted to post on some of these little billboards be-cause the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.
If the State can do this with its little mobile billboards, could it do the same with big, stationary billboards? Suppose that a State erected electronic billboards along its highways. Suppose that the State posted some government messages on these billboards and then, to raise money, allowed private entities and individuals to purchase the right to post their own messages. And suppose that the State allowed only those messages that it liked or found not too controversial. Would that be constitutional?
What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen.
Specialty plates like those involved in this case are a recent development. License plates originated solely as a means of identifying vehicles. In 1901, New York became the first State to require automobiles to be licensed, but rather than issue license plates itself, New York required drivers to display their initials on their cars. J. Minard & T. Stentiford, A Moving History 50 (2004). Two years later, Massachusetts became the first State to issue license plates. The plates said “Mass. Automobile Register” and displayed the vehicle’s registration number. Id., at 51. Plates of this type—featuring a registration number, the name of the State, and sometimes the date—were the standard for decades thereafter. See id., at 52–94; see also generally, J. Fox, License Plates of the United States 10–99 (1997).
Texas license plates initially followed this pattern. When the first official state plate appeared in 1917, it featured a number and the abbreviation “TEX.” Texas Department of Transportation, The History of Texas License Plates 9 (1999) (History). In 1925, the year of issue was added, and the State began issuing plates that identified certain vehicle types, e.g., “C-M” for commercial trucks (1925), id., at 14–15; “FARM” for farm trucks (1935), id., at 22; “Overwidth” (1949), id., at 32; “House Trailer” (1951), id., at 36. In 1936, a special plate with the word “CENTENNIAL” was created to mark the State’s 100th birthday, and the first plate identifying the owner as a “State Official” appeared two years later. Id., at 20, 25. Starting in the 1950’s, Texas began issuing plates to identify some other registrants, such as “Amateur Radio Operator” (1954), id., at 38, “State Judge” (1970) id., at 64; and “Disabled Veteran,” (1972), id., at 79.
A sesquicentennial plate appeared in 1985, and two years later, legislation was introduced to create a bronze license plate with 14-karat gold-plated lettering, available for a fee of $1,000. Id., at 81. The proposal aimed to make the State a profit, but it failed to pass. Ibid.
It was not until 1989 that anything that might be considered a message was featured regularly on Texas plates. The words “The Lone Star State” were added “as a means of bringing favorable recognition to Texas.” Id., at 82.
Finally, in the late 1990’s, license plates containing a small variety of messages, selected by the State, became available for the first time. Id., at 101. These messages included slogans like “Read to Succeed,” “Keep Texas Beautiful,” “Animal Friendly,” “Big Bend National Park,” “Houston Livestock Show and Rodeo,” and “Lone Star Proud.” Id., at 101, 113. Also issued in the 1990’s were plates bearing the names of colleges and universities, and some plates (e.g., “State of the Arts,” “State Capitol Restoration”) were made available to raise funds for special purposes. Id., 101.
Once the idea of specialty plates took hold, the number of varieties quickly multiplied, and today, we are told, Texas motorists can choose from more than 350 messages, including many designs proposed by nonprofit groups or by individuals and for-profit businesses through the State’s third-party vendor. Brief for Respondents at 2; see also Texas Department of Motor Vehicles, online at http://www.txdmv.gov / motorists / license-plates / specialty - license-plates (all Internet materials as visited June 12, 2015,and available in Clerk of Court’s case file); http://www.myplates.com.
Drivers can select plates advertising organizations and causes like 4–H, the Boy Scouts, the American Legion, Be a Blood Donor, the Girl Scouts, Insure Texas Kids, Mothers Against Drunk Driving, Marine Mammal Recovery, Save Texas Ocelots, Share the Road, Texas Reads, Texas Realtors (“I am a Texas Realtor”), the Texas State Rifle Association (“WWW.TSRA.COM”), the Texas Trophy Hunters Association, the World Wildlife Fund, the YMCA, and Young Lawyers.
There are plates for fraternities and sororities and for in-state schools, both public (like Texas A & M and Texas Tech) and private (like Trinity University and Baylor). An even larger number of schools from out-of-state are honored: Arizona State, Brigham Young, Florida State, Michigan State, Alabama, and South Carolina, to name only a few.
There are political slogans, like “Come and Take It” and “Don’t Tread on Me,” and plates promoting the citrus industry and the “Cotton Boll.” Commercial businesses can have specialty plates, too. There are plates advertising Remax (“Get It Sold with Remax”), Dr. Pepper (“Always One of a Kind”), and Mighty Fine Burgers.
“The Board has considered the information and finds it necessary to deny this plate design application, specifically the confederate flag portion of the design, because public comments have shown that many members of the general public find the design offensive, and because such comments are reasonable. The Board finds that a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.” Id., at 64–65.
The Board also saw “a compelling public interest in protecting a conspicuous mechanism for identification, such as a license plate, from degrading into a possible public safety issue.” Id., at 65. And it thought that the public interest required rejection of the plate design because the controversy surrounding the plate was so great that “the design could distract or disturb some drivers to the point of being unreasonably dangerous.” Ibid.
At the same meeting, the Board approved a Buffalo Soldiers plate design by a 5-to-3 vote. Proceeds from fees paid by motorists who select that plate benefit the Buffalo Soldier National Museum in Houston, which is “dedicated primarily to preserving the legacy and honor of the African American soldier.” Buffalo Soldier National Museum, online at http://www.buffalosoldiermuseum.com. “Buffalo Soldiers” is a nickname that was originally given to black soldiers in the Army’s 10th Cavalry Regiment, which was formed after the Civil War, and the name was later used to describe other black soldiers. W. Leckie & S. Leckie, The Buffalo Soldiers: A Narrative of the Black Cavalry in the West 21, 26–27 (2003). The original Buffalo Soldiers fought with distinction in the Indian Wars, but the “Buf-falo Soldiers” plate was opposed by some Native Americans. One leader commented that he felt “ ‘the same way about the Buffalo Soldiers’ ” as African-Americans felt about the Confederate flag. Scharrer, Specialty License Plates can Bring in Revenue, But Some Stir Up Controversy, Hous-ton Chronicle, Nov. 26, 2011, P.B2. “ ‘When we see the U. S. Cavalry uniform,’ ” he explained, “ ‘we are forced to relive an American holocaust.’ ” Ibid.
Relying almost entirely on one precedent—Pleasant Grove City v. Summum, 555 U. S. 460 —the Court holds that messages that private groups succeed in placing on Texas license plates are government messages. The Court badly misunderstands Summum.
In Summum, a private group claimed the right to erect a large stone monument in a small city park. Id., at 464. The 2.5-acre park contained 15 permanent displays, 11 of which had been donated by private parties. Ibid. The central question concerned the nature of the municipal government’s conduct when it accepted privately donated monuments for placement in its park: Had the city created a forum for private speech, or had it accepted donated monuments that expressed a government message? We held that the monuments represented government speech, and we identified several important factors that led to this conclusion.
First, governments have long used monuments as a means of expressing a government message. As we put it, “[s]ince ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power.” Id., at 470. Here in the United States, important public monuments like the Statue of Liberty, the Washington Monument, and the Lincoln Memorial, express principles that inspire and bind the Nation together. Thus, long experience has led the public to associate public monuments with government speech.
Second, there is no history of landowners allowing their property to be used by third parties as the site of large permanent monuments that do not express messages that the landowners wish to convey. See id., at 471. While “[a] great many of the monuments that adorn the Nation’s public parks were financed with private funds or donated by private parties,” “cities and other jurisdictions take some care in accepting donated monuments” and select those that “conve[y] a government message.” Id., at 471–472. We were not presented in Summum with any examples of public parks that had been thrown open for private groups or individuals to put up whatever monuments they desired.
Third, spatial limitations played a prominent part in our analysis. See id., at 478–479. “[P]ublic parks can accommodate only a limited number of permanent monuments,” and consequently permanent monuments “monopolize the use of the land on which they stand and interfere permanently with other uses of public space.” Ibid. Because only a limited number of monuments can be built in any given space, governments do not allow their parks to be cluttered with monuments that do not serve a government purpose, a point well understood by those who visit parks and view the monuments they contain.
These characteristics, which rendered public monuments government speech in Summum, are not present in Texas’s specialty plate program.
I begin with history. As we said in Summum, governments have used monuments since time immemorial to express important government messages, and there is no history of governments giving equal space to those wishing to express dissenting views. In 1775, when a large gilded equestrian statue of King George III dominated Bowling Green, a small park in lower Manhattan, the colonial governor surely would not have permitted the construction on that land of a monument to the fallen at Lexington and Concord. When the United States accepted the Third French Republic’s gift of the Statue of Liberty in 1877, see id., at 477, Congress, it seems safe to say, would not have welcomed a gift of a Statue of Authoritarianism if one had been offered by another country. Nor is it likely that the National Park Service today would be receptive if private groups, pointing to the Lincoln Memorial, the Martin Luther King, Jr., Memorial, and the Vietnam Veterans Memorial on the National Mall, sought permission to put up monuments to Jefferson Davis, Orval Faubus, or the North Vietnamese Army. Governments have always used public monuments to express a government message, and members of the public understand this.
The history of messages on license plates is quite different. After the beginning of motor vehicle registration in 1917, more than 70 years passed before the proliferation of specialty plates in Texas. It was not until the 1990’s that motorists were allowed to choose from among 10 messages, such as “Read to Succeed” and “Keep Texas Beautiful.” History at 101.
Up to this point, the words on the Texas plates can be considered government speech. The messages were created by the State, and they plausibly promoted state programs. But when, at some point within the last 20 years or so, the State began to allow private entities to secure plates conveying their own messages, Texas crossed the line.
The contrast between the history of public monuments, which have been used to convey government messages for centuries, and the Texas license plate program could not be starker.
In an attempt to gather historical support for its position, the Court relies on plates with the mottos or symbols of other States. As the Court notes, some of these were issued well before “The Lone Star State” made its debut in Texas in 1991. Id., at 82. But this history is irrelevant for present purposes. Like the 1991 Texas plate, these out-of-state plates were created by the States that issued them, and motorists generally had no choice but to accept them. For example, the State of New Hampshire made it a crime to cover up the words “Live Free or Die” on its plates. See Wooley v. Maynard, 430 U. S. 705 (1977) .
The words and symbols on plates of this sort were and are government speech, but plates that are essentially commissioned by private entities (at a cost that exceeds $8,000) and that express a message chosen by those entities are very different—and quite new. Unlike in Summum, history here does not suggest that the messages at issue are government speech.
The Texas specialty plate program also does not exhibit the “selective receptivity” present in Summum. To the contrary, Texas’s program is not selective by design. The Board’s chairman, who is charged with approving designs, explained that the program’s purpose is “to encourage private plates” in order to “generate additional revenue for the state.” Ibid., 58. And most of the time, the Board “base[s] [its] decisions on rules that primarily deal with reflectivity and readability.” Ibid. A Department brochure explains: “Q. Who provides the plate design? A. You do, though your design is subject to reflectivity, legibility, and design standards.” Id., at 67.b.
Pressed to come up with any evidence that the State has exercised “selective receptivity,” Texas (and the Court) rely primarily on sketchy information not contained in the record, specifically that the Board’s predecessor (might have) rejected a “pro-life” plate and perhaps others on the ground that they contained messages that were offensive. See ante, at 11 (citing Reply Brief 10 and Tr. of Oral Arg. 49–51). But even if this happened, it shows only that the present case may not be the only one in which the State has exercised viewpoint discrimination.
Texas’s only other (also extrarecord) evidence of selectivity concerns a proposed plate that was thought to create a threat to the fair enforcement of the State’s motorvehicle laws. Reply Brief 9–10 (citing publicly avail-able Transcript of Texas Department of Motor Vehicles Board Meeting, Aug. 9, 2012, p. 112, online at http://www. txdmv. gov / reports - and - data / doc _ download / 450 – 2012 –tran-aug9). This proposed plate was a Texas DPS Troopers Foundation (Troopers) plate, proposed in 2012. The Board considered that proposed plate at an August 2012 meeting, at which it approved six other plate designs without discussion, but it rejected the Troopers plate in a deadlocked vote due to apparent concern that the plate could give the impression that those displaying it would receive favored treatment from state troopers. Id., at 109–112. The constitutionality of this Board action does not necessarily turn on whether approval of this plate would have made the message government speech. If, as I believe, the Texas specialty plate program created a limited public forum, private speech may be excluded if it is inconsistent with the purpose of the forum. Rosenberger, 515 U. S., at 829.
Thus, even if Texas’s extrarecord information is taken into account, the picture here is different from that in Summum. Texas does not take care to approve only those proposed plates that convey messages that the State supports. Instead, it proclaims that it is open to all private messages—except those, like the SCV plate, that would offend some who viewed them.
The Court believes that messages on privately created plates are government speech because motorists want a seal of state approval for their messages and therefore prefer plates over bumper stickers. Ante, at 10–11. This is dangerous reasoning. There is a big difference between government speech (that is, speech by the government in furtherance of its programs) and governmental blessing (or condemnation) of private speech. Many private speakers in a forum would welcome a sign of government approval. But in the realm of private speech, government regulation may not favor one viewpoint over another. Rosenberger, supra, at 828.
A final factor that was important in Summum was space. A park can accommodate only so many permanent monuments. Often large and made of stone, monuments can last for centuries and are difficult to move. License plates, on the other hand, are small, light, mobile, and designed to last for only a relatively brief time. The only absolute limit on the number of specialty plates that a State could issue is the number of registered vehicles. The variety of available plates is limitless, too. Today Texas offers more than 350 varieties. In 10 years, might it be 3,500?
In sum, the Texas specialty plate program has noneof the factors that were critical in Summum, and the Texas program exhibits a very important characteristic that was missing in that case: Individuals who want to display a Texas specialty plate, instead of the standardplate, must pay an increased annual registration fee.See http://www.dmv.org/tx-texas/license-plates.php. How many groups or individuals would clamor to pay $8,000 (the cost of the deposit required to create a new plate) in order to broadcast the government’s message as opposed to their own? And if Texas really wants to speak out in support of, say, Iowa State University (but not the University of Iowa) or “Young Lawyers” (but not old ones), why must it be paid to say things that it really wants to say? The fees Texas collects pay for much more than merely the administration of the program.
States have not adopted specialty license plate programs like Texas’s because they are now bursting with things they want to say on their license plates. Those programs were adopted because they bring in money. Texas makes public the revenue totals generated by its specialtyplate program, and it is apparent that the programbrings in many millions of dollars every year. Seehttp://www. txdmv. gov / reports - and - data / doc _ download / 5050 –specialty-plates-revenue-fy-1994-2014.
Texas has space available on millions of little mobile billboards. And Texas, in effect, sells that space to those who wish to use it to express a personal message—provided only that the message does not express a viewpoint that the State finds unacceptable. That is not government speech; it is the regulation of private speech.
What Texas has done by selling space on its license plates is to create what we have called a limited public forum. It has allowed state property (i.e., motor vehicle license plates) to be used by private speakers according to rules that the State prescribes. Cf. Good News Club v. Milford Central School, 533 U. S. 98 –107 (2001). Under the First Amendment, however, those rules cannot discriminate on the basis of viewpoint. See Rosenberger, 515 U. S., at 829 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) ). But that is exactly what Texas did here. The Board rejected Texas SCV’s design, “specifically the confederate flag portion of the design, because public comments have shown that many members of the general public find the design offensive, and because such comments are reason-able.” App. 64. These statements indisputably demonstrate that the Board denied Texas SCV’s design because of its viewpoint.
The Confederate battle flag is a controversial symbol. To the Texas Sons of Confederate Veterans, it is said to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil War. See id., at 15–16. To others, it symbolizes slavery, segregation, and hatred. Whatever it means to motorists who display that symbol and to those who see it, the flag expresses a viewpoint. The Board rejected the plate design because it concluded that many Texans would find the flag symbol offensive. That was pure viewpoint discrimination.
If the Board’s candid explanation of its reason for rejecting the SCV plate were not alone sufficient to establish this point, the Board’s approval of the Buffalo Soldiers plate at the same meeting dispels any doubt. The proponents of both the SCV and Buffalo Soldiers plates saw them as honoring soldiers who served with bravery and honor in the past. To the opponents of both plates, the images on the plates evoked painful memories. The Board rejected one plate and approved the other.
Like these two plates, many other specialty plates have the potential to irritate and perhaps even infuriate those who see them. Texas allows a plate with the words “Choose Life,” but the State of New York rejected such a plate because the message “ ‘[is] so incredibly divisive,’ ” and the Second Circuit recently sustained that decision. Children First Foundation, Inc. v. Fiala, ___ F. 3d ___, ___, 2015 WL 2444501, *18 (CA2, May 22, 2015). Texas allows a specialty plate honoring the Boy Scouts, but the group’s refusal to accept gay leaders angers some. Virginia, another State with a proliferation of specialty plates, issues plates for controversial organizations like the National Rifle Association, controversial commercial enterprises (raising tobacco and mining coal), controversial sports (fox hunting), and a professional sports team with a controversial name (the Washington Redskins). Allowing States to reject specialty plates based on their potential to offend is viewpoint discrimination.
The Board’s decision cannot be saved by its suggestion that the plate, if allowed, “could distract or disturb some drivers to the point of being unreasonably dangerous.” App. 65. This rationale cannot withstand strict scrutiny. Other States allow specialty plates with the Confederate Battle Flag, and Texas has not pointed to evidence that these plates have led to incidents of road rage or accidents. Texas does not ban bumper stickers bearing the image of the Confederate battle flag. Nor does it ban any of the many other bumper stickers that convey political messages and other messages that are capable of exciting the ireof those who loathe the ideas they express. Cf. Good News Club, supra, at 111–112.
Messages that are proposed by private parties and placed on Texas specialty plates are private speech, not government speech. Texas cannot forbid private speech based on its viewpoint. That is what it did here. Because the Court approves this violation of the First Amendment, I respectfully dissent.
1 Elliot, Shifting Gears, Forbes Life, Oct. 2013, pp. 55, 57.
2 The Appendix, infra, reproduces the available specialty plates mentioned throughout this opinion in order of first reference. When categories are referenced, examples from the category have been included.
3 The Statue That Was Made Into Bullets, N. Y. Times Magazine, July 21, 1901, at p.6.
4 This opinion does not address whether the unique combination of letters and/or numbers assigned to each vehicle, even when selected by the motorist, is private speech.
John Walker, III, et al.
Texas Division, Sons of Confederate Veterans, Inc., et al.


text:
Justia › US Law › Case Law › Delaware Case Law › Delaware Supreme Court Decisions › 1974 › Gimbel v. Signal Companies, Inc.
Louis S. GIMBEL, III, Plaintiff Below, Appellant, v. The SIGNAL COMPANIES, INC., et al., Defendants Below, Appellees.
Rodney M. Layton, Charles F. Richards, Jr., Stephen E. Herrmann, of Richards, Layton & Finger, Wilmington, and Denis G. McInerney, F. Arnold Daum, W. Leslie Duffy, William T. Lifland, of Cahill, Gordon & Reindel, New York City, for appellant.
Richard F. Corroon, Robert K. Payson, of Potter Anderson & Corroon, Wilmington, and Alan N. Halkett, of Latham & Watkins, Los Angeles, Cal., for The Signal Companies, Inc. and Signal Oil and Gas Co.
S. Samuel Arsht, of Morris, Nichols, Arsht & Tunnell, Wilmington, and Cyrus R. Vance, of Simpson, Thacher & Bartlett, New York City, for Burmah Oil Co.
CAREY and DUFFY, JJ., and TAYLOR, Judge, sitting.
This is a derivative action by a stockholder to enjoin his corporation, The Signal Companies, Inc., from selling all outstanding capital stock of Signal Oil & Gas Company, its wholly owned subsidiary, to Burmah Oil Incorporated. In an exhaustive opinion, the Chancellor ruled that a preliminary injunction would issue restraining the sale on condition that plaintiff give security in the amount of $25 million. Del.Ch., 316 A.2d 599 (1974). The Chancellor denied plaintiff's application for an alternative order which would have permitted the transaction to be completed upon a "hold separate" basis without requiring a bond of such large amount.
*620 Plaintiff appeals on two grounds: First, the amount of security required by the Court was unreasonable, and, second, the Court should have implemented its conclusion by a hold separate order.
As the opinion of the Chancellor shows, the facts of the case are complex; but the legal issues, as we see them, are relatively plain. In making our judgment we have assumed without deciding that the issues (as to form of order and amount of security) are appealable. And we have also assumed that the Chancellor had the power to grant relief in the form of a hold separate order as plaintiff requested.
We have concluded that the Chancellor did not abuse his discretion in refusing to issue a hold separate order or in fixing the amount of security. Cf. Data General Corp v. Digital Computer Controls, Inc., Del.Supr., 297 A.2d 437 (1972); Richard Paul, Inc. v. Union Improvement Co., Del. Supr., 33 Del.Ch. 113, 91 A.2d 49 (1952); and see Detroit Trust Co. v. Campbell River Timber Co., 9 Cir., 98 F.2d 389 (1938). His opinion shows a careful concern for all aspects of these matters and a full weighing of their implications. Under these circumstances, his judgment was not arbitrarily made, nor was the result unreasonable.
Applying the traditional standards applicable to review of a ruling by the Court of Chancery in an appeal of the type involved here, the judgment is affirmed. Compare Daniel D. Rappa, Inc. v. Hanson, Del.Supr., 209 A.2d 163 (1965); General Foods Corporation v. Cryo-Maid, Inc., Del.Supr., 198 A.2d 681 (1964).
"No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. Any security given as a condition to the issuance of a restraining order shall also constitute security for any preliminary injunction subsequently issued and requiring security."
 In this context "hold separate" means, in substance, that the parties could consummate the proposed sale but each would be restrained from taking any action which would have the effect of preventing rescission (if ordered).
 Because of the time urgencies this appeal was heard on an accelerated briefing and argument schedule and a ruling was announced shortly after the hearing was completed. Under these circumstances we made the assumptions stated and considered the appeal on the issues argued.

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