Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review
Currently, all fifty states in the U.S. require vehicles to be registered and fitted with a unique license plate. Historically, these plates were generic and distinguishable only by the series of letters and numbers used to identify the owner of the vehicle. However, with time, license plates were customized by state with distinctive markers such as state seals, slogans, flags, etc. Beginning around the late 1980’s, states began issuing specialty license plates, decorated with emblems and verbiage designed by non-profit organizations and political groups, as a means to generate additional revenue. As these plates became more popular, litigation around the First Amendment implications of specialty plates increased. But, thirty years later, debate over this issue—whether specialty plates qualify as government or private speech and to what extent states have the right to champion one viewpoint or another via this forum—is anything but settled. In fact, the Supreme Court is set to readdress the matter later this year through review of a dispute out of the Fifth Circuit. And, although license plate text may seem like a mundane legal issue, the Court’s decision here could have potentially far-reaching implications.
What Is Government Speech and Why Does It Matter?
When contemplating First Amendment free speech rights, most people think of individual, private speech and the right of citizens to speak freely without government restriction. However, the federal courts have established that the government has a right to speak its mind, too. And where the government chooses to speak on a particular issue, it need not give equal billing to all viewpoints; rather, the government has a protected right to take sides on and express a specific viewpoint in its own messages almost entirely without restriction. As with private, individual speech, these standards are fairly well-established by the courts. Rust v. Sullivan, widely known as the Supreme Court’s first attempt at defining government speech, established the government’s right to decide where and how to spend its money around a controversial issue (in this case, the choice to limit Title X funding to programs that provided abortion information to patients). While not explicitly stated in Rust, lower courts have interpreted this decision to mean that, where government speech is implicated, the right to convey a particular viewpoint is nearly as protected as it is for private individuals. This interpretation has been accepted and endorsed by the Supreme Court in later cases as well, and the Court has continually expanded the boundaries of government speech in the years following Rust.
But the jurisprudence is less clear where the line between government and private speech is not as well-defined, especially as government becomes more involved in citizens’ private lives. In light of this, courts must ensure that the line between government and private speech is as precise as possible to ensure not only that government is able to exercise its own right to free speech, but also that private speech is protected. If this distinction is blurred, it becomes markedly easier for government to infringe on purely private speech by allowing the state to slowly expand its reach across a poorly-defined divide. Where the line between these two categories is readily apparent, government will be less able to overstep its bounds.
A Complex Circuit Split Comes Up for Review
Currently, the Supreme Court has an opportunity to reinforce the distinction between government and private speech in the area of specialty license plates. This issue has been hotly contested in lower courts and has resulted in a particularly complex circuit split. Although some scholars and litigators argue that the split is not quite so intricate, a deep reading of jurisprudence in this area reveals a fairly clear five-way split across seven circuits. In the Seventh, Eighth, and Ninth Circuits, specialty license plates are considered the private speech of the person registering the vehicle to which they are affixed and worthy of the protections afforded such speech, including the right to express viewpoints on both sides of any one issue. The Sixth Circuit has held that specialty license plates constitute pure government speech and the state may therefore express its viewpoint by, for example, permitting and promoting a “Choose Life” license plate, while rejecting proposals for a “Respect Choice” license plate.
Meanwhile, the Fourth and Fifth Circuits addressed this issue directly earlier this year with different results in each instance, further complicating an already convoluted clash amongst the circuits. Both decisions resulted in petitions for certiorari to the Supreme Court, but only the Fifth Circuit decision has been granted review by the Court, while the Fourth Circuit decision is temporarily on hold pending resolution of the Fifth Circuit dispute. Supreme Court review of this issue presents an opportunity; the Court may make significant changes to the way specialty license plates are regarded, thereby either expanding or contracting the limits on government speech. These two cases—one out of Texas and the other from North Carolina—advocate for different standards and approach the issue from different angles. But there is little doubt that the conflicts raised by these disputes reflect a deep circuit split in need of resolution.
ACLU of North Carolina v. Tata
The Fourth Circuit recently weighed in on this issue in Tata, a suit challenging North Carolina’s sales of a “Choose Life” specialty license plate. At issue in this case was not the availability of this plate alone, but the state’s concurrent refusal to offer a license plate representing the opposing viewpoint, such as “Respect Choice.” Prior to this case, the Fourth Circuit had been developing a highly complex approach to these issues, including a four-part test to establish the presence of government speech. This approach accepted that some speech is neither purely governmental nor purely private, but that a sort of “hybrid” between the two extremes was possible, and that the four-part test should be employed to establish where along the continuum the speech at issue lies. The test requires the court to look at the following:
(1) the central purpose of the program in which the speech in question occurs; (2) the degree of editorial control exercised by the government or private entities over the content of the speech; (3) the identity of the literal speaker; and (4) whether the government or the private entity bears the ultimate responsibility for the content of the speech.
Using this test in Tata, the Fourth Circuit determined that, because specialty license plates are sufficiently private, the state may offer “Choose Life” license plates without violating the First Amendment. The court made clear that this does not require states who offer “Children First” license plates to also offer “Children Last” license plates in order to prevent viewpoint discrimination. Rather, North Carolina is free to move forward with its specialty license plate program in a viewpoint neutral manner, perhaps by continuing its requirement for three hundred signatures on any request for a new specialty plate, thus effectively eliminating the state’s concern about “frivolous” proposals. Furthermore, the court suggested that North Carolina can avoid “Respect Choice” license plates by simply barring the topic of abortion from consideration altogether, a viewpoint-neutral restriction that the court would permit. As a result of this ruling, the state petitioned the Supreme Court for certiorari, but the case remains on hold pending a decision in the Texas case.
Texas Division, Sons of Confederate Veterans v. Vandergriff
Vandergriff, decided by the Fifth Circuit last July, discussed Texas’ refusal to approve a proposed specialty license plate that depicted the Confederate flag. Prior to this decision, the Fifth Circuit had consistently declined to review specialty license plate decisions, holding instead that the Tax Injunction Act prohibited federal courts from reviewing challenges to such programs because the upcharge for these license plates constituted a tax. But, the TIA also indicates that, where the suit is brought by an individual other than the taxpayer and the State stands to see an increase in revenue if the suit is successful, this jurisdictional restriction does not apply. In light of this, the Fifth Circuit undertook an analysis that addressed two questions: (1) whether specialty license plates constitute government speech or private speech, and if the latter, (2) whether the state’s decision to accept or deny a particular proposal based on the viewpoint expressed constitute an impermissible restriction of private speech.
The Fifth Circuit held that specialty license plates are not government speech, but pure private speech. Leaning on Justice Souter’s concurrence in Pleasant Grove City v. Summum, the court in Vandergriff applied a “reasonable observer test” for determination of government versus private speech, where government speech is only present when the average person would see it as such. With the first inquiry settled, the court resolved the second inquiry in favor of the Sons of Confederate Veterans, holding that Texas officials discriminated against the plaintiffs’ constitutionally protected right to speak out in support of the Confederate flag. This ruling falls in line with the Seventh, Eighth, and Ninth Circuits (as discussed infra), thereby further intensifying the split on this issue. Officials representing the state of Texas petitioned the Supreme Court for review, highlighting this conflict as the primary reason the Court should grant certiorari. Unlike ACLU v. Tata, the Court will review Vandergriff later this term.
What Happens Next?
Now that the Court has granted review on the Fifth Circuit case, the Court will once again be in a position to redefine the boundaries between governmental and private speech, further securing the First Amendment rights of individuals against government overreach. Because government speech protection is a relatively new issue before the court, several more cases after Tata and Vandergriff may be required to establish a truly workable standard for lower courts. But, given the highly contentious circuit split surrounding this issue, these two cases are a prime opportunity for the Court to set the record straight. The Court has not yet acknowledged any room for “hybrid” governmental-private speech (as was employed by the Fourth Circuit in Tata). Furthermore, the “reasonable observer test” employed by the Fifth Circuit in Vandergriff was pulled from a solo concurrence and has yet to be accepted as the majority standard by the Court. With multiple circuits employing standards with little foundation in Supreme Court jurisprudence, these two cases provide a wide-open door for the Court to establish a new standard for determining government speech versus private speech; a standard that, ideally, will create a sharp distinction between these two concepts so as to appropriately protect individual rights.
 Amy Riley Lucas, Specialty License Plates: The First Amendment and the Intersection of Government Speech and Public Forum Doctrines, 55 UCLA L. Rev. 1971, 1972-1973 (2008).
 See Andy G. Olree, Identifying Government Speech, 42 Conn. L. Rev. 365 (2009).
 Id. at 367-68 (2009).
 Where the government is speaking on issues of religion, some restrictions may be imposed by the courts due to Establishment Clause implications of such speech. Id. at 368.
 500 U.S. 173 (1991).
 Olree, supra note 4, at 374.
 Rust, 500 U.S. at 194-95.
 Olree, supra note 4, at 374-75 (citing Sons of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d 610, 617-18 (4th Cir. 2002); Wells v. City & County of Denver, 257 F.3d 1132, 1140 (10th Cir. 2001); and ACLU of Tenn. v. Bredesen, 441 F.3d 370, 378 (6th Cir. 2006)).
 Id. at 375-77 (citing Johanns v. Livestock Mktg. Ass’n, 544 U.S. 405, 410 (2001); Bd. Of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 221 (2000); and Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547-48 (2001) among others, illustrating that government speech cannot be restricted merely because it espouses one particular viewpoint over another on whatever controversial issue is at hand).
 “Identifying government speech becomes more difficult as governments become more and more involved in facilitating private speech, on the one hand, and in sending their own messages, on the other. When a private speaker uses governmental property or support as she sends her message, who is really speaking? How can we tell? The higher the level of governmental support and involvement, the more the speech looks like the government’s own speech, particularly because governments now send so many messages of their own, and because this government may have made some affirmative decision to permit this particular speaker to use governmental resources, a decision similar in many respects to the decision to speak. But private speech does not become government speech simply because the government allows the speaker to use governmental resources to get the message out.” Id. at 369.
 See Brief in Opposition to Petition for Writ of Certiorari, Texas Division, Sons of Confederate Veterans v. Vandergriff, 759 F.3d 388 (5th Cir. 2014) (No. 14-144), petition for cert. granted, Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 2014 U.S. LEXIS 8119 (U.S. 2014); and Brief in Opposition to Petition for Writ of Certiorari, American Civil Liberties Union of North Carolina v. Tata, 742 F.3d 563 (4th Cir. 2014) (No. 14-35).
 Scott W. Gaylord, “Kill the Sea Turtles” and Other Things You Can’t Make the Government Say, 71 Wash. & Lee L. Rev. 93, 99 (Winter, 2014) (citing Roach v. Stouffer, 560 F.3d 860, 867 (8th Cir. 2009)). The author of this article is, notably, Counsel of Record for Petitioners in the North Carolina specialty license plate suit pending review by the Supreme Court.
 Id. (citing ACLU of Tenn. v. Bredesen, 441 F.3d 370, 376 (6th Cir. 2006)).
 Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 2014 U.S. LEXIS 8119 (2014) (order granting cert.).
 John Elwood, Relist Watch, SCOTUSblog (Dec. 4, 2014, 2:05 PM), http://www.scotusblog.com/2014/12/relist-watch-49/. Although not explicitly stated by the Court, it is believed that the specialty license plate case out of North Carolina is being held pending a decision from the Court on the Texas case, as decision on one will likely set precedent that resolves the other.
 Brief on Petition for Writ of Certiorari, 1; Tata, 742 F.3d 563; Brief on Petition for Writ of Certiorari, Vandergriff, 759 F.3d 388.
 742 F.3d 563.
 Not only had legislation been passed creating the “Choose Life” license plate, multiple attempts to add a “Respect Choice” license plate had been summarily rejected by North Carolina’s state legislature. Id. at 565-66.
 Gaylord, supra note 13, at 99 (citing Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 794 (4th Cir. 2004)).
 Rose, 361 F.3d at 795-99.
 Id. at 792-93.
 Tata, at 574.
 Id. at 575.
 Elwood, supra note 16.
 759 F.3d 388 (5th Cir. 2014). petition for cert. granted, Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 2014 U.S. LEXIS 8119 (U.S. 2014).
 This act states that federal courts may not “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” Tax Injunction Act, 28 U.S.C. § 1341 (2012). See Gaylord, supra note 13, at 99 (citing Henderson v. Stalder, 407 F.3d 351, 359 (5th Cir. 2005)).
 Vandergriff, 759 F.3d at 392 (citing Hibbs v. Winn, 542 U.S. 88 (2004)).
 Id. at 390.
 Id. at 394-95.
 555 U.S. 460, 487 (2009) (Souter, J. concurring in the judgment, stating that monuments erected in public parks are clearly government speech, as would be presumed by any “reasonable and fully informed observer”). It should be noted that these statements by Justice Souter are not supported by the majority opinion in this case and are in direct conflict with the holding from an earlier case, Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005), which held that “the correct focus is not on whether the . . . audience realizes the Government is speaking.” This earlier case is heavily cited by the majority in Summum.
 Vandergriff, 759 F.3d at 394-95.
 Id. at 397-98.
 Vandergriff Petition for Writ of Certiorari, supra note 16, at 10-16.
 Walker, 2014 U.S. LEXIS 8119.
 American Civil Liberties Union of North Carolina v. Tata, 742 F.3d 563, 568 (4th Cir. 2014)