Legal Case Summary

We'll hear argument first this morning in case 14144 John Walker versus the Texas Division of the Sons of Confederate Veterans Mr. Keller Thank You Mr. Chief Justice and may it please the Court Messages on Texas license plates are government speech the state of Texas etches its name Onto each license plate and Texas law gives the state sole control and final approval authority over everything that appears on a license plate as in Sumam Texas is not abridging any traditional free speech rights motorists remain free to speak in all sorts of ways including on their cars through a bumper sticker right next to a license plate or a Car-sized paint job or a window decal But the first amendment does not mean that a motorist can compel any government to place its impromotor on the Confederate battle flag on its license plate Well, where are what are the problems with the scheme is it's nebulous founded It would have been regarded as offensive to many people I mean is it government speech to say mighty fine burgers to advertise a product? The government yet yes, Justice Ginsburg the government is allowed to choose the messages that it wishes to and simply because it is approved Parochial messages or has endorsed messages or is accepting and generating revenue to get to Propagate those messages doesn't defeat the fact that it is government speech when the library of Congress for instance take sponsorship from the Washington Post or Wells Fargo for the National Book Festival That's still government speech when they then put it on their website suppose Texas erected 500 electronic billboards around the state and on those billboards they posted some government messages where you're seatbelt when you're driving for example, but then at the bottom people could put a message of their choice What would that be government speech? Justice Lita, I think the portion that the government had final approval authority and sole control over that would be government speech if the government though doesn't have sole control or final approval authority over another portion I think that the bottom of the government has the same kind of approval authority that it has here it will allow people to say in offensive things but if they say something that's offensive then they won't allow that that would be government speech. It would be government speech under I think the best reading of both Suleiman Jo Hans to the other is precedent that you have final approval authority and the government isn't abridging other traditional free speech rights but even if that weren't- But I'm sorry I don't understand almost anything the government does it has final authority to veto and whether it's a school or a government website it always retains the authority to say no the issue is when can it say no constitutionally so I don't think it's merely that and in Suleiman the government actually created the words that were that were being advertised so isn't that substantially different because the government's not creating these words. Well just a certain more a few points on sumum the court indicated that- That's the monument case I'm talking about Johannes. That's right and in sumum though the a private organization the fraternal order of eagles put its name on the monument it created the message and then donated it to the park in jail hands yes the government did create a program to espouse the message beef its what's for dinner but even then as the court recognized the secretary of agro calls or didn't write ad copy so it's not as if the government had control- sorry the government had control it just was not at every step of the way saying this is how the message must be but at the end of the day it had final approval authority but you're turned to justice Alito's hypothetical and what the test should be. The test can include other elements and even if sumum in jail hands could be read as just a two-part test for all sorts of reasons this is government speech here Texas has its name on every license plate. There's a formal process here of notice and comment and the board takes a public vote before approving any specialty license. Mr. County- Do you want us to hold that because its government speech the government can engage in viewpoint discrimination? Is that what I'm supposed to write? That's right Justice Kennedy and the court has recognized that in sumum and injure. And does that have any limits Mr. Keller I mean suppose somebody submitted a license plate to Texas that said vote Republican and Texas said yes that's fine and then the next person submitted a license plate to Texas and it said vote Democratic and Texas said no we're not going to approve that one what about that? Yeah Justice King I don't think our position would necessarily allow that but I think that doesn't. Well why wouldn't it have not been? Because the establishment clause the equal protection clause do process close. Other independent constitutional bars could apply as just. Well this is not an establishment clause issue so I'm curious as to what constitutional constraints you think there are and how they would play out as to the kind of hypothetical I just gave you. Absolutely Justice King. I think partisan speech, candidate speech as just as Stevens concurrence in sumum recognized and Justice Scalia's concurrence and finely recognized there could be other constitutional bars such as the equal protection clause in the Oregon Supreme Court. I think all you have to say is whatever prevents Texas itself in all of its other activities never mind license plates from saying vote Republican. Absolutely. I mean you put the same question what stops Texas from saying in all of its election literature that it passes out vote Republican. I think something prevents that and whatever prevents that would prevent it on the license plates too though. That's correct Justice Scalia which is why that issue is one of government speech in general but the court has recognized unanimously that the government can speak that the government speech doctrine does not allow or sorry that the government can speak even if it is going to take certain viewpoints and not on the law. What case do you want me to read to show that the government can engage in viewpoint discrimination when it's its own speech? Which the monument cases? Yes Justice Kennedy. So Sula would be the best example. Is this a case where the state, the government has aided in creating a new kind of public form. People don't go to parks anymore. If the government bought 17 soap boxes to put around the park that's government property but the government can't prohibit what kind of speech goes on there. Why is this a new public form in a new era? I don't think it's a public form for private speech for various reasons. The court has never recognized a public form for private speech when the government places its name on the message, when it completely controls the message in the form. When it's receiving notice and comment from the public

. No, but that's circular. The whole question is whether you can control the message. You're assuming the answer to the question? Yes, Justice Kennedy. I think the court has looked at governmental intent to determine whether there's a public form for private speech. And for all of the reasons that we're pointing out that this is government speech, it is the same, it is the flip side of why a public form hasn't been created. So I'm not quite sure why it's government speech since there's no clear identifiable policy, at least it's argumentable, there's none, that the state is articulating. I mean, the only doing is to get the money. Mr. Chief Justice, a singular programmatic message. I don't think can be part of any administrative test for government because government must speak in all sorts of ways. The court and Summa indicated that the 52 structures in New York Central Park were all government speech. And yet, those, if it's a wide array of messages, such as Alice in Wonderland. Well, but it's here. I mean, you could have conflicting messages. I mean, what is the government policy between allowing, you know, University of Texas plates and University of Oklahoma plates? The state of Texas can absolutely promote the educational diversity of its citizens. Oh, okay. What's its policy between permitting a mighty fine burger place, plates, and, you know, pretty good burgers plates? Mr. Chief Justice is an Austin, Texas establishment. The state of Texas, if it wanted to, could promote that message. But even if mighty fine burgers weren't a Texas establishment, Texas is allowed to endorse speech. And just because it would be generating revenues, so it's endorsing speech, it is the government speech. The analogy would be an endorsement of such as a professional athlete. For professional athlete, for instance, places a logo or product, or otherwise, on some apparel at the athlete is wearing. That's still the speech of the athlete. But the athlete doesn't advertise, you know, Nike on his jersey and Adidas on his shoes. You can see one message. That athlete is endorsing this brand. But Texas will put its name on anything, and the idea that this is their speech. Again, the only thing that unifies it is they get money from it

. Mr. Chief Justice, I don't think Texas is ready. It's a personal process with a public vote. But does you tell me yourself, you began, you said its name is etched on the license plate. Every message that is actually appearing on the license plate, yes. That is the state's message. How many of them are there? As of the beginning of this month, there were 438 specialty plates, 269 of which were available for general public use. How many have you disapproved other than this one? We addressed that argument on our private briefing pages 9-11. Texas has, sorry, Texas agencies have denied about a dozen plates. Some of that information is in the records, if it is not. And what other ones have you disapproved? The Board's predecessor denied a pro-life plate. The Board itself denied a Texas DPS Troopers Foundation plate. And the Board's predecessor also denied about a dozen other plates. Also, the vote on the ground of offense. The information is not clear as to what the grounds for those denials were. The legislature itself has also repealed multiple specialty plates that it also had created. So this shows that, could I ask Mr. Keller, if you go down to Texas and you just stare at license plates, are most of them just the standard license plate and then these 400 license plates you see very rarely? Or do most people actually have one of these specialty plates? Well, there is a wide range of even most plates are still the standard plate. But there is a substantial percentage that are not, it is not by any means unusual to see a specialty plate. It would not be unusual to see a specialty plate in the state of Texas. But the state of Texas, by etching its name on it, can keep in control of what appears on license plates, it is still the state's message. What is the limits of this argument? That is what concerns me. And your answer to my billboard question was disturbing. But suppose people still did go to parks and the state had an official state soapbox at the park. And everyone is in a while and a state official would mount the soapbox and say, they give some official state announcement. But other times people who pay to fee would be allowed to go up there and say something that they wanted, provided that it was approved and advanced by the state. Would that be official state speech? Justice Leigh, I think they were starting to cross over into a situation, what this court and assume, called a subterfuge, that if you are a bridging traditional free speech rights, if you are limiting access to a traditional public forum, then that would be an instance where government speech is crowding out speech and therefore a race constitute. Why hasn't this become traditional? I don't mean to interrupt Justice Leigh, but I think on the same point. Why isn't this become traditional now that you've allowed it? You've opened a new forum

. I don't think it's become traditional because Texas has always maintained control over its plates. And it has always exercised editorial control. So unlike a park which has been held since time immemorial for the benefit of the public to speak, license plates are irregular for you. You want us to say the public for work and not evolve over time according to the... People don't go to parks anymore, they drive. Just get it. Absolutely. The public traditional public forum can't evolve over time. But the indicia of a traditional public forum still has to be one that is open. And Texas has not opened license plates. If other states want it to. In a world in which you've approved 400 license plates and they're pretty common in the state of Texas and you've only disapproved, very select few, you know, it does seem as though you've basically given relinquished your control over this and you know, made it a people's license plate for whatever private speech people want to say. Just kick it out. I think it would be odd to say that it's private speech when the board is taking a public vote and receiving notice and comment, a very governmental function of when the government wants to act. And then it's placing its name on the license plate. When the government is placing its name on the license plate, it is accepting and signifying that this is the government's message. And even if you think they'd have notice and comment for every one of them, the 430 on that it's approved every time there's a request, does it, is there a notice and comment procedure? If it's a legislature created plate, the legislature, of course, would do it. And then there wouldn't be an agency notice and comment proceeding. But under the existing law, notice and comment would be required for every specialty plate approved by the agency, which is all specialty plates that are not approved by the legislature. I think a good analog to this case would be the U.S. Postal Services Postage Stamp Program. There, the U.S. is placing its name directly on the medium. Thousands of stamps have been issued in the past. And yet there is also private input that is allowed onto what those postage stamps are going to look like

. And just as respondents can speak in all sorts of ways on a bumper sticker right next to a license plate or on the envelope on which a stamp would appear, that doesn't mean that someone is allowed responsive speech to whatever appears on a stamp or whatever appears on a license plate. The Texas also have specialty plates in so far as the letters or numbers of the plates are concerned. I mean, can you get a license plate that says hot stuff or something like that? Justice Scalia, we do have personalized plates in Texas. And are those censored? I mean, can you use a dirty word on those? This speech there is controlled completely by the State of Texas. Texas. And this is not in the record. Even though the individual selects hot stuff or whatever other message he wants to put. So I guess if this is not allowed, we can't allow that either. Yes, Justice Scalia. I mean, dirty words, or people are entitled to use dirty words. Justice Scalia, the courts holding in this case, I believe, would directly affect personalized plates. And when I'm not sure your analogy to the Postal Service really works because none of us can imagine the Postal Service having commercial advertisements on its stamps. One of the license plates here for remaxed realty. You're not going to see that on a Postal stamp. Mr. Chief Justice, it may be true that the U.S. Postal Service has not chosen to engage in that type of expression. But I don't think that defeats the fact that this is still government speech. For all the conditions of the Court of Recognizing Sumam and Jo Hans, and even Justice Sanders dissent in Jo Hans that wanted it was looking for government disclosure. We have that here. We have Texas' name etched onto the license plate. Also, untenable consequences can fall from an opinion recognizing that Texas has to offer responsive speech. Texas should not have to allow speech about al-Qaeda or the Nazi party simply because it offers a license plate propagating the message fight. Well, there's an easy answer to that, which is they don't have to get in the business of selling space on their license plates to begin with. If you don't want to have the al-Qaeda license plate, don't get into the business of allowing people to buy their, you know, the space to put on whatever they want to say. Mr. Chief Justice, I believe that that would be an answer to all of the government speech cases. And I'd assume, for instance, the Court didn't say, well, if you don't want to accept the sum of monument, just don't allow monuments

. And that's because government is allowed to select the messages that it wants to propagate. And it's allowed to speak in medium that it's... Well, that might be because they've done that since the time of the Pyramids or whatever. But they haven't had license plate messages since time immemorial. So maybe that's why they shouldn't be considered just like the monuments. Mr. Chief Justice, I don't mean to suggest that they are just like the monuments, but that it is still a fixed medium and a tangible message is being displayed to a captive audience as the Court recognized in Lehman. And in those situations, the government is entitled to select the messages that it wishes to propagate, and they're going to be closely identified. Firstly, I'd rather have the license plates than the Pyramids. I don't know that we want to drive Texas to having Pyramids. Justice Scalia, we also want to retain our license plates. And that shows, I think, what this case is about. The respondents want Texas to place its stamp of approval on the Confederate battle flag through license plates. And Texas doesn't have to make that judgment. Well, I don't want to beat a dead horse, but I, if, what's the best distinction you can give me between what you do with license plates and billboards, a soap box, an official state website where people can put up a message that they want subject to state approval. If we were to write an opinion that tried to draw distinction between the license plates on one side and there's other things on the other side, what would we say? Sure, Justice Lee, I think the very first thing is Texas has its name on it. I'm not sure in the billboard example. Texas has its name on all the other things too. Sure. In this situation, we have exercised selectivity and control as my previous answer to Justice Kagan suggested a reply brief of pages 9 to 11 addresses that. Also, we market this program to the public saying specifically that no one is entitled to whatever design they want. Rather, the board of the legislature has to approve it. That's the final item of the joint appendix. So, this is not a situation where, out in the world, if you were to see a soap box in a park, that you would wonder, is this the government speaking? Is this not the government speaking? Is the government a bridging traditional free speech rights? This is a case where Texas wants to maintain and has maintained control of what it says on license plates. In respondents, everyone remains free to speak in all sorts of ways. Speeches, leafletting, TV advertisements, terrible. I really don't think that you've answered Justice Salito's question

. In every park, you need generally a permit to do certain kinds of speech. So, the government controls that permit process and tells you that it can say no. So, why is that different in the situations that it can't be merely control is what I'm saying? The ability to veto. Because that would then give you the ability to veto. You could create a program in every public forum that basically controls in the same way. Justice Salito, I think there's a difference. We need to be clear about what approval means. If approval means access to a forum and it's not government controlling every single word of the message, then I don't think you have government speech. If it's simply you have a permit to go ahead. If we heard that you can deny access to a park or to a forum on the basis of the content of the speech, Justice Lee, content-based regulations of speech and attention. Absolutely. If you're denying access on the basis of content, right? Right. It's a different situation entirely. That is correct. We are denying access. One of the concerns that that raises, and this really goes back to what Justice Kennedy said, is that outside the traditional area of streets and parks, this is a new world. There are all kinds of new expressive forums being created every day. And as those come into play, as long as the State says, hey, look, we're going to regulate everything for offense. We're going to keep anything offensive out of this expressive forum. It does create the possibility that in this new world with all these new kinds of expressive fora, the State will have a much greater control over its citizen's speech than we've typically been comfortable with. That's right, Justice Kagan. And I think for all of those reasons, a mirror ruling in this case would possibly be a beneficial way to go. Do you know of any other expressive fora that are owned by the State, that are manufactured by the State, that have the State's name on it as license plates do? I mean, if there are a lot of fora like that, boy, I would really worry. But I don't know of any others. Do you know of any other? No, Justice Kagan. This is a unique idea. What can you tell me then to help me, which might not help others? But I don't think these categories are absolute. I think they help, but they're not absolute. So I would ask the question first, this isn't government speech in common English

. It is the speech of the person who wants to put the message on the plate. The plates owned by the State. The State says, we don't want certain messages to be displayed. And my question is, why? Why not? What is the interest that the State is furthering in keeping certain messages off the plate? Justice Breyer, the State's interest is selecting the messages that it wants to put it in. I'm sorry, if the State that then you have the Republican example, the Democrats, I mean not every interest, is a justifiable interest, some are not, and some are. That's why I ask my question. They keep some off, and they let some on. What is their interest? What, which are the ones, I'm asking a factual question. Why have they kept off the ones they kept off while letting on the ones they left on? Justice Breyer, if they have no interest at all in making such a distinction, then I think since speech is hurt at least a little, they ought to lose. But if they have a justifiable interest, since you can put the bumper sticker next door, I think they win. And therefore, I'd like to know what their interest is. And the State of Texas interest here is propagating messages that show the diverse backgrounds, educational backgrounds, products of Texas. Yes, at least. So I'm going to show you that Texas likes each one of these interests that they allow to be put on the license plate. They like Texas hamburger joints, and they probably would not approve a Chicago hamburger joint being on the Texas license plate. I'd like some of these messages. Others they don't particularly like. I'd like to get my answer. I was asking you, what is the interest in Texas and why does it keep off the messages it keeps off? In this particular example. No, not just this example. There are a set of things they've kept off. Why? Justice Breyer, the... They don't try a general rule. I think the Justice is asking you, who are specific? Why would you... Just a fact

. I'll use the example of the Texas DPS Troopers Foundation plate that was also denied. There, Texas didn't want that on its license plate because it was concerned that if a motorist were pulled over, then the police would say that he'd drove through this. Right. Look, I can think of many reasons I could make up. Maybe they want to keep controversial political messages off. I'd say they have an interest in that and suggesting to people Texas doesn't sponsor this. I just want to know what they really are. And now you've said one, what was the one you just said? The Texas DPS Troopers Foundation plate, Justice Breyer. I'm interested in Justice Breyer's question. You're on the license plate approval board. What standard do you follow? When do you grant a request and when do you deny? What is the rule? I think that's what Justice Breyer has asked. And Texas regulations provide that the board can deny license plate for something that members of the public would find offensive. But it also says that the board can deny plates for any reason established by a rule, which is part of the deny. And I think they lose. The reason I think they lose is because I don't see a state could come in and say we keep off a private message, and we'll tell you the reason later. Well, we can do it for any reason we want. They're your hurting speech. And I don't see Texas as interest in saying we can keep it off for any reason we want. Because that would be the Republican Democrat too. Well, just so what's the, I'm saying question, but I just think you have to have some kind of legitimate reason for keeping off the, and it doesn't have to be much. It would be just a little. Well, Texas can have legitimate reasons for not allowing minor to tell us what they are. Well, I think that that would be required something like a formal process. And they don't sue them. I just want to know what they are. And Justice Breyer, Texas does not have to associate itself with messages that it doesn't want to and finds offensive. And because Texas has given that explanation here, we know that. But there are many times government officials speaking and they don't disclose their motives. And that's perfectly old

. That's your. But if this Texas did, and now we get full circle back to the first question, Texas didn't just say no. It said this message would be offensive to many people. So that's, if a message would be offensive to many people, that's a standard that they're applying. And I asked, isn't that too broad a discussion? No, Justice Ginsburg. The fact that we have that much discretion confirms that this is government speech. Mr. Chief Justice, finally, we may reserve the remainder of my time. Thank you, counsel. Mr. George. Mr. Chief Justice, and may it please the court. We're here, reviving the sons of the Confederate veterans because they wanted to have a license plate to raise money. In fact, for the state of Texas to keep up money once, which was the purpose of their whole process in this case. And the state of Texas has gone about issuing an open invitation to everybody to submit to them public designs for license plates. And to create a, and thus, is created a limited public forum for the license plates. In Texas, it's self-formally, let's say, by a joint resolution of the legislature endorsed the grand army of the republic. And not the sons of the Confederacy. Can Texas do that? The legislature can endorse anything it wants. On the state count, right? So can the legislature endorse Austin hamburgers? Well, the legislature has created Confederate heroes' day in this particular case. And they, people on this side of the... What about the American heroes? They can't enter into Texas. They're created a holiday for people for June teams when the slaves were free. What I don't understand is why this sticks in your crawl when it's on a license plate. What you acknowledge, the Texas can do all of these things. So, long as it's Texas speech, the only question here is whether this is Texas speech or not

. If it is Texas speech, all of these things can be said, can't they? Can't all of the things that are on the license of this, Texas speech by itself and is not joint speech because the... This doesn't seem to me like a very significant issue. Well, if that's what you're concerned about, well, the law is Texas says it's okay, but boy, if you put it on a license plate, that... What? I don't understand what the theory is. Well, the state has created a very successful money raising program and which it solicits people to come in and submit their design for their license plate. So, they can, they have to submit the design, they have to put up the money to make the plate. And then the plate doesn't ever get published to anybody until the person somebody orders it from the... Suppose the message, the applicant said, we want this design and the design is this mustika. Is that speech that does the whoever is in charge of the license plate, do they have to accept that design? I don't believe the state can discriminate against the people who want to have that design. So, you can have this pastika and suppose somebody else says, I want to have G-Hod on my license plate. That's okay, too. B-G-Hod. G-Hod. B. G-Hod on the license plate can be there is obviously a court of appeal, a district court from Ohio in which infadels was held to be... State, what is your answer? What is your answer in this case as to Justice Ginsburg's hypothetical? Yes or no? Must the State put those symbols or messages on the plates at the request of the citizen? Yes or no? Yes. How about me, Pat legal? Say yes. May Pat legal? Yes. That's okay. And bang his for Jesus. Yes. So, your real is arguing for the abolition of Texas specialty plates, aren't you? I am arguing that if the State... I couldn't make a better argument in that direction than what I've been doing. We had gone along without it a long time before we got it and we can get along without that. No, so in a way, so in a way your argument curtail speech. If you prevail, you are going to prevent a lot of Texans from... Well, I'm conveying the message. You have to agree with that. If the peeps, if the State continues to use the same standard, which is, it might offend anybody, the State can deny the plate. If that's the standard, then they exercise a discretion on the statutory standard that it might offend somebody. You have no alternate standard in order to have a proper or a solution that seems wise for Justice Ginsburg hypotheticals. You have no standard. The answer to having a standard that controls people's speech is that the standard has to be pretty low hanging fruit. As in the Christian law student's association College of Hastings versus Martinez, Justice Alito and the Decentre, for the Decentre's in that case, said that offensive speech is something that, to speech that we hate is something that we should be proud of protecting. That's in that context, so you, but I'm trying to use a, they can or they cannot have a standard which says we're trying to keep offensive speech off the license, but as long as the, yes or no, if it's in the eyes of the beholder, of course, they can do that. They can't have that. They can or they cannot. And not. Okay. So now, I see what you're saying, but if I were to go back to the sort of the basic underlying thought here, is speech hurt? Yes. The answer is yes, it is. The private speech is somewhat hurt. A lot. Well, put up a bumper sticker. You can't say a lot. How is it hurt? You don't get the official in premodder

. So, your real is arguing for the abolition of Texas specialty plates, aren't you? I am arguing that if the State... I couldn't make a better argument in that direction than what I've been doing. We had gone along without it a long time before we got it and we can get along without that. No, so in a way, so in a way your argument curtail speech. If you prevail, you are going to prevent a lot of Texans from... Well, I'm conveying the message. You have to agree with that. If the peeps, if the State continues to use the same standard, which is, it might offend anybody, the State can deny the plate. If that's the standard, then they exercise a discretion on the statutory standard that it might offend somebody. You have no alternate standard in order to have a proper or a solution that seems wise for Justice Ginsburg hypotheticals. You have no standard. The answer to having a standard that controls people's speech is that the standard has to be pretty low hanging fruit. As in the Christian law student's association College of Hastings versus Martinez, Justice Alito and the Decentre, for the Decentre's in that case, said that offensive speech is something that, to speech that we hate is something that we should be proud of protecting. That's in that context, so you, but I'm trying to use a, they can or they cannot have a standard which says we're trying to keep offensive speech off the license, but as long as the, yes or no, if it's in the eyes of the beholder, of course, they can do that. They can't have that. They can or they cannot. And not. Okay. So now, I see what you're saying, but if I were to go back to the sort of the basic underlying thought here, is speech hurt? Yes. The answer is yes, it is. The private speech is somewhat hurt. A lot. Well, put up a bumper sticker. You can't say a lot. How is it hurt? You don't get the official in premodder. Hmm. Okay. Now, is there something to be said for Texas? Yes. What they're trying to do is to prevent their official in premodder from being given to speech that offends people. People don't like it. Put up a bumper sticker. All right. Now, we have two interesting opposite directions in many, many cases. We try to weigh those things, or the other things don't tell us the answer. And I would guess I don't really see the big problem that people who are putting up with speech even the Texas considers offense, even part for reasons that Justice Scalia says. Put up a bumper sticker. What's the problem? Well, the culture of creating specialty plates began in Texas in 1965. We've been doing this. And we have gone walkers with people buying these things in the state. There are 50,000 people with the private plates. It's a lot of money to do this, isn't it? It's about $8,000. Say what? It's about $8,000 to get one of these plates. I think it's a little more than that. More than that. And that. I have a different question, which is I actually do think that this is hybrid speech. It's both government and the individual speaking at the same time. But that goes back to what Justice Scalia said. In Roli, we said we can't compel the individual to put something on their license placed that they disagree with. That's, we have that case. So why isn't the reverse true for the government? If you're going to ask me to put my name because the law requires it, the state's name on a license plate, why can't you compel us to do something we don't want to endorse? Well, the reason why shouldn't it work both ways? When it's- The reason is that this has become, and it's the numbers, it's become a limited public form for putting up messages. How do I know which is the government and which is only the individuals? I mean, I wouldn't have known that pro- that pro- anything was sponsored by some states and not others, or endorsed by some states, but not others. So how do I know that a particular license plate, the government doesn't endorse? You can't tell whether the government wants your speech in advance in this program. You have to submit what you think you want

. Hmm. Okay. Now, is there something to be said for Texas? Yes. What they're trying to do is to prevent their official in premodder from being given to speech that offends people. People don't like it. Put up a bumper sticker. All right. Now, we have two interesting opposite directions in many, many cases. We try to weigh those things, or the other things don't tell us the answer. And I would guess I don't really see the big problem that people who are putting up with speech even the Texas considers offense, even part for reasons that Justice Scalia says. Put up a bumper sticker. What's the problem? Well, the culture of creating specialty plates began in Texas in 1965. We've been doing this. And we have gone walkers with people buying these things in the state. There are 50,000 people with the private plates. It's a lot of money to do this, isn't it? It's about $8,000. Say what? It's about $8,000 to get one of these plates. I think it's a little more than that. More than that. And that. I have a different question, which is I actually do think that this is hybrid speech. It's both government and the individual speaking at the same time. But that goes back to what Justice Scalia said. In Roli, we said we can't compel the individual to put something on their license placed that they disagree with. That's, we have that case. So why isn't the reverse true for the government? If you're going to ask me to put my name because the law requires it, the state's name on a license plate, why can't you compel us to do something we don't want to endorse? Well, the reason why shouldn't it work both ways? When it's- The reason is that this has become, and it's the numbers, it's become a limited public form for putting up messages. How do I know which is the government and which is only the individuals? I mean, I wouldn't have known that pro- that pro- anything was sponsored by some states and not others, or endorsed by some states, but not others. So how do I know that a particular license plate, the government doesn't endorse? You can't tell whether the government wants your speech in advance in this program. You have to submit what you think you want. And then the- Well, that implies a certain degree of approval. And the- Well, of course, there is approval. It's just like there's approval for someone to speak in a park, the- and the Columbus O'Hyle case, where they- But that's- I think it was brought out earlier. You're going to have time, place, and manner regulations for speaking in the park. You can't have content-based regulation. This is- this is a content-based, this content, the state doesn't want. And they have- They have a standard that is- that the lowest-conominant-commodal-honor- if- if- If- If- If- If- If- If- If- If- If- If- If- If- It's quite bad- It's quite bad- It's- It would be offensive to many people. No, man, I think that statute has- has says, actually, any person. So- Well, of course, Mr. George, if you had a standard like that in a case- in a normal case- where we were regulating private speech. Of course, we would find that impermissible. But the question is, whether this is a very different kind of context. And let's crawl back to, I think, just a Scalia set it about the nature of license plates. I mean, I think there's a clear regulatory purpose here. It's the government that actually makes the license plate. I think the license plate continues to be public property, if that's right, like you have to return the license plate. It has the state's name on it. It's clearly the official identification that the state gives with respect to a car. So why doesn't all of that make this a very different case from the typical forum cases that we usually address? Well, the reason is that we do have hybrid speech. And they opened up and they created this billboard, as Justice Alito said. They created a billboard opportunity. And they have, since they can make everybody have a license plate, they said we're going to create a billboard opportunity and let you put messages on it and pay us money for using our billboard. That's what they've done. And then they say to some people, but if I don't like your message because you're a Republican or you're a Democrat or you want to say, modifying burgers instead of a whopper burger, they can do that. That sort of arbitrary control of speech based upon a standard that it might offend anybody is they either need to get rid of the program or they need to open up the program just everybody else. And if somebody publishes a speech, speech they don't like, Justice O'Connor and the Oklahoma so how, okay, suggested you just make them put a number that under it from the click-lick slam put the calls on the hill and claim so. I asked my question before if you remember it, really because I wanted to answer. It wasn't the same. I'm trying to get rid of all the concept pool bases here

. And then the- Well, that implies a certain degree of approval. And the- Well, of course, there is approval. It's just like there's approval for someone to speak in a park, the- and the Columbus O'Hyle case, where they- But that's- I think it was brought out earlier. You're going to have time, place, and manner regulations for speaking in the park. You can't have content-based regulation. This is- this is a content-based, this content, the state doesn't want. And they have- They have a standard that is- that the lowest-conominant-commodal-honor- if- if- If- If- If- If- If- If- If- If- If- If- If- If- It's quite bad- It's quite bad- It's- It would be offensive to many people. No, man, I think that statute has- has says, actually, any person. So- Well, of course, Mr. George, if you had a standard like that in a case- in a normal case- where we were regulating private speech. Of course, we would find that impermissible. But the question is, whether this is a very different kind of context. And let's crawl back to, I think, just a Scalia set it about the nature of license plates. I mean, I think there's a clear regulatory purpose here. It's the government that actually makes the license plate. I think the license plate continues to be public property, if that's right, like you have to return the license plate. It has the state's name on it. It's clearly the official identification that the state gives with respect to a car. So why doesn't all of that make this a very different case from the typical forum cases that we usually address? Well, the reason is that we do have hybrid speech. And they opened up and they created this billboard, as Justice Alito said. They created a billboard opportunity. And they have, since they can make everybody have a license plate, they said we're going to create a billboard opportunity and let you put messages on it and pay us money for using our billboard. That's what they've done. And then they say to some people, but if I don't like your message because you're a Republican or you're a Democrat or you want to say, modifying burgers instead of a whopper burger, they can do that. That sort of arbitrary control of speech based upon a standard that it might offend anybody is they either need to get rid of the program or they need to open up the program just everybody else. And if somebody publishes a speech, speech they don't like, Justice O'Connor and the Oklahoma so how, okay, suggested you just make them put a number that under it from the click-lick slam put the calls on the hill and claim so. I asked my question before if you remember it, really because I wanted to answer. It wasn't the same. I'm trying to get rid of all the concept pool bases here. You just go back, forget the public forum, et cetera, forget all that. Let's go back to look to see. Is speech being hurt in the answer is, of course, yes, but not much because they can put a bumper sticker. And you look at the other side of it and you say does the state have legitimate interest here and the state says yes. Our interest is that there are messages we like, messages we don't care about and messages we don't like. And we have a system for keeping the last off because it is the government speaking which represents the citizens and the citizens do, it's their government and they don't want justice in the examples just to scaly a gave to have their government associated with messages that this commission doesn't want. And maybe there are limits on that but that's the basic idea. Okay. Now, wait those two things, I think you'd say little harm to speech, we see the other broad, etc. Now, what's your response? Well, the response is the forum has been created. Forum, see it's a concept for a far, I can't tell whether a forum license plates a forum or not a forum or if it's a three-part test or what, I can't get that. I understand. I'm trying to go back to the basics of it. Well, one of the ideas that you have articulated in others on this Court is that what would the reasonable observer believe this was? For example, would they believe that the speech is the state speech or would they believe it's the person who bought the plate as there's no, that nothing gets communicated. How about both? And I said to that, it is the state's license plate. It has taxes on it and big letters. So, and Texas says, yes, we have to approve it. Yes, we approve a lot, but there's some, we don't approve because it's our speech. It may be the car on the speech itself, but it is our speech. Both the state has dozens of potential designs for plates that don't carry anybody else's message and they have 480 designs for organizational medias and 50,000 personalized messages. And the issue in this case is the person who puts the license plates on their car is the one that communicates the message. The other people are just giving approval. Suppose the state had many fewer plates from which to choose. So, let's say they have the standard plate and then they have a plate for every college or university in the state. That's your choice. Would that be government speech? Certainly is government speech in the sense that in part, the government speech, the ability to choose some government, the universities in the state. And the standard by which they issue those is that we're going to put one for all the colleges in the state and that is the standard. Of course, that's okay. Because it is a standard that has, they chose, or the Glegg legislature chose, and I suspect, that says you can have everybody who has a college can get in this program

. You just go back, forget the public forum, et cetera, forget all that. Let's go back to look to see. Is speech being hurt in the answer is, of course, yes, but not much because they can put a bumper sticker. And you look at the other side of it and you say does the state have legitimate interest here and the state says yes. Our interest is that there are messages we like, messages we don't care about and messages we don't like. And we have a system for keeping the last off because it is the government speaking which represents the citizens and the citizens do, it's their government and they don't want justice in the examples just to scaly a gave to have their government associated with messages that this commission doesn't want. And maybe there are limits on that but that's the basic idea. Okay. Now, wait those two things, I think you'd say little harm to speech, we see the other broad, etc. Now, what's your response? Well, the response is the forum has been created. Forum, see it's a concept for a far, I can't tell whether a forum license plates a forum or not a forum or if it's a three-part test or what, I can't get that. I understand. I'm trying to go back to the basics of it. Well, one of the ideas that you have articulated in others on this Court is that what would the reasonable observer believe this was? For example, would they believe that the speech is the state speech or would they believe it's the person who bought the plate as there's no, that nothing gets communicated. How about both? And I said to that, it is the state's license plate. It has taxes on it and big letters. So, and Texas says, yes, we have to approve it. Yes, we approve a lot, but there's some, we don't approve because it's our speech. It may be the car on the speech itself, but it is our speech. Both the state has dozens of potential designs for plates that don't carry anybody else's message and they have 480 designs for organizational medias and 50,000 personalized messages. And the issue in this case is the person who puts the license plates on their car is the one that communicates the message. The other people are just giving approval. Suppose the state had many fewer plates from which to choose. So, let's say they have the standard plate and then they have a plate for every college or university in the state. That's your choice. Would that be government speech? Certainly is government speech in the sense that in part, the government speech, the ability to choose some government, the universities in the state. And the standard by which they issue those is that we're going to put one for all the colleges in the state and that is the standard. Of course, that's okay. Because it is a standard that has, they chose, or the Glegg legislature chose, and I suspect, that says you can have everybody who has a college can get in this program. All right. Suppose they broaden it. So, it's not only all the colleges and universities, but it's all the places in Texas of historic interest or natural features of the state. Hello. Now you've got a lot more. They actually do those and those are not sponsored by anybody. Those are state created for and they charge more money from what's in Florida. But answer the hypothetical. Justice Alito says, first college is next scenic places. That's okay or not. I think they actually, they actually, they then I'm sure he has a minute. All right. And suppose that there's some little town that thinks that it's really scenic and there's a way in which they can petition to get on this list. You see where I'm going. At some point, if you have just a standard state plate, of course that's government speech. If you've got 5,000 different variations that people can create for themselves, it becomes a lot harder to say that's government speech. So where would you draw the line? My view is that when the people get to create a message themselves and then, I've organization in this case, create the message for themselves and then the people who look in the catalog pick out the license plate that they want and put it on their car. Then the speech is the speech of the person to communicate it. My problem with this is how do I know there are three categories of plates, I understand. There's the official state plate. There are specialty plates created by the legislature and there are specialty plates created by an individual. How do I tell the difference between the legislative plates, which are government speech, and the private plates? Do I need to? What I do know is what I said at the beginning. It's both people speaking and I think both people endorsing each other's message in some way. So why should the government be compelled to accept speech? It rejects because it thinks it's wrong. In the first place. And doesn't want to be associated with directly. I understand. In the first place, the way people pick out plates, there's a big long catalog with 400 different organizational plate, 480 an hour, it grows every day of organizational plates. And people pick them out of a catalog out of a website and they pick the one they want to pick

. All right. Suppose they broaden it. So, it's not only all the colleges and universities, but it's all the places in Texas of historic interest or natural features of the state. Hello. Now you've got a lot more. They actually do those and those are not sponsored by anybody. Those are state created for and they charge more money from what's in Florida. But answer the hypothetical. Justice Alito says, first college is next scenic places. That's okay or not. I think they actually, they actually, they then I'm sure he has a minute. All right. And suppose that there's some little town that thinks that it's really scenic and there's a way in which they can petition to get on this list. You see where I'm going. At some point, if you have just a standard state plate, of course that's government speech. If you've got 5,000 different variations that people can create for themselves, it becomes a lot harder to say that's government speech. So where would you draw the line? My view is that when the people get to create a message themselves and then, I've organization in this case, create the message for themselves and then the people who look in the catalog pick out the license plate that they want and put it on their car. Then the speech is the speech of the person to communicate it. My problem with this is how do I know there are three categories of plates, I understand. There's the official state plate. There are specialty plates created by the legislature and there are specialty plates created by an individual. How do I tell the difference between the legislative plates, which are government speech, and the private plates? Do I need to? What I do know is what I said at the beginning. It's both people speaking and I think both people endorsing each other's message in some way. So why should the government be compelled to accept speech? It rejects because it thinks it's wrong. In the first place. And doesn't want to be associated with directly. I understand. In the first place, the way people pick out plates, there's a big long catalog with 400 different organizational plate, 480 an hour, it grows every day of organizational plates. And people pick them out of a catalog out of a website and they pick the one they want to pick. And then they put it on their license plate, the communication of the information on the license plates actually is controlled entirely by the people who pick the plates. But what about the legislature? The legislature is hypothetical, we never did quite finish. The direction of his questioning was suppose the state, all by itself, has 10 messages, 20 messages, 200 messages, 2000 messages. But the state makes up all the messages and gives you all the choices. What result? Well, the result is that the state has controls all the messages and picks all the message and then the people from whom it picks, who it sells the plates to. I know that the result of the hypothetical, I want to know the legal result. What's the first amendment answered? Well, the state can design all kinds of license plates that it wants to choose. Is that the same that I proposed and it's not handled from Justice Alito's questions? It's consistent with the first amendment or not. It is not first, when the individual submits, when people, other people submit the design. That's not the hypothetical. The hypothetical is the state has 5,000 days and the state makes them all up and you can choose. Is there a first amendment for a second? I don't believe it. The state does everything. Then it's the creator of the message and the speaker is a driver. What happens if private people could submit messages, but they all had to go through the legislature? My view is that it is much more difficult case for us if the legislature passes a statute because that is a legislative act and a clear act of the statute. What's the difference then? If you think that that would be all right, Texas has said, well, the DMV does it, not the legislature, a different branch of government, but its government, just the same. I understand that and the issue is whether or not in the cases, we have court of appeals cases that don't distinguish between legislative action and non-legislive actions and those that do. It is my judgment that the state has a greater claim making its speech when the legislature passes the bill and the governor signs it, then the statute is clearly an explanation or expression of the State. Well, it was hard when he buys a license plate. In Willie, go back to that for a second. If I object to the message on the New Hampshire plate, live free or die, I have a right to be disassociated with that. Yes. Well, if the State, which represents many people in Texas, doesn't want to be associated with a particular message, why doesn't it have the right to say, we don't want that on that? We don't want that association. We're calling the State represents X million people. They don't want to be associated with this message to their official organ. I understand quite frankly what's the difference. The difference is they invite people to make their, they charge people and have them pay for the manufacture of the license plates by giving them the chance to design a message. That's what they do. They cost the people who come up with these things, they pay all the front end cost, put up $8,000 collateral before any relationship is built

. And then they put it on their license plate, the communication of the information on the license plates actually is controlled entirely by the people who pick the plates. But what about the legislature? The legislature is hypothetical, we never did quite finish. The direction of his questioning was suppose the state, all by itself, has 10 messages, 20 messages, 200 messages, 2000 messages. But the state makes up all the messages and gives you all the choices. What result? Well, the result is that the state has controls all the messages and picks all the message and then the people from whom it picks, who it sells the plates to. I know that the result of the hypothetical, I want to know the legal result. What's the first amendment answered? Well, the state can design all kinds of license plates that it wants to choose. Is that the same that I proposed and it's not handled from Justice Alito's questions? It's consistent with the first amendment or not. It is not first, when the individual submits, when people, other people submit the design. That's not the hypothetical. The hypothetical is the state has 5,000 days and the state makes them all up and you can choose. Is there a first amendment for a second? I don't believe it. The state does everything. Then it's the creator of the message and the speaker is a driver. What happens if private people could submit messages, but they all had to go through the legislature? My view is that it is much more difficult case for us if the legislature passes a statute because that is a legislative act and a clear act of the statute. What's the difference then? If you think that that would be all right, Texas has said, well, the DMV does it, not the legislature, a different branch of government, but its government, just the same. I understand that and the issue is whether or not in the cases, we have court of appeals cases that don't distinguish between legislative action and non-legislive actions and those that do. It is my judgment that the state has a greater claim making its speech when the legislature passes the bill and the governor signs it, then the statute is clearly an explanation or expression of the State. Well, it was hard when he buys a license plate. In Willie, go back to that for a second. If I object to the message on the New Hampshire plate, live free or die, I have a right to be disassociated with that. Yes. Well, if the State, which represents many people in Texas, doesn't want to be associated with a particular message, why doesn't it have the right to say, we don't want that on that? We don't want that association. We're calling the State represents X million people. They don't want to be associated with this message to their official organ. I understand quite frankly what's the difference. The difference is they invite people to make their, they charge people and have them pay for the manufacture of the license plates by giving them the chance to design a message. That's what they do. They cost the people who come up with these things, they pay all the front end cost, put up $8,000 collateral before any relationship is built. And it is a money-making scheme that they use, the fact that they choose to, apparently twice in history. There might be more, but we can't document anymore. They've ever turned anybody down. This is not a form which people actually, they make any decisions besides in the economic decisions. It's a factual matter. That's what happens. Council, could I ask you, it's a somewhat technical question, but you just touched on it. Do you have an objection to the materials that your friend has cited from outside the record? To the extent he has decided issues relating to the other design. I do not have an objection to that because I think it's getting out of the way. It's the extra record materials are accurate. I think it's almost certainly accurate from now, but we've found, since we filed our brief. And the fact that we have gone from 350 to 480 organizational designs, since the case was tried, I was not in the record either. But I don't doubt that he has sold a lot more organizational plates since then, and they keep a better quality than we do. So what is the choice that Texas have? Am I right that in your view, if they're going to have these vanity plates, it has to be open to everybody. Or they can set the program down and nobody gets vanity plates. But maybe if the legislature passes a law or a law saying this plate is OK, that might be OK. So is the choice between everything or nothing with the exception of what the legislature does is OK? I believe that the best analysis is the legislature or the motor vehicle commission discriminates against people's speech on the basis of the content of the speech that is subject to serious first amendment concerns and is probably illegal, although there may be some exceptions to that. That's what I think the better rule is. But we have conflicts in circuits about that, and we have not this Court has not addressed that does not this case, but I believe it is a issue. But I just take you back to the Chief Justice's question for a moment and just make sure I understand it. Mr. Keller has indicated that there are a number of other occasions in which the State has disapproved of the plates and in which the State has done that on the grounds of offense. Do you have any objections to those representations? To the extent that they were done on the grounds of offense, I do, because he has one that I can that we have verified. And that one is that there was a concern about a danger on the drivers thinking that somebody's State Trooper plate may mind them, a State Trooper. What if he ought to be upset, at least? Right. What if the argument were not simply offensive, but a higher degree, you know, incitement or likely to give rise to, I mean, I think someone driving in Texas with a swastika is, you know, is likely to be a trigger public violence. Is the level of the State's interest at all pertinent to your position? Well, the, this Court's law on incitement going back to Brandenburg versus Ohio and the Cluckluck's town rally that this Court decided was not incitement is, is pretty thin at this point in our history because I don't know what the rule of incitement would be today. No, but Mr. George, just the worst of the worst, whether it's the swastika or whether it's the most offensive racial epithet that you can imagine, and if that were on a license plate where it really is a provoking violence of some kind, you know, you're going, somebody's going to ram into that car

. And it is a money-making scheme that they use, the fact that they choose to, apparently twice in history. There might be more, but we can't document anymore. They've ever turned anybody down. This is not a form which people actually, they make any decisions besides in the economic decisions. It's a factual matter. That's what happens. Council, could I ask you, it's a somewhat technical question, but you just touched on it. Do you have an objection to the materials that your friend has cited from outside the record? To the extent he has decided issues relating to the other design. I do not have an objection to that because I think it's getting out of the way. It's the extra record materials are accurate. I think it's almost certainly accurate from now, but we've found, since we filed our brief. And the fact that we have gone from 350 to 480 organizational designs, since the case was tried, I was not in the record either. But I don't doubt that he has sold a lot more organizational plates since then, and they keep a better quality than we do. So what is the choice that Texas have? Am I right that in your view, if they're going to have these vanity plates, it has to be open to everybody. Or they can set the program down and nobody gets vanity plates. But maybe if the legislature passes a law or a law saying this plate is OK, that might be OK. So is the choice between everything or nothing with the exception of what the legislature does is OK? I believe that the best analysis is the legislature or the motor vehicle commission discriminates against people's speech on the basis of the content of the speech that is subject to serious first amendment concerns and is probably illegal, although there may be some exceptions to that. That's what I think the better rule is. But we have conflicts in circuits about that, and we have not this Court has not addressed that does not this case, but I believe it is a issue. But I just take you back to the Chief Justice's question for a moment and just make sure I understand it. Mr. Keller has indicated that there are a number of other occasions in which the State has disapproved of the plates and in which the State has done that on the grounds of offense. Do you have any objections to those representations? To the extent that they were done on the grounds of offense, I do, because he has one that I can that we have verified. And that one is that there was a concern about a danger on the drivers thinking that somebody's State Trooper plate may mind them, a State Trooper. What if he ought to be upset, at least? Right. What if the argument were not simply offensive, but a higher degree, you know, incitement or likely to give rise to, I mean, I think someone driving in Texas with a swastika is, you know, is likely to be a trigger public violence. Is the level of the State's interest at all pertinent to your position? Well, the, this Court's law on incitement going back to Brandenburg versus Ohio and the Cluckluck's town rally that this Court decided was not incitement is, is pretty thin at this point in our history because I don't know what the rule of incitement would be today. No, but Mr. George, just the worst of the worst, whether it's the swastika or whether it's the most offensive racial epithet that you can imagine, and if that were on a license plate where it really is a provoking violence of some kind, you know, you're going, somebody's going to ram into that car. I just don't, I don't think people can, the government can discriminate on content. They can put on the license plates they disagree with. This is not the State speech and big orange letters and disclaim that speech. Perfectly, I'm trying to make it on a license plate. Huh? Where is that going to fit on the license plate? They, but those, that's, you can put, we have taxation throughout representation on the district of Columbus, relations plate, and that's a political message. They can put a position that if you prevail, a license plate can have a racial slur. That's your position? Yes. I don't think there's any consistent position otherwise, although the State can disclaim it undoubtedly on the same license plate. Do you have to put taxation without representation on your DC plate? That's my, you ask for a clean plate. I haven't, well, I'm not living here, but I have, I believe it is required. If somebody objects, I guess it's like a little free or die, right? They can put it, put it, take it over, but you can put obviously the disclaimer idea, just as O'Connor came up with that and, and Herker currents in the, Clemsville Highell, Cluclex Clan, crossed on the hill case, and I thought that was a pretty good idea. That is that we have a disclaimer when you don't like the speech, and you don't believe it's appropriate. The State can do that, and I think that's largely part of the answers. This is not, certainly not purely governmental speech, because the action of the State is only approval. As to the pleasant, grove city, Utah case, monuments are in fact unique circumstances. This court had decided, Perry, when Darden versus Perry, from years ago, involving in just where I put a map of the state capital grounds with all the monuments in it. Those monuments said, and when that case was decided, been there over 100 years, and the monument had questioned in the 45 years. Monuments are different than any kind of speech in a park, because of the nature of the creation. You couldn't, you'd have best and commons with monuments every seven feet, which is you can't do that. And that, that case turns on those facts, and I believe it is absolutely correctly decided. I'm also convinced that the, John, and Jonas versus Salinas, started marking borders correctly decided, because it started with the State, with a statute passed by Congress, telling the Department of Agriculture to do something, right, we're marketing the material, have it submitted back to the Secretary of Agriculture, let him approve it, then go market it and levitate tax on imported beef to support it. That's all government speech. Do you know how much money Texas makes from this? I don't have that, and this is not a line item in the budget, but watch. That's really all this is about, isn't it? Yes. That's why Texas is in the business. And so people get to play, and to the business with them that they like what they're saying, and they don't get to do business with them, they don't like what they said. Thank you, Council. Mr. Keller, you have three minutes remaining

. I just don't, I don't think people can, the government can discriminate on content. They can put on the license plates they disagree with. This is not the State speech and big orange letters and disclaim that speech. Perfectly, I'm trying to make it on a license plate. Huh? Where is that going to fit on the license plate? They, but those, that's, you can put, we have taxation throughout representation on the district of Columbus, relations plate, and that's a political message. They can put a position that if you prevail, a license plate can have a racial slur. That's your position? Yes. I don't think there's any consistent position otherwise, although the State can disclaim it undoubtedly on the same license plate. Do you have to put taxation without representation on your DC plate? That's my, you ask for a clean plate. I haven't, well, I'm not living here, but I have, I believe it is required. If somebody objects, I guess it's like a little free or die, right? They can put it, put it, take it over, but you can put obviously the disclaimer idea, just as O'Connor came up with that and, and Herker currents in the, Clemsville Highell, Cluclex Clan, crossed on the hill case, and I thought that was a pretty good idea. That is that we have a disclaimer when you don't like the speech, and you don't believe it's appropriate. The State can do that, and I think that's largely part of the answers. This is not, certainly not purely governmental speech, because the action of the State is only approval. As to the pleasant, grove city, Utah case, monuments are in fact unique circumstances. This court had decided, Perry, when Darden versus Perry, from years ago, involving in just where I put a map of the state capital grounds with all the monuments in it. Those monuments said, and when that case was decided, been there over 100 years, and the monument had questioned in the 45 years. Monuments are different than any kind of speech in a park, because of the nature of the creation. You couldn't, you'd have best and commons with monuments every seven feet, which is you can't do that. And that, that case turns on those facts, and I believe it is absolutely correctly decided. I'm also convinced that the, John, and Jonas versus Salinas, started marking borders correctly decided, because it started with the State, with a statute passed by Congress, telling the Department of Agriculture to do something, right, we're marketing the material, have it submitted back to the Secretary of Agriculture, let him approve it, then go market it and levitate tax on imported beef to support it. That's all government speech. Do you know how much money Texas makes from this? I don't have that, and this is not a line item in the budget, but watch. That's really all this is about, isn't it? Yes. That's why Texas is in the business. And so people get to play, and to the business with them that they like what they're saying, and they don't get to do business with them, they don't like what they said. Thank you, Council. Mr. Keller, you have three minutes remaining. You have very limited, revolved time. I do have one question. We asked a question about the Republican, the Democrat distinction, you said, oh, there might be some other thing you could pick. Is there a first amendment standard that you can use to deny that play? I believe it would be government speech, and therefore there would not be a first amendment problem, but I believe it would not be allowed, because other constitutional bars would apply. No, for a commitment. Just as if a monument were put up in a public park on partisan or candidate speech. It would be the government speaking, however, it would not be allowed under other constitutional provisions. Justice Lee don't, Justice Kagan, if I can suggest a way to avoid the billboard problem, when the government has its name on the speech, and when it is part of a regulatory process, or a program of the governments, and there's flimma notice and comment, and there's a public vote, and there's no abridgment of traditional free speech rights, which is this case, I think that's government speech. Justice Breyer, to address some of the other interests that Texas has here, Texas wants to prevent offensiveness and vulgar speech and wants to prevent confusion, misrepresentation, promote safety. It wants to celebrate the diverse interests that the state has. Justice Sotomayor, you're absolutely right that even if this is hybrid speech, and it does take two to tango in this situation, you need both the motorist and the state propagating the message, that that is still government speech. All of this court's cases on government speech have been that posture. For one, chlorific, toy matter, all of our sites in our apply brief and our opening brief, to Title 43 of the Texas Administrative Code, those have been renumbered since the filing of our reply brief, but the substance is all the same. And at base, this is not just about Texas making money, although Texas does make money. This is about the state of Texas not wanting to place its stamp of approval on certain messages, and a speaker is not entitled to the impromotor of the state of Texas on whatever message that it wishes to put on a license plate. Thank you, Mr. Chief Justice. Thank you, Council. The case is submitted.

We'll hear argument first this morning in case 14144 John Walker versus the Texas Division of the Sons of Confederate Veterans Mr. Keller Thank You Mr. Chief Justice and may it please the Court Messages on Texas license plates are government speech the state of Texas etches its name Onto each license plate and Texas law gives the state sole control and final approval authority over everything that appears on a license plate as in Sumam Texas is not abridging any traditional free speech rights motorists remain free to speak in all sorts of ways including on their cars through a bumper sticker right next to a license plate or a Car-sized paint job or a window decal But the first amendment does not mean that a motorist can compel any government to place its impromotor on the Confederate battle flag on its license plate Well, where are what are the problems with the scheme is it's nebulous founded It would have been regarded as offensive to many people I mean is it government speech to say mighty fine burgers to advertise a product? The government yet yes, Justice Ginsburg the government is allowed to choose the messages that it wishes to and simply because it is approved Parochial messages or has endorsed messages or is accepting and generating revenue to get to Propagate those messages doesn't defeat the fact that it is government speech when the library of Congress for instance take sponsorship from the Washington Post or Wells Fargo for the National Book Festival That's still government speech when they then put it on their website suppose Texas erected 500 electronic billboards around the state and on those billboards they posted some government messages where you're seatbelt when you're driving for example, but then at the bottom people could put a message of their choice What would that be government speech? Justice Lita, I think the portion that the government had final approval authority and sole control over that would be government speech if the government though doesn't have sole control or final approval authority over another portion I think that the bottom of the government has the same kind of approval authority that it has here it will allow people to say in offensive things but if they say something that's offensive then they won't allow that that would be government speech. It would be government speech under I think the best reading of both Suleiman Jo Hans to the other is precedent that you have final approval authority and the government isn't abridging other traditional free speech rights but even if that weren't- But I'm sorry I don't understand almost anything the government does it has final authority to veto and whether it's a school or a government website it always retains the authority to say no the issue is when can it say no constitutionally so I don't think it's merely that and in Suleiman the government actually created the words that were that were being advertised so isn't that substantially different because the government's not creating these words. Well just a certain more a few points on sumum the court indicated that- That's the monument case I'm talking about Johannes. That's right and in sumum though the a private organization the fraternal order of eagles put its name on the monument it created the message and then donated it to the park in jail hands yes the government did create a program to espouse the message beef its what's for dinner but even then as the court recognized the secretary of agro calls or didn't write ad copy so it's not as if the government had control- sorry the government had control it just was not at every step of the way saying this is how the message must be but at the end of the day it had final approval authority but you're turned to justice Alito's hypothetical and what the test should be. The test can include other elements and even if sumum in jail hands could be read as just a two-part test for all sorts of reasons this is government speech here Texas has its name on every license plate. There's a formal process here of notice and comment and the board takes a public vote before approving any specialty license. Mr. County- Do you want us to hold that because its government speech the government can engage in viewpoint discrimination? Is that what I'm supposed to write? That's right Justice Kennedy and the court has recognized that in sumum and injure. And does that have any limits Mr. Keller I mean suppose somebody submitted a license plate to Texas that said vote Republican and Texas said yes that's fine and then the next person submitted a license plate to Texas and it said vote Democratic and Texas said no we're not going to approve that one what about that? Yeah Justice King I don't think our position would necessarily allow that but I think that doesn't. Well why wouldn't it have not been? Because the establishment clause the equal protection clause do process close. Other independent constitutional bars could apply as just. Well this is not an establishment clause issue so I'm curious as to what constitutional constraints you think there are and how they would play out as to the kind of hypothetical I just gave you. Absolutely Justice King. I think partisan speech, candidate speech as just as Stevens concurrence in sumum recognized and Justice Scalia's concurrence and finely recognized there could be other constitutional bars such as the equal protection clause in the Oregon Supreme Court. I think all you have to say is whatever prevents Texas itself in all of its other activities never mind license plates from saying vote Republican. Absolutely. I mean you put the same question what stops Texas from saying in all of its election literature that it passes out vote Republican. I think something prevents that and whatever prevents that would prevent it on the license plates too though. That's correct Justice Scalia which is why that issue is one of government speech in general but the court has recognized unanimously that the government can speak that the government speech doctrine does not allow or sorry that the government can speak even if it is going to take certain viewpoints and not on the law. What case do you want me to read to show that the government can engage in viewpoint discrimination when it's its own speech? Which the monument cases? Yes Justice Kennedy. So Sula would be the best example. Is this a case where the state, the government has aided in creating a new kind of public form. People don't go to parks anymore. If the government bought 17 soap boxes to put around the park that's government property but the government can't prohibit what kind of speech goes on there. Why is this a new public form in a new era? I don't think it's a public form for private speech for various reasons. The court has never recognized a public form for private speech when the government places its name on the message, when it completely controls the message in the form. When it's receiving notice and comment from the public. No, but that's circular. The whole question is whether you can control the message. You're assuming the answer to the question? Yes, Justice Kennedy. I think the court has looked at governmental intent to determine whether there's a public form for private speech. And for all of the reasons that we're pointing out that this is government speech, it is the same, it is the flip side of why a public form hasn't been created. So I'm not quite sure why it's government speech since there's no clear identifiable policy, at least it's argumentable, there's none, that the state is articulating. I mean, the only doing is to get the money. Mr. Chief Justice, a singular programmatic message. I don't think can be part of any administrative test for government because government must speak in all sorts of ways. The court and Summa indicated that the 52 structures in New York Central Park were all government speech. And yet, those, if it's a wide array of messages, such as Alice in Wonderland. Well, but it's here. I mean, you could have conflicting messages. I mean, what is the government policy between allowing, you know, University of Texas plates and University of Oklahoma plates? The state of Texas can absolutely promote the educational diversity of its citizens. Oh, okay. What's its policy between permitting a mighty fine burger place, plates, and, you know, pretty good burgers plates? Mr. Chief Justice is an Austin, Texas establishment. The state of Texas, if it wanted to, could promote that message. But even if mighty fine burgers weren't a Texas establishment, Texas is allowed to endorse speech. And just because it would be generating revenues, so it's endorsing speech, it is the government speech. The analogy would be an endorsement of such as a professional athlete. For professional athlete, for instance, places a logo or product, or otherwise, on some apparel at the athlete is wearing. That's still the speech of the athlete. But the athlete doesn't advertise, you know, Nike on his jersey and Adidas on his shoes. You can see one message. That athlete is endorsing this brand. But Texas will put its name on anything, and the idea that this is their speech. Again, the only thing that unifies it is they get money from it. Mr. Chief Justice, I don't think Texas is ready. It's a personal process with a public vote. But does you tell me yourself, you began, you said its name is etched on the license plate. Every message that is actually appearing on the license plate, yes. That is the state's message. How many of them are there? As of the beginning of this month, there were 438 specialty plates, 269 of which were available for general public use. How many have you disapproved other than this one? We addressed that argument on our private briefing pages 9-11. Texas has, sorry, Texas agencies have denied about a dozen plates. Some of that information is in the records, if it is not. And what other ones have you disapproved? The Board's predecessor denied a pro-life plate. The Board itself denied a Texas DPS Troopers Foundation plate. And the Board's predecessor also denied about a dozen other plates. Also, the vote on the ground of offense. The information is not clear as to what the grounds for those denials were. The legislature itself has also repealed multiple specialty plates that it also had created. So this shows that, could I ask Mr. Keller, if you go down to Texas and you just stare at license plates, are most of them just the standard license plate and then these 400 license plates you see very rarely? Or do most people actually have one of these specialty plates? Well, there is a wide range of even most plates are still the standard plate. But there is a substantial percentage that are not, it is not by any means unusual to see a specialty plate. It would not be unusual to see a specialty plate in the state of Texas. But the state of Texas, by etching its name on it, can keep in control of what appears on license plates, it is still the state's message. What is the limits of this argument? That is what concerns me. And your answer to my billboard question was disturbing. But suppose people still did go to parks and the state had an official state soapbox at the park. And everyone is in a while and a state official would mount the soapbox and say, they give some official state announcement. But other times people who pay to fee would be allowed to go up there and say something that they wanted, provided that it was approved and advanced by the state. Would that be official state speech? Justice Leigh, I think they were starting to cross over into a situation, what this court and assume, called a subterfuge, that if you are a bridging traditional free speech rights, if you are limiting access to a traditional public forum, then that would be an instance where government speech is crowding out speech and therefore a race constitute. Why hasn't this become traditional? I don't mean to interrupt Justice Leigh, but I think on the same point. Why isn't this become traditional now that you've allowed it? You've opened a new forum. I don't think it's become traditional because Texas has always maintained control over its plates. And it has always exercised editorial control. So unlike a park which has been held since time immemorial for the benefit of the public to speak, license plates are irregular for you. You want us to say the public for work and not evolve over time according to the... People don't go to parks anymore, they drive. Just get it. Absolutely. The public traditional public forum can't evolve over time. But the indicia of a traditional public forum still has to be one that is open. And Texas has not opened license plates. If other states want it to. In a world in which you've approved 400 license plates and they're pretty common in the state of Texas and you've only disapproved, very select few, you know, it does seem as though you've basically given relinquished your control over this and you know, made it a people's license plate for whatever private speech people want to say. Just kick it out. I think it would be odd to say that it's private speech when the board is taking a public vote and receiving notice and comment, a very governmental function of when the government wants to act. And then it's placing its name on the license plate. When the government is placing its name on the license plate, it is accepting and signifying that this is the government's message. And even if you think they'd have notice and comment for every one of them, the 430 on that it's approved every time there's a request, does it, is there a notice and comment procedure? If it's a legislature created plate, the legislature, of course, would do it. And then there wouldn't be an agency notice and comment proceeding. But under the existing law, notice and comment would be required for every specialty plate approved by the agency, which is all specialty plates that are not approved by the legislature. I think a good analog to this case would be the U.S. Postal Services Postage Stamp Program. There, the U.S. is placing its name directly on the medium. Thousands of stamps have been issued in the past. And yet there is also private input that is allowed onto what those postage stamps are going to look like. And just as respondents can speak in all sorts of ways on a bumper sticker right next to a license plate or on the envelope on which a stamp would appear, that doesn't mean that someone is allowed responsive speech to whatever appears on a stamp or whatever appears on a license plate. The Texas also have specialty plates in so far as the letters or numbers of the plates are concerned. I mean, can you get a license plate that says hot stuff or something like that? Justice Scalia, we do have personalized plates in Texas. And are those censored? I mean, can you use a dirty word on those? This speech there is controlled completely by the State of Texas. Texas. And this is not in the record. Even though the individual selects hot stuff or whatever other message he wants to put. So I guess if this is not allowed, we can't allow that either. Yes, Justice Scalia. I mean, dirty words, or people are entitled to use dirty words. Justice Scalia, the courts holding in this case, I believe, would directly affect personalized plates. And when I'm not sure your analogy to the Postal Service really works because none of us can imagine the Postal Service having commercial advertisements on its stamps. One of the license plates here for remaxed realty. You're not going to see that on a Postal stamp. Mr. Chief Justice, it may be true that the U.S. Postal Service has not chosen to engage in that type of expression. But I don't think that defeats the fact that this is still government speech. For all the conditions of the Court of Recognizing Sumam and Jo Hans, and even Justice Sanders dissent in Jo Hans that wanted it was looking for government disclosure. We have that here. We have Texas' name etched onto the license plate. Also, untenable consequences can fall from an opinion recognizing that Texas has to offer responsive speech. Texas should not have to allow speech about al-Qaeda or the Nazi party simply because it offers a license plate propagating the message fight. Well, there's an easy answer to that, which is they don't have to get in the business of selling space on their license plates to begin with. If you don't want to have the al-Qaeda license plate, don't get into the business of allowing people to buy their, you know, the space to put on whatever they want to say. Mr. Chief Justice, I believe that that would be an answer to all of the government speech cases. And I'd assume, for instance, the Court didn't say, well, if you don't want to accept the sum of monument, just don't allow monuments. And that's because government is allowed to select the messages that it wants to propagate. And it's allowed to speak in medium that it's... Well, that might be because they've done that since the time of the Pyramids or whatever. But they haven't had license plate messages since time immemorial. So maybe that's why they shouldn't be considered just like the monuments. Mr. Chief Justice, I don't mean to suggest that they are just like the monuments, but that it is still a fixed medium and a tangible message is being displayed to a captive audience as the Court recognized in Lehman. And in those situations, the government is entitled to select the messages that it wishes to propagate, and they're going to be closely identified. Firstly, I'd rather have the license plates than the Pyramids. I don't know that we want to drive Texas to having Pyramids. Justice Scalia, we also want to retain our license plates. And that shows, I think, what this case is about. The respondents want Texas to place its stamp of approval on the Confederate battle flag through license plates. And Texas doesn't have to make that judgment. Well, I don't want to beat a dead horse, but I, if, what's the best distinction you can give me between what you do with license plates and billboards, a soap box, an official state website where people can put up a message that they want subject to state approval. If we were to write an opinion that tried to draw distinction between the license plates on one side and there's other things on the other side, what would we say? Sure, Justice Lee, I think the very first thing is Texas has its name on it. I'm not sure in the billboard example. Texas has its name on all the other things too. Sure. In this situation, we have exercised selectivity and control as my previous answer to Justice Kagan suggested a reply brief of pages 9 to 11 addresses that. Also, we market this program to the public saying specifically that no one is entitled to whatever design they want. Rather, the board of the legislature has to approve it. That's the final item of the joint appendix. So, this is not a situation where, out in the world, if you were to see a soap box in a park, that you would wonder, is this the government speaking? Is this not the government speaking? Is the government a bridging traditional free speech rights? This is a case where Texas wants to maintain and has maintained control of what it says on license plates. In respondents, everyone remains free to speak in all sorts of ways. Speeches, leafletting, TV advertisements, terrible. I really don't think that you've answered Justice Salito's question. In every park, you need generally a permit to do certain kinds of speech. So, the government controls that permit process and tells you that it can say no. So, why is that different in the situations that it can't be merely control is what I'm saying? The ability to veto. Because that would then give you the ability to veto. You could create a program in every public forum that basically controls in the same way. Justice Salito, I think there's a difference. We need to be clear about what approval means. If approval means access to a forum and it's not government controlling every single word of the message, then I don't think you have government speech. If it's simply you have a permit to go ahead. If we heard that you can deny access to a park or to a forum on the basis of the content of the speech, Justice Lee, content-based regulations of speech and attention. Absolutely. If you're denying access on the basis of content, right? Right. It's a different situation entirely. That is correct. We are denying access. One of the concerns that that raises, and this really goes back to what Justice Kennedy said, is that outside the traditional area of streets and parks, this is a new world. There are all kinds of new expressive forums being created every day. And as those come into play, as long as the State says, hey, look, we're going to regulate everything for offense. We're going to keep anything offensive out of this expressive forum. It does create the possibility that in this new world with all these new kinds of expressive fora, the State will have a much greater control over its citizen's speech than we've typically been comfortable with. That's right, Justice Kagan. And I think for all of those reasons, a mirror ruling in this case would possibly be a beneficial way to go. Do you know of any other expressive fora that are owned by the State, that are manufactured by the State, that have the State's name on it as license plates do? I mean, if there are a lot of fora like that, boy, I would really worry. But I don't know of any others. Do you know of any other? No, Justice Kagan. This is a unique idea. What can you tell me then to help me, which might not help others? But I don't think these categories are absolute. I think they help, but they're not absolute. So I would ask the question first, this isn't government speech in common English. It is the speech of the person who wants to put the message on the plate. The plates owned by the State. The State says, we don't want certain messages to be displayed. And my question is, why? Why not? What is the interest that the State is furthering in keeping certain messages off the plate? Justice Breyer, the State's interest is selecting the messages that it wants to put it in. I'm sorry, if the State that then you have the Republican example, the Democrats, I mean not every interest, is a justifiable interest, some are not, and some are. That's why I ask my question. They keep some off, and they let some on. What is their interest? What, which are the ones, I'm asking a factual question. Why have they kept off the ones they kept off while letting on the ones they left on? Justice Breyer, if they have no interest at all in making such a distinction, then I think since speech is hurt at least a little, they ought to lose. But if they have a justifiable interest, since you can put the bumper sticker next door, I think they win. And therefore, I'd like to know what their interest is. And the State of Texas interest here is propagating messages that show the diverse backgrounds, educational backgrounds, products of Texas. Yes, at least. So I'm going to show you that Texas likes each one of these interests that they allow to be put on the license plate. They like Texas hamburger joints, and they probably would not approve a Chicago hamburger joint being on the Texas license plate. I'd like some of these messages. Others they don't particularly like. I'd like to get my answer. I was asking you, what is the interest in Texas and why does it keep off the messages it keeps off? In this particular example. No, not just this example. There are a set of things they've kept off. Why? Justice Breyer, the... They don't try a general rule. I think the Justice is asking you, who are specific? Why would you... Just a fact. I'll use the example of the Texas DPS Troopers Foundation plate that was also denied. There, Texas didn't want that on its license plate because it was concerned that if a motorist were pulled over, then the police would say that he'd drove through this. Right. Look, I can think of many reasons I could make up. Maybe they want to keep controversial political messages off. I'd say they have an interest in that and suggesting to people Texas doesn't sponsor this. I just want to know what they really are. And now you've said one, what was the one you just said? The Texas DPS Troopers Foundation plate, Justice Breyer. I'm interested in Justice Breyer's question. You're on the license plate approval board. What standard do you follow? When do you grant a request and when do you deny? What is the rule? I think that's what Justice Breyer has asked. And Texas regulations provide that the board can deny license plate for something that members of the public would find offensive. But it also says that the board can deny plates for any reason established by a rule, which is part of the deny. And I think they lose. The reason I think they lose is because I don't see a state could come in and say we keep off a private message, and we'll tell you the reason later. Well, we can do it for any reason we want. They're your hurting speech. And I don't see Texas as interest in saying we can keep it off for any reason we want. Because that would be the Republican Democrat too. Well, just so what's the, I'm saying question, but I just think you have to have some kind of legitimate reason for keeping off the, and it doesn't have to be much. It would be just a little. Well, Texas can have legitimate reasons for not allowing minor to tell us what they are. Well, I think that that would be required something like a formal process. And they don't sue them. I just want to know what they are. And Justice Breyer, Texas does not have to associate itself with messages that it doesn't want to and finds offensive. And because Texas has given that explanation here, we know that. But there are many times government officials speaking and they don't disclose their motives. And that's perfectly old. That's your. But if this Texas did, and now we get full circle back to the first question, Texas didn't just say no. It said this message would be offensive to many people. So that's, if a message would be offensive to many people, that's a standard that they're applying. And I asked, isn't that too broad a discussion? No, Justice Ginsburg. The fact that we have that much discretion confirms that this is government speech. Mr. Chief Justice, finally, we may reserve the remainder of my time. Thank you, counsel. Mr. George. Mr. Chief Justice, and may it please the court. We're here, reviving the sons of the Confederate veterans because they wanted to have a license plate to raise money. In fact, for the state of Texas to keep up money once, which was the purpose of their whole process in this case. And the state of Texas has gone about issuing an open invitation to everybody to submit to them public designs for license plates. And to create a, and thus, is created a limited public forum for the license plates. In Texas, it's self-formally, let's say, by a joint resolution of the legislature endorsed the grand army of the republic. And not the sons of the Confederacy. Can Texas do that? The legislature can endorse anything it wants. On the state count, right? So can the legislature endorse Austin hamburgers? Well, the legislature has created Confederate heroes' day in this particular case. And they, people on this side of the... What about the American heroes? They can't enter into Texas. They're created a holiday for people for June teams when the slaves were free. What I don't understand is why this sticks in your crawl when it's on a license plate. What you acknowledge, the Texas can do all of these things. So, long as it's Texas speech, the only question here is whether this is Texas speech or not. If it is Texas speech, all of these things can be said, can't they? Can't all of the things that are on the license of this, Texas speech by itself and is not joint speech because the... This doesn't seem to me like a very significant issue. Well, if that's what you're concerned about, well, the law is Texas says it's okay, but boy, if you put it on a license plate, that... What? I don't understand what the theory is. Well, the state has created a very successful money raising program and which it solicits people to come in and submit their design for their license plate. So, they can, they have to submit the design, they have to put up the money to make the plate. And then the plate doesn't ever get published to anybody until the person somebody orders it from the... Suppose the message, the applicant said, we want this design and the design is this mustika. Is that speech that does the whoever is in charge of the license plate, do they have to accept that design? I don't believe the state can discriminate against the people who want to have that design. So, you can have this pastika and suppose somebody else says, I want to have G-Hod on my license plate. That's okay, too. B-G-Hod. G-Hod. B. G-Hod on the license plate can be there is obviously a court of appeal, a district court from Ohio in which infadels was held to be... State, what is your answer? What is your answer in this case as to Justice Ginsburg's hypothetical? Yes or no? Must the State put those symbols or messages on the plates at the request of the citizen? Yes or no? Yes. How about me, Pat legal? Say yes. May Pat legal? Yes. That's okay. And bang his for Jesus. Yes. So, your real is arguing for the abolition of Texas specialty plates, aren't you? I am arguing that if the State... I couldn't make a better argument in that direction than what I've been doing. We had gone along without it a long time before we got it and we can get along without that. No, so in a way, so in a way your argument curtail speech. If you prevail, you are going to prevent a lot of Texans from... Well, I'm conveying the message. You have to agree with that. If the peeps, if the State continues to use the same standard, which is, it might offend anybody, the State can deny the plate. If that's the standard, then they exercise a discretion on the statutory standard that it might offend somebody. You have no alternate standard in order to have a proper or a solution that seems wise for Justice Ginsburg hypotheticals. You have no standard. The answer to having a standard that controls people's speech is that the standard has to be pretty low hanging fruit. As in the Christian law student's association College of Hastings versus Martinez, Justice Alito and the Decentre, for the Decentre's in that case, said that offensive speech is something that, to speech that we hate is something that we should be proud of protecting. That's in that context, so you, but I'm trying to use a, they can or they cannot have a standard which says we're trying to keep offensive speech off the license, but as long as the, yes or no, if it's in the eyes of the beholder, of course, they can do that. They can't have that. They can or they cannot. And not. Okay. So now, I see what you're saying, but if I were to go back to the sort of the basic underlying thought here, is speech hurt? Yes. The answer is yes, it is. The private speech is somewhat hurt. A lot. Well, put up a bumper sticker. You can't say a lot. How is it hurt? You don't get the official in premodder. Hmm. Okay. Now, is there something to be said for Texas? Yes. What they're trying to do is to prevent their official in premodder from being given to speech that offends people. People don't like it. Put up a bumper sticker. All right. Now, we have two interesting opposite directions in many, many cases. We try to weigh those things, or the other things don't tell us the answer. And I would guess I don't really see the big problem that people who are putting up with speech even the Texas considers offense, even part for reasons that Justice Scalia says. Put up a bumper sticker. What's the problem? Well, the culture of creating specialty plates began in Texas in 1965. We've been doing this. And we have gone walkers with people buying these things in the state. There are 50,000 people with the private plates. It's a lot of money to do this, isn't it? It's about $8,000. Say what? It's about $8,000 to get one of these plates. I think it's a little more than that. More than that. And that. I have a different question, which is I actually do think that this is hybrid speech. It's both government and the individual speaking at the same time. But that goes back to what Justice Scalia said. In Roli, we said we can't compel the individual to put something on their license placed that they disagree with. That's, we have that case. So why isn't the reverse true for the government? If you're going to ask me to put my name because the law requires it, the state's name on a license plate, why can't you compel us to do something we don't want to endorse? Well, the reason why shouldn't it work both ways? When it's- The reason is that this has become, and it's the numbers, it's become a limited public form for putting up messages. How do I know which is the government and which is only the individuals? I mean, I wouldn't have known that pro- that pro- anything was sponsored by some states and not others, or endorsed by some states, but not others. So how do I know that a particular license plate, the government doesn't endorse? You can't tell whether the government wants your speech in advance in this program. You have to submit what you think you want. And then the- Well, that implies a certain degree of approval. And the- Well, of course, there is approval. It's just like there's approval for someone to speak in a park, the- and the Columbus O'Hyle case, where they- But that's- I think it was brought out earlier. You're going to have time, place, and manner regulations for speaking in the park. You can't have content-based regulation. This is- this is a content-based, this content, the state doesn't want. And they have- They have a standard that is- that the lowest-conominant-commodal-honor- if- if- If- If- If- If- If- If- If- If- If- If- If- If- It's quite bad- It's quite bad- It's- It would be offensive to many people. No, man, I think that statute has- has says, actually, any person. So- Well, of course, Mr. George, if you had a standard like that in a case- in a normal case- where we were regulating private speech. Of course, we would find that impermissible. But the question is, whether this is a very different kind of context. And let's crawl back to, I think, just a Scalia set it about the nature of license plates. I mean, I think there's a clear regulatory purpose here. It's the government that actually makes the license plate. I think the license plate continues to be public property, if that's right, like you have to return the license plate. It has the state's name on it. It's clearly the official identification that the state gives with respect to a car. So why doesn't all of that make this a very different case from the typical forum cases that we usually address? Well, the reason is that we do have hybrid speech. And they opened up and they created this billboard, as Justice Alito said. They created a billboard opportunity. And they have, since they can make everybody have a license plate, they said we're going to create a billboard opportunity and let you put messages on it and pay us money for using our billboard. That's what they've done. And then they say to some people, but if I don't like your message because you're a Republican or you're a Democrat or you want to say, modifying burgers instead of a whopper burger, they can do that. That sort of arbitrary control of speech based upon a standard that it might offend anybody is they either need to get rid of the program or they need to open up the program just everybody else. And if somebody publishes a speech, speech they don't like, Justice O'Connor and the Oklahoma so how, okay, suggested you just make them put a number that under it from the click-lick slam put the calls on the hill and claim so. I asked my question before if you remember it, really because I wanted to answer. It wasn't the same. I'm trying to get rid of all the concept pool bases here. You just go back, forget the public forum, et cetera, forget all that. Let's go back to look to see. Is speech being hurt in the answer is, of course, yes, but not much because they can put a bumper sticker. And you look at the other side of it and you say does the state have legitimate interest here and the state says yes. Our interest is that there are messages we like, messages we don't care about and messages we don't like. And we have a system for keeping the last off because it is the government speaking which represents the citizens and the citizens do, it's their government and they don't want justice in the examples just to scaly a gave to have their government associated with messages that this commission doesn't want. And maybe there are limits on that but that's the basic idea. Okay. Now, wait those two things, I think you'd say little harm to speech, we see the other broad, etc. Now, what's your response? Well, the response is the forum has been created. Forum, see it's a concept for a far, I can't tell whether a forum license plates a forum or not a forum or if it's a three-part test or what, I can't get that. I understand. I'm trying to go back to the basics of it. Well, one of the ideas that you have articulated in others on this Court is that what would the reasonable observer believe this was? For example, would they believe that the speech is the state speech or would they believe it's the person who bought the plate as there's no, that nothing gets communicated. How about both? And I said to that, it is the state's license plate. It has taxes on it and big letters. So, and Texas says, yes, we have to approve it. Yes, we approve a lot, but there's some, we don't approve because it's our speech. It may be the car on the speech itself, but it is our speech. Both the state has dozens of potential designs for plates that don't carry anybody else's message and they have 480 designs for organizational medias and 50,000 personalized messages. And the issue in this case is the person who puts the license plates on their car is the one that communicates the message. The other people are just giving approval. Suppose the state had many fewer plates from which to choose. So, let's say they have the standard plate and then they have a plate for every college or university in the state. That's your choice. Would that be government speech? Certainly is government speech in the sense that in part, the government speech, the ability to choose some government, the universities in the state. And the standard by which they issue those is that we're going to put one for all the colleges in the state and that is the standard. Of course, that's okay. Because it is a standard that has, they chose, or the Glegg legislature chose, and I suspect, that says you can have everybody who has a college can get in this program. All right. Suppose they broaden it. So, it's not only all the colleges and universities, but it's all the places in Texas of historic interest or natural features of the state. Hello. Now you've got a lot more. They actually do those and those are not sponsored by anybody. Those are state created for and they charge more money from what's in Florida. But answer the hypothetical. Justice Alito says, first college is next scenic places. That's okay or not. I think they actually, they actually, they then I'm sure he has a minute. All right. And suppose that there's some little town that thinks that it's really scenic and there's a way in which they can petition to get on this list. You see where I'm going. At some point, if you have just a standard state plate, of course that's government speech. If you've got 5,000 different variations that people can create for themselves, it becomes a lot harder to say that's government speech. So where would you draw the line? My view is that when the people get to create a message themselves and then, I've organization in this case, create the message for themselves and then the people who look in the catalog pick out the license plate that they want and put it on their car. Then the speech is the speech of the person to communicate it. My problem with this is how do I know there are three categories of plates, I understand. There's the official state plate. There are specialty plates created by the legislature and there are specialty plates created by an individual. How do I tell the difference between the legislative plates, which are government speech, and the private plates? Do I need to? What I do know is what I said at the beginning. It's both people speaking and I think both people endorsing each other's message in some way. So why should the government be compelled to accept speech? It rejects because it thinks it's wrong. In the first place. And doesn't want to be associated with directly. I understand. In the first place, the way people pick out plates, there's a big long catalog with 400 different organizational plate, 480 an hour, it grows every day of organizational plates. And people pick them out of a catalog out of a website and they pick the one they want to pick. And then they put it on their license plate, the communication of the information on the license plates actually is controlled entirely by the people who pick the plates. But what about the legislature? The legislature is hypothetical, we never did quite finish. The direction of his questioning was suppose the state, all by itself, has 10 messages, 20 messages, 200 messages, 2000 messages. But the state makes up all the messages and gives you all the choices. What result? Well, the result is that the state has controls all the messages and picks all the message and then the people from whom it picks, who it sells the plates to. I know that the result of the hypothetical, I want to know the legal result. What's the first amendment answered? Well, the state can design all kinds of license plates that it wants to choose. Is that the same that I proposed and it's not handled from Justice Alito's questions? It's consistent with the first amendment or not. It is not first, when the individual submits, when people, other people submit the design. That's not the hypothetical. The hypothetical is the state has 5,000 days and the state makes them all up and you can choose. Is there a first amendment for a second? I don't believe it. The state does everything. Then it's the creator of the message and the speaker is a driver. What happens if private people could submit messages, but they all had to go through the legislature? My view is that it is much more difficult case for us if the legislature passes a statute because that is a legislative act and a clear act of the statute. What's the difference then? If you think that that would be all right, Texas has said, well, the DMV does it, not the legislature, a different branch of government, but its government, just the same. I understand that and the issue is whether or not in the cases, we have court of appeals cases that don't distinguish between legislative action and non-legislive actions and those that do. It is my judgment that the state has a greater claim making its speech when the legislature passes the bill and the governor signs it, then the statute is clearly an explanation or expression of the State. Well, it was hard when he buys a license plate. In Willie, go back to that for a second. If I object to the message on the New Hampshire plate, live free or die, I have a right to be disassociated with that. Yes. Well, if the State, which represents many people in Texas, doesn't want to be associated with a particular message, why doesn't it have the right to say, we don't want that on that? We don't want that association. We're calling the State represents X million people. They don't want to be associated with this message to their official organ. I understand quite frankly what's the difference. The difference is they invite people to make their, they charge people and have them pay for the manufacture of the license plates by giving them the chance to design a message. That's what they do. They cost the people who come up with these things, they pay all the front end cost, put up $8,000 collateral before any relationship is built. And it is a money-making scheme that they use, the fact that they choose to, apparently twice in history. There might be more, but we can't document anymore. They've ever turned anybody down. This is not a form which people actually, they make any decisions besides in the economic decisions. It's a factual matter. That's what happens. Council, could I ask you, it's a somewhat technical question, but you just touched on it. Do you have an objection to the materials that your friend has cited from outside the record? To the extent he has decided issues relating to the other design. I do not have an objection to that because I think it's getting out of the way. It's the extra record materials are accurate. I think it's almost certainly accurate from now, but we've found, since we filed our brief. And the fact that we have gone from 350 to 480 organizational designs, since the case was tried, I was not in the record either. But I don't doubt that he has sold a lot more organizational plates since then, and they keep a better quality than we do. So what is the choice that Texas have? Am I right that in your view, if they're going to have these vanity plates, it has to be open to everybody. Or they can set the program down and nobody gets vanity plates. But maybe if the legislature passes a law or a law saying this plate is OK, that might be OK. So is the choice between everything or nothing with the exception of what the legislature does is OK? I believe that the best analysis is the legislature or the motor vehicle commission discriminates against people's speech on the basis of the content of the speech that is subject to serious first amendment concerns and is probably illegal, although there may be some exceptions to that. That's what I think the better rule is. But we have conflicts in circuits about that, and we have not this Court has not addressed that does not this case, but I believe it is a issue. But I just take you back to the Chief Justice's question for a moment and just make sure I understand it. Mr. Keller has indicated that there are a number of other occasions in which the State has disapproved of the plates and in which the State has done that on the grounds of offense. Do you have any objections to those representations? To the extent that they were done on the grounds of offense, I do, because he has one that I can that we have verified. And that one is that there was a concern about a danger on the drivers thinking that somebody's State Trooper plate may mind them, a State Trooper. What if he ought to be upset, at least? Right. What if the argument were not simply offensive, but a higher degree, you know, incitement or likely to give rise to, I mean, I think someone driving in Texas with a swastika is, you know, is likely to be a trigger public violence. Is the level of the State's interest at all pertinent to your position? Well, the, this Court's law on incitement going back to Brandenburg versus Ohio and the Cluckluck's town rally that this Court decided was not incitement is, is pretty thin at this point in our history because I don't know what the rule of incitement would be today. No, but Mr. George, just the worst of the worst, whether it's the swastika or whether it's the most offensive racial epithet that you can imagine, and if that were on a license plate where it really is a provoking violence of some kind, you know, you're going, somebody's going to ram into that car. I just don't, I don't think people can, the government can discriminate on content. They can put on the license plates they disagree with. This is not the State speech and big orange letters and disclaim that speech. Perfectly, I'm trying to make it on a license plate. Huh? Where is that going to fit on the license plate? They, but those, that's, you can put, we have taxation throughout representation on the district of Columbus, relations plate, and that's a political message. They can put a position that if you prevail, a license plate can have a racial slur. That's your position? Yes. I don't think there's any consistent position otherwise, although the State can disclaim it undoubtedly on the same license plate. Do you have to put taxation without representation on your DC plate? That's my, you ask for a clean plate. I haven't, well, I'm not living here, but I have, I believe it is required. If somebody objects, I guess it's like a little free or die, right? They can put it, put it, take it over, but you can put obviously the disclaimer idea, just as O'Connor came up with that and, and Herker currents in the, Clemsville Highell, Cluclex Clan, crossed on the hill case, and I thought that was a pretty good idea. That is that we have a disclaimer when you don't like the speech, and you don't believe it's appropriate. The State can do that, and I think that's largely part of the answers. This is not, certainly not purely governmental speech, because the action of the State is only approval. As to the pleasant, grove city, Utah case, monuments are in fact unique circumstances. This court had decided, Perry, when Darden versus Perry, from years ago, involving in just where I put a map of the state capital grounds with all the monuments in it. Those monuments said, and when that case was decided, been there over 100 years, and the monument had questioned in the 45 years. Monuments are different than any kind of speech in a park, because of the nature of the creation. You couldn't, you'd have best and commons with monuments every seven feet, which is you can't do that. And that, that case turns on those facts, and I believe it is absolutely correctly decided. I'm also convinced that the, John, and Jonas versus Salinas, started marking borders correctly decided, because it started with the State, with a statute passed by Congress, telling the Department of Agriculture to do something, right, we're marketing the material, have it submitted back to the Secretary of Agriculture, let him approve it, then go market it and levitate tax on imported beef to support it. That's all government speech. Do you know how much money Texas makes from this? I don't have that, and this is not a line item in the budget, but watch. That's really all this is about, isn't it? Yes. That's why Texas is in the business. And so people get to play, and to the business with them that they like what they're saying, and they don't get to do business with them, they don't like what they said. Thank you, Council. Mr. Keller, you have three minutes remaining. You have very limited, revolved time. I do have one question. We asked a question about the Republican, the Democrat distinction, you said, oh, there might be some other thing you could pick. Is there a first amendment standard that you can use to deny that play? I believe it would be government speech, and therefore there would not be a first amendment problem, but I believe it would not be allowed, because other constitutional bars would apply. No, for a commitment. Just as if a monument were put up in a public park on partisan or candidate speech. It would be the government speaking, however, it would not be allowed under other constitutional provisions. Justice Lee don't, Justice Kagan, if I can suggest a way to avoid the billboard problem, when the government has its name on the speech, and when it is part of a regulatory process, or a program of the governments, and there's flimma notice and comment, and there's a public vote, and there's no abridgment of traditional free speech rights, which is this case, I think that's government speech. Justice Breyer, to address some of the other interests that Texas has here, Texas wants to prevent offensiveness and vulgar speech and wants to prevent confusion, misrepresentation, promote safety. It wants to celebrate the diverse interests that the state has. Justice Sotomayor, you're absolutely right that even if this is hybrid speech, and it does take two to tango in this situation, you need both the motorist and the state propagating the message, that that is still government speech. All of this court's cases on government speech have been that posture. For one, chlorific, toy matter, all of our sites in our apply brief and our opening brief, to Title 43 of the Texas Administrative Code, those have been renumbered since the filing of our reply brief, but the substance is all the same. And at base, this is not just about Texas making money, although Texas does make money. This is about the state of Texas not wanting to place its stamp of approval on certain messages, and a speaker is not entitled to the impromotor of the state of Texas on whatever message that it wishes to put on a license plate. Thank you, Mr. Chief Justice. Thank you, Council. The case is submitted