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Wednesday, April 26, 2006

“Choose Life” License Plates

Last month the Sixth Circuit upheld a Tennessee program that allows drivers to choose a license plate bearing the message “Choose Life,” even though the state does not offer a plate communicating the opposite view.   That decision parts with a Fourth Circuit ruling that struck down a similar program in South Carolina.  Consequently, the issue appears headed to the Supreme Court.  Despite the legal uncertainty, states have pressed ahead.  Just earlier this month, Georgia joined the considerable list of states that offer “Choose Life” tags.

Under the typical statute, drivers may elect to pay an additional fee of around twenty-five dollars for the specialty license plate.  Part of the money goes to non-profit organizations.  In Tennessee, for example, profits are forwarded to New Life Resources, Inc.  The statute limits use of the funds, directing for instance that they “shall be used exclusively for counseling and financial assistance, including food, clothing, and medical assistance for pregnant women in Tennessee.”  Groups like Planned Parenthood have tried and failed to persuade these states to offer plates bearing the opposite message.

The constitutional question distills down to whether the plates constitute government speech, in which case courts have found them permissible, or whether they establish public forums that states must open to all viewpoints.  The Sixth Circuit reasoned that the license plate was government speech, largely on the ground that any other ruling would lead to absurd results.  Could it be the case, for instance, that when the government issued a postage stamp during World War II bearing the message “Win the War” it also was required to issue a “Stop the War” stamp?  By contrast, Judge Wilkinson of the Fourth Circuit, concurring in the denial of rehearing en banc, wrote that the license plates become speech only through the choice of private individuals.  Government may not “channel would-be speakers into privileged categories of expression,” he said.  Could states issue plates that endorsed one political party but not the other?

One commentator has predicted that the Supreme Court will strike down the “Choose Life” tags in Tennessee.  I have my doubts.  The Justices could instead observe that our government takes positions on controversial moral questions all the time, often in ways that have the effect of advantaging or disadvantaging private speakers.  Judge Wilkinson worried that departing from government neutrality in this way fosters resentment and damages national unity. For him, the “confidence that all are treated equally with respect to belief, conscience, and expression” builds unity and helps to make “‘e pluribus unum’ the lasting legacy of our nation.” Our official motto, however, is not “e pluribus unum” but “In God We Trust”—a choice that has generated some controversy.   Religion may present a special case, of course. But regarding these license plates the Court may well find that there is no constitutional requirement of government neutrality. I would be interested in your thoughts.

Posted by NTebbe on April 26, 2006 at 12:08 AM in Constitutional thoughts | Permalink


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(putting the establishment argument aside)

Jukebox, when the message on these plates originates with private parties (ie: get 10,000 signatures and $10,000 and we'll start you up), how is that not private speech?

Furthermore, the government is advancing viewpoint-based discrimination, by allowing pro-life messages and not pro-choice messages. It would be another story if the government refused to allow any commentary at all regarding abortion. However, here it's allowing one side to express its view at the expense of another.

Also, the driver is at least partly associated with the message, especially when they are selecting it and paying for the privilege to do so. No one could doubt a driver with a speciality plate promoted that cause. The individual, by his choice to get a specialty plate, bears the ultimate responsibility for that speech, even if it is a government authorized message.

The government can't discriminate when it's selecting amongst which private messages it will favor. This is even more clear when the government issues specialty plates to raise revenue.

I'd like to discuss this with you more (I actually agree that the States DO have this discretion, I'm just playing devil's advocate). Feel free to email me.

Posted by: lawstudent | Jun 2, 2006 5:09:18 PM

I pretty much agree with jukebox user. This is about establishment, pure and simple.

The government can take a position on even controversial subjects. States can wage a public relations campaign to dissuade pregnant women from having abortions -- employing bumper stickers, posters, public service announcements on radio, etc. -- so long as that public relations campaign does not have the effect of infringing a woman's ability to exercise her right to choose. (So a campaign such as "choose to blockade abortion clinics" or "choose to murder doctors who perform abortions" probably would not fly.)

The only constitutional problem here arises if the intended and obvious message that the "choose life" bumper sticker conveys is "choose life because some religions dictate it" or "choose religion" or "choose life because god demands it" -- or something of the sort. That's an establishment problem. And I'm not at all sure that this is what is intended by "choose life."

Posted by: jkieran | Apr 27, 2006 9:54:43 AM

In response to Pho's comment:

Regardless of whether a "One Nation Under God" plate would survive an Establishment Clause challenge, the more important point is that such a plate WOULD (and SHOULD) survive a Free Speech claim, for the same reasons that Choose Life wins.

I think it could go either way on Establishment, for the same reasons that the Pledge could ultimately go either way on the merits. The Big Court is murky on this, and in the circuit, it'd be all about the panel draw, frankly. And even if the Pledge were OK, the plate might not be, for at least two reasons. First, older practices are sometimes more allowable than newer manifestations of old concepts -- look at how the USSC (with Breyer swinging) upheld Texas's 10 Commandments monument from the 50s, while striking down the Kentucky county's brand-new one. Second, the Pledge puts the God-line in a broader patriotic context, while the plate has the phrase stand along, so the God quotient is higher.

On the other hand, the Ohio state motto, "With God All Things Are Possible," was ultimately upheld. But it was shot down 2-1 and then revived en banc, so again, I'd say the God plate would depend on the panel, and then on whether it went en banc or to the Supreme Court.

But again, all this would be under Establishment, not Free Speech, which just again shows how the objectors' real beef seems to be with State endorsement of one view, not the fact that it seems to give one more outlet to prolifers or that it restricts NARAL's ability to trumpet its own view. And endorsement is not a Free Speech notion, unless you get into viewpoint discrimination in public fora, or into compelled speech.

Posted by: jukebox user | Apr 26, 2006 7:32:04 PM

So to continue that thought, the next candidate for litigation is an Ohio specialty plate bearing the legend "One Nation Under God." A conservative Christian group lobbied for the plate. It seems to me that the 6th Circuit finding that license plates are government speech backs defenders of the "One Nation" plate up against the Establishment Clause. Thoughts?

Posted by: Pho | Apr 26, 2006 5:00:47 PM

States win this one.

First, whatever the outcome, it seems to me that the speech is some sort of hybrid between government speech and individual speech, and that the pure "public forum" view has to be wrong. When the government sets us a forum, such as an "open microphone," the speakers can say ANYTHING. Here, the government has not structured the plates to allow ANY and ALL tailored messages. (That might be the case, arguably, with vanity plates, where they give 6-7 letters and numbers to spell whatever. But that's different). At most, the government can give a very, very large selection of messages, and perhaps a "balanced" set, but they still must give a fixed set. Even if plate technology allowed on-the-spot individualized messages, they don't have to. Stamps are a great comparison, because you can make stamps on the fly, but the government need not allow the Nazi stamp, does it?

I think an apt comparison is a jukebox -- the government lets you pick the song, but it pre-loads the 20 CDs, or 60, or even hundreds -- but it still sets up the group from which you choose.

From an entirely different angle, a comparison to Establishment Clause, as opposed to Free Exercise, is telling. In Establishment cases, a plaintiff dislikes the State's endorsement of Christianity by way of a creche; the creche does not truly interfere with his practice of Islam or whatever, but it tells him he is an "outsider." With "Choose Life," the objectors dislike the thumb on the scale for one side in a debate. The problem, for them, is that there is no Feee Speech equivalent of the Establishment Clause; to the contrary, it's clear that the government CAN take sides, even on issues where the legality of the choice is clear. Just as the goverment can run "stop smoking" ads, does anyone really doubt that the government could run "choose life" TV ads, or put up billboards, etc.?

Imagine if, instead of the plates, the government printed a bunch of bumper stickers and placed them at the BMV for free distribution, or for a buck. They could include "stop smoking," "exercise more," "eat your veggies," and "don't abort." How is that a problem?

Nor is it a problem even if the government adds the "sovereign seal of approval," e.g., "The State of Alabama encourages you to eat your veggies," accompanied by the state seal, the smiling governor, whatever.

Not only does the objecting view not make sense doctrinally, but it also fails on practical grounds. As many commenters have noted, including some courts, there's no way to police some line between "controversial" speech, which would require an opposing view, and "non-controversial" speech, which would not require an opposing plate. "Save our wildlife" -- "No, eat them all. Wipe out the bald eagle." "Drive safely" -- "Hey, what are anti-lock brakes for, anyway?"

So the only solution would be to shut down all speciality plate programs. But that still leaves the problem of how far that goes: can the government no longer print bumperstickers or T-shirts to promote favored messages? Note that with both bumperstickers and T-shirts, the government still leans on the choices of individuals to re-publish the messages (unlike with TV ads or billboards). So unless the rule is going to be that the government can never build a jukebox of messages, and allow individuals to pick from the pre-selection, the plates here have to OK.

Politically prudent? That's another debate. But constitutional? Sure.

Again, I ask anyone who finds the plate unconstitutional to explain (1) whether all plates have to go, or how to draw the lines, and (2) what to make of stamps, government-made T-shirts, etc.

Posted by: jukebox user | Apr 26, 2006 4:10:28 PM

Does anyone know of a di minimis doctrine for things like this? It strikes me that a "choose life" license place (or a "live for choice" license plate, or whatever) is about the smallest government injury to free speech that you can imagine. I mean (a) the state isn't really spending taxpayer money on it, since it charges extra for the custom license plate, and presumably the marginal cost of production for a custom plate over the normal plate isn't that high. (b) the state isn't forcing anyone who doesn't want to be associated with the message to be associated with it, except to the miniscule extent that it appears as state endorsed, and (c) there's numerous opportunities for counter-speech, called bumper stickers.

So while technically, arguably, judge Wilkinson is right that the government is "channeling" speech into a favored viewpoint (if they give aware D.A.R.E. shirts, do they have to give away pot leaf shirts too?), the "harm," such as it is, can't possibly be sufficient enough to be worth constitutional scrutiny. Were I given a black robe, I'd bounce any concievable plaintiff for lack of standing.

Posted by: Paul Gowder | Apr 26, 2006 2:29:40 PM

I am more confused by the Sixth Circuit's method in this case. Specifically, I am failing to see why Johanns is dispositive of
the forum issue in this case. I would appreciate some help in
understanding the orgin of the proposition that if the speech
can be attributed to the government, no forum has been created.
Here, it seems like a forum has been created: over 100 different
messages are conveyed, private groups help fashion the message,
and individual speakers choose to place them on their cars. To
me at least, this looks like the government has created a forum
(probably nonpublic). However, even in a nonpublic forum this
decision to allow this particular viewpoint may not survive even
rational basis review. Any thoughts?

Posted by: Will Luzader | Apr 26, 2006 1:42:42 PM

Wilkinson's argument seems to be problematic under Wooley v. Maynard. There, NH put "Live Free or Die" on its license plates, which the plaintiff was allowed to cover up. But there was no claim that the plaintiff should be allowed to not only cover up the government message, but also say something else on the license plate instead. Thus, when the government chooses to put a motto on a license plate, with a car owner's only option being to cover up that message, it is already channelling its citizens speech into certain categories, which is what Wilkinson claims is unconstitutional.

Posted by: pk | Apr 26, 2006 11:46:53 AM

Thanks for the post, Nelson. These cases are fun to teach, because they really push students out of comfortable categories (e.g., "government speech" v. "public forums", etc.).

The cases are made harder, I suppose, by the Wooley precedent. (I have to admit, I've never found the reasoning in that case particularly persuasive).

In my view, for what it's worth, the government is not required to be neutral on the question whether abortion is right or wrong, desirable or regrettable. (We might well *want* the government to be neutral, and therefore we might want to vote against "Choose Life" license plates, but . . .). Even if one accepts the bottom-line of Casey / Roe -- i.e., that the government may not prevent women from choosing to have abortions -- it need not follow that government speech to the effect that abortion is wrong imposes a constitutionally "undue burden" on the right to an abortion.

Posted by: Rick Garnett | Apr 26, 2006 11:45:29 AM

Has anyone identified what, exactly, would be the opposite of these plates? In a not entirely serious vein...

Choose Life - urging people to use their autonomy to select not-abortion, one presumes. Unless it's an attempt at jury tampering in death penalty cases?

So the opposite is, what?

-Choose Death - the opposed jury tampering.

-Have Life Selected For You - the fate of those whose choice is unduly burdened

-Let Someone Else Decide

I just realized that the plate doesn't necessarily follow the assumption that the fetus is a person and that abortions are murder. Instead, it urges a choice, presumably trying to achieve one outcome without bringing up murder (which is inflammatory, even if it were accurate).

Of course, the plate doesn't speak to miscarriages.

Posted by: Eh Nonymous | Apr 26, 2006 10:42:13 AM

"Could states issue plates that endorsed one political party but not the other?"

With the way things are polarized right now, these liscense plates seem to amount to just that.

I think if the government doesn't want to be neutral, it should stay out of such a controversial political battle. What Tennessee is doing seems deeply unfair.

Posted by: aLs | Apr 26, 2006 1:36:06 AM

It's political spam. A quick google search shows that "Bo Chen" has been indiscriminately posting this same yawnsome rant all over the place...

For example:

I wonder if a quick email to the administrator of his employer's - first america corporation's - IT department might be in order...

Posted by: Simon | Apr 25, 2006 9:41:39 PM

Not sure, but we're taking care of it...

Posted by: Dan Markel | Apr 25, 2006 9:17:47 PM

Was that a huge and weird new sort of comment spam- rant as comment spam- or something else?

Posted by: Matt | Apr 25, 2006 9:12:45 PM

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