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Monday, June 22, 2015
Walker meets Wooley
In last week's Walker v. Sons of Confederate Veterans, SCOTUS held that specialty license plates constitute government speech, meaning the state can exclude or include whatever groups or messages it wishes, regardless of how viewpoint discriminatory it is being. This basically resolves controversies currently pending in several states over pro-choice/anti-choice license plates--the state can do what it wants. It can allow for both messages, exclude both messages (albeit for different reasons than the Second Circuit relied on in upholding New York's blanket exclusion of messages relating to controversial political subjects, such as abortion), or exclude one and include the other. The Fourth Circuit is currently considering a challenge to North Carolina's program, which offers a "Choose Life" plate but rejected a plate in support of reproductive freedom. Walker ends that dispute and requires that the state's program be upheld The Fourth Circuit last year held invalidated North Carolina's program allowing for a "Choose Life" plate but not a corresponding plate in favor of reproductive freedom; a cert petition is pending.
So is there any way for a person in North Carolina to use a license plate to display a message in support of reproductive rights when the state refuses to allow that specialty plate? How about this: Pay for the "Choose Life" plate, then make a conspicuous show of placing tape or something else to cover the anti-choice logo. The First Amendment allows a driver to cover the state-speech motto on the plate, as the state cannot compel a driver to serve as a "'mobile billboard'" for the State's ideological message." Under Walker, "Choose Life" is the state's ideological message for Wooley purposes, which a driver cannot be compelled to display. The obvious way not to display the state's message is to not purchase the "Choose Life" plate, which the state does not compel (unlike New Hampshire's general "Live Free or Die" plate). On the other hand, if the state did compel that as its sole license plate, a person unquestionably could cover the logo.
It follows that First Amendment should also protect a person who combines those options: Pay the extra money for the specialty plate specifically so she can cover the state's message.* Covering a state-sponsored message with which a person disagrees involves a protected message that is different from declining to purchase and display that message in the first instance. Additional meaning flows from the person not just counter-speaking to the state message, but using the state message as the vehicle for the counter-speech. For a stark comparison, an individual is not obligated to purchase or display an American flag, although she may choose to purchase it so she can set it on fire. Each presents a different message that a speaker is entitled to put forward. Given that difference, the state should not be able to successfully argue that the driver lost her right to cover the slogan, a la Wooley, because she willingly paid extra for the plate with that slogan.
[*] There is a separate question of whether anyone would want to do this. My understanding is that in some states, a portion of the money for some specialty plates goes to the cause reflected on the plate. So a supporter of reproductive freedom will not buy the "Choose Life" plate, even to make the statement of covering the logo, if the money is going to anti-choice causes.
Thoughts?
Posted by Howard Wasserman on June 22, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink
Comments
What are we supposed to do with all the annoying and insulting "god" slogans all over our currency?
Posted by: Jimbino | Jun 24, 2015 11:44:55 AM
No. Wooley means the state cannot prohibit people from covering the license plates, whether through a direct requirement that the motto be displayed or through a generally applicable law prohibiting defacement. The question is whether that changes if the driver purchases the state message (when not obligated to do so) and then covers it.
Posted by: Howard Wasserman | Jun 23, 2015 4:33:01 PM
Query: Might covering over the portion of a plate depicting the confederate battle flag violate a state statute on defacement? Would such a statute be constitutional? In any event, such covering might result in retaliation by officials and/or others.
Posted by: Shag from Brookline | Jun 23, 2015 4:24:27 PM
If the license plate is government speech, I wonder if the government also has the power (or the breadth of said power) to keep off private speech except in limited ways (Wooley would be an easy case).
The idea of purposely getting a government endorsed message to make a political statement brings this to mind. Also, if a state wishes to avoid any association with a message, including racist in nature, such a 'defacement' of "government property" might be allowed.
The opinion to me opens up such hypotheticals though where they will fall in practice is as suggested unknown at this time.
Posted by: Joe | Jun 23, 2015 11:31:50 AM
If the license plate is government speech, I wonder if the government also has the power (or the breadth of said power) to keep off private speech except in limited ways (Wooley would be an easy case).
The idea of purposely getting a government endorsed message to make a political statement brings this to mind. Also, if a state wishes to avoid any association with a message, including racist in nature, such a 'defacement' of "government property" might be allowed.
The opinion to me opens up such hypotheticals though where they will fall in practice is as suggested unknown at this time.
Posted by: Joe | Jun 23, 2015 11:31:47 AM
If the license plate is government speech, I wonder if the government also has the power (or the breadth of said power) to keep off private speech except in limited ways (Wooley would be an easy case).
The idea of purposely getting a government endorsed message to make a political statement brings this to mind. Also, if a state wishes to avoid any association with a message, including racist in nature, such a 'defacement' of "government property" might be allowed.
The opinion to me opens up such hypotheticals though where they will fall in practice is as suggested unknown at this time.
Posted by: Joe | Jun 23, 2015 11:31:44 AM
I do not know, and have not looked into, whether the right in Wooley includes only covering the offending state message or whether it also includes altering the government's message to create a new message (as opposed to the absence of the original message). In other words, whether the Maynards could cover-up "Live Free or Die" or whether they could have written over it to say "Live Under the Thumb of Tyranny or Die". I don't think that matters for the government-speech analysis--the alteration or covering of the government message by the private vehicle owner is plainly private speech, not government speech.
Posted by: Howard Wasserman | Jun 22, 2015 8:16:15 PM
"establishment-clause challenges to state plates"
What sort of plates? Even Scalia seems to think "In Christ We Trust" (too sectarian) would be disallowed though not a Ten Commandments monument (okay monotheism symbol). So, an official Christ license plate or even only providing Christ vanity plates could be problematic. It would be Kennedy's permanent Christian cross on the statehouse scenario. Some lesser endorsement (including of God alone) would probably be acceptable.
Anyway. If "Choose Life" is voluntary, no one is forcing them. So, unsure about that bit of theater. If it is not voluntary akin to a state motto, taping over would be allowed. Plus, I wonder if a state can ban use of any bumper sticker on the license plate (official speech) except to cover up (respond to while leaving it readable?) coerced speech ala Wooley.
Posted by: Joe | Jun 22, 2015 6:19:05 PM
Or just to tack on, forget about physical alteration (which may be generally impermissible for valid reasons); what about a really good sticker in the lettering of the original plate that, from a distance of 10 feet or more, looked like a part of the plate?
Posted by: Asher | Jun 22, 2015 3:10:17 PM
But since Walker treats the plates as government speech and allows the state to refuse making any plate it wants, isn't it possible that Walker also allows states to forbid drivers from, e.g., covering the "Life" in the "Choose Life" plate with a sticker that says "Choice," since the state would otherwise be unwillingly associated with the "Choose Choice" message? I suppose you would say that no reasonable observer would perceive the obviously altered plate to be government speech, though Walker seems to turn only partly on a reasonable-observer approach and otherwise depends on qualities of license plates which would persist in the "Choose Choice" case (state control of plates, state use of plates to convey licensure). And, the state could argue that while no one would perceive it to be voluntarily affirming the "Choose Choice" message, it's nevertheless being compelled to do so in some way. (As you yourself argue, "additional meaning flows from the person . . . using the state message as the vehicle for the counter-speech.") After all, to violate the compelled speech doctrine, one needn't fool anyone into thinking the compelled speaker likes what he's being compelled to say; in Wooley, any observer would recognize that the driver had nothing to do with selecting his plate (there were no alternatives). That said, let's assume that the case comes down to whether a reasonable observer would think the state's endorsing the "Choose Choice" message. If that's the case, does it follow that a driver can put a "Choice" sticker over "Life," but can't paint the plate in a convincing enough way that an observer would mistake it for an unaltered state-issued plate?
Posted by: Asher | Jun 22, 2015 3:04:56 PM
It's not clear. There were separate opinions talking about this in Summum (the monuments-in-the-park case on which Breyer relied in Walker), but not hear. Under a coercion analysis favored by Scalia and Thomas (and possibly others), there would not be an E/C/ problem so long as no one is compelled to purchase or display the license. Endorsement and entanglement seem to be dead letters with O'Connor no longer on the Court.
Posted by: Howard Wasserman | Jun 22, 2015 10:52:16 AM
Does SoCV resolve establishment-clause challenges to state plates? If anything, holding that the plates are state speech would seem to strengthen those claims, wouldn't it?
Posted by: BDG | Jun 22, 2015 9:36:29 AM
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