Plaintiffs alleged that the statute providing for the "Choose Life" plate abrogated their right to free speech. Keeping an Eye on Your Tail End
The Continuing Controversy Over Specialty License Plates

In some quarters, the back ends of motor vehicles are the back ends getting attention. In Florida, an Italian-American couple is undertaking a legal challenge to get back from the Department of Motor Vehicles their confiscated "two dagos" personalized license plate, which they paid for and have had for several years. Some guardian of sensitivity found the plate offensive and filed a complaint.

Also in Florida, a federal court ruled this week against abortion rights activists who tried to stop the distribution of fees from state license plates bearing the slogan "Choose Life." The abortion rights group argued that the payments violated the Establishment Clause and other First Amendment principles because the fees went to agencies offering adoption services, but no abortions. U.S. District Court Judge K. Michael Moore denied their request, finding the group lacked sufficient evidence to back its claims. This follows an earlier decision in the same case (Women’s Emergency Network v. Bush) in which Judge Moore denied the group’s motion for temporary restraining order and/or a preliminary injunction. The group has promised an appeal.

In March, a panel of the United States Court of Appeals for the Fifth Circuit decided (2-1) that the group challenging Louisiana’s "Choose Life" specialty plate lacked standing to challenge its constitutionality. Specifically, plaintiffs alleged that the statute providing for the "Choose Life" plate abrogated their right to free speech, constituted an impermissible establishment of religion, and denied them their right to due process in violation of the First and Fourteenth Amendments to the United States Constitution.

Most interestingly, they argued that the statute violated their First Amendment rights because it discriminated based on viewpoint by allowing only the "pro-life" viewpoint to be expressed. Without addressing the merits of the case, the court held that the plaintiffs lack standing to challenge the statute because, in part, "even if the Choose Life statute is declared unconstitutional, [the plaintiff’s] complained of injury would not be redressed as that remedy will not provide [plaintiff] a forum in which to express her pro-choice viewpoint. Instead, the requested relief would merely function to prevent other motor vehicle drivers from expressing their choose-life point of view."

The other specialty license plate case getting considerable attention involves a challenge to a Virginia statute that directed the Department of Motor Vehicles to forbid The Sons of Confederate Veterans, Inc. from displaying a logo or emblem of any kind on its specialty license plate. The language of the statute authorizing the plate was identical to numerous other specialty plate provisions, except for the ban on displaying logos or emblems, including the Confederate battle flag. The group challenged the limitation, arguing that it violated rights of free speech and expression and equal protection. This spring, a unanimous three judge panel of the United States Court of Appeals for the Fourth Circuit found the logo restriction unconstitutional, specifically because the plates are not "government speech" and the restriction constituted viewpoint discrimination that did not survive strict scrutiny review.

It has been 25 years since the United State Supreme Court held that New Hampshire violated the First Amendment rights of objecting drivers when it required them to display the state motto "Live Free or Die" on their license plates. (Wooley v. Maynard, 430 U.S. 705 (1977)). This decision has been cited hundreds of times for the position that a license plate is a means of expressing speech.

The sale of specialty and personalized license plates (different from the standard state plate, which may include the state motto, flower or logo) has grown in popularity over the last 15 years, particularly since Florida issued in 1987 a plate commemorating the space shuttle Challenger. A majority of the states now permit motorists to purchase, for an extra fee, a specialty license plate that advertises a particular organization’s name, logo or motto. Most of the states also permit a motorist to select the number/letter combination on their plate for another fee, of course.

In some states, motorists willing to pay the extra fee for a specialty license plate (roughly $25-50 per year, plus minor administrative charges under $5) have more choices available to them for the plate than they do makes and models of cars. Texas has over 150 designs; Virginia more than 300. Not to be one-upped by its southern neighbor, Maryland has over 350 designs. There is even an organization with its own newsletter devoted to specialty license plate enthusiasts, the Auto License Plate Collectors Association.

Designs for plates carry a variety of messages supporting environmental causes, professional sports teams, universities, armed forces and other non-profit organizations. Some are arguably more political and controversial than others, many are obscure and a few are just plain silly — such as South Carolina’s plate for the "shag," the state’s official dance.

This has become a big moneymaking venture for the sponsoring groups, with sales of specialty and personalized plates bringing in millions of dollars. In Texas, for example, sales totaled more than $6 million dollars for the year 2001. Since first released in August 2000, sales in Florida of the extremely controversial "Choose Life" plate alone have exceeded $1 million dollars.

With the majority of fees for specialty plates going to the sponsoring organizations, sales are a great moneymaking venture. Organizations also consider the plates an excellent opportunity to "spread the message" to the public.

Herein lies the crux of the current controversy: Who is speaking? One side argues that it is the government’s message because in most instances the plates have been sanctioned by the legislature or state department of motor vehicles. The other side counters that specialty plates represent the views of private actors because the design of the specialty plate is left entirely to the organizations and additional fees for producing specialty plates are borne by consumers, not the government.

No clear standard has yet been enunciated by the Supreme Court for determining when the government is "speaking" and thus able to draw viewpoint-based distinctions versus when it is regulating private speech and thus unable to do so. The Supreme Court has held that mere ownership of the means of communication is not determinative in deciding who the speaker is. (Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)). Cases from the Supreme Court dealing with government-created fora further demonstrate that government supervision is not conclusive of government speech. See, for example, Board of Regents of the University of Wisconsin v. Southworth, 529 U.S. 217 (2000) (constitutionality of student activity fees) and Legal Services Corporation v. Velazquez, 513 U.S. 533 (2001) (constitutionality of funding for legal services program).

It is well established that "the government can speak for itself." (Bd of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000)). No doubt, some license plate designs represent speech by the government --the official state plates bearing mottoes, emblems, etc. In such instances where the state is the speaker, Supreme Court precedent holds that "it may make content-based choices." (Rosenberger v. Rector & Visitors of the University of VA, 515 U.S. 819, 833 (1995)).

Rosenberger also stands for the principle that when the government is the speaker, the First Amendment does not tolerate viewpoint-based discrimination by the government, even when the limited forum is one of its own creation. Last year, the Supreme Court ruled that a New York elementary school discriminated in a viewpoint-based way by denying requests for space to an evening Bible-study group while making the same space available to nonreligious organizations. (Good News Club v. Milford Central School, 533 U.S. 98 (2001)).

In the license plate context, Supreme Court precedent makes clear that the government cannot act as a censor by deciding which messages appear on license plates. A bedrock principle underlying the First Amendment is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. (Texas v. Johnson, 451 U.S. 397, 414 (1989)).

The three categorical exceptions to speech protection are defamation, obscenity or "fighting words." (R.A.V. v. St. Paul, 505 U.S. 377, 382-83 (1993)). Just this term, the Supreme Court ruled in the First Amendment case of Ashcroft v. The Free Speech Coalition, that "[a]s a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children."

The question here is essentially whether the government is the speaker or whether the government has instead permitted some private entity to promote itself. The answer is obvious — specialty license plates do not represent government speech. The Fourth Circuit Court of Appeals got this right when it adopted the analysis of several other circuits and espoused the following test to determine who is "speaking": "...(1) the central ‘purpose’ of the program in which the speech in question occurs; (2) the degree of ‘editorial control’ exercised by the government or private entities over the content of the speech; (3) the identity of the ‘literal speaker'; and (4) whether the government or the private entity bears the ‘ultimate responsibility’ for the content of the speech... ." (Sons of Confederate Veterans, Inc., 288 F.2d at 618).

Specialty license plates represent private expression placed on a government medium. As such, the government is not making an unconstitutional choice to support either side of the message. Citizens who do not like the message are free to seek recognition of their own group and message through each state’s specialty plate process.

In the absence of a viewpoint-discriminatory decision of the government (such as allowing some organizations meet within the statutory criteria to obtain personalized plates while disallowing others equally within the criteria), the First Amendment permits a state the right to provide its citizens with the option for a specialty license plate and for the money raised through the plate to be used for a purpose consistent with the slogan. This is supported by legal precedent and logic — otherwise Florida’s "Save the Manatee" tag money could go to boating groups, or Texas A&M University’s plate fees could go to the University of Houston.

So why does the license plate controversy continue? Is it because the issue provides an opportunity for further development of our nation’s free speech values? We constitutional enthusiasts would like to think so. More likely, it is that these small metal billboards remain an issue because of money and advertising.

July 18, 2002
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