Tuesday, May 01, 2007

Live Free or Don't

As reported in the NY Times Week in Review on Sunday (p 5), the U.S. State Department has begun to issue new passports that contain an electronic security device and patriotic images on every page. (See an animated sample here.) Most of the critical discussion of the new design---including in the Times article---has focused on aesthetic considerations. Here I want to raise an issue of free speech.

One of the visa pages includes a background image of Mt. Rushmore and the following quotation from President Kennedy: “Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.” Suppose that a pacifist disagrees with this sentiment and objects to the government conditioning his ability to travel abroad on his acting as an involuntary messenger for what he regards as jingoism. Following the example of George and Maxine Maynard, he places a thin piece of opaque tape over Kennedy’s words on his passport. The Maynards were prosecuted for deliberately obscuring the phrase “Live Free or Die” on their New Hampshire license plates, but the U.S. Supreme Court held in Wooley v. Maynard (1977) that in so doing they were protected by the First Amendment.

Would my hypothetical pacifist passport holder have a First Amendment defense to the federal crime of altering or mutilating his passport (assuming the statute would be construed as applying to this conduct)? The Court ruled for the Maynards even though no reasonable observer would think that the state’s motto on a license plate connoted agreement with the motto by the car’s driver. (In 1977, specialty plates with a variety of mottoes, were unavailable. For my account of an interesting free speech conundrum arising out of specialty plates, see my 2003 FindLaw column here.) Nonetheless, the Wooley Court reasoned that the speaker has an interest in refusing to mouth the state’s message, regardless of whether anybody would impute sincerity to the exercise.

Dissenting in Wooley, then-Justice Rehnquist argued that there was no compelled speech because the Maynards “could place on their bumper a conspicuous bumper sticker explaining in no uncertain terms that they do not profess the motto ‘Live Free or Die’ and that they violently disagree with the connotations of that motto.” Although that option didn’t satisfy the Court then, in last year’s Solomon Amendment case, Rumsfeld v. FAIR, a unanimous Supreme Court thought that the ready ability of law schools to distance themselves from the anti-gay message of military recruiters on campus (due to “Don’t Ask, Don’t Tell”) was a sufficient basis for concluding that the law schools were not, in virtue of the requirement that they inform students of the opportunity to interview with military recruiters, being made the involuntary bearers of the government’s ideological message. So the question for my hypothetical challenge to the new passports is whether a passport is more like a license plate or more like information about military recruiters and the money (presumably permissible despite containing such charged messages as “E Pluribus Unum” and “In God We Trust”). Test case, anyone?


egarber said...

It seems to me that the passport dynamic more closely resembles Wooley.

With the passport, carrying forth the message is compelled on some level, unlike the Tennessee case in your 2003 article, where motorists could choose to purchase a separate pro-life plate among others -- which arguably puts the latter in a category closer to government funding of the arts, etc.

As I understand it, the Tennessee case wasn't about drivers covering up the "volunteer state" reference on the basic plate; that would have put it in league with Wooley.

But I do have this hypothetical:

What if somebody put tape across "in god we trust" on a dollar bill? Does defacing money affect its functional utility in a way that makes it different than a license plate -- i.e., maybe seeing the whole bill is important for heading off counterfeiting, for example?

And if so, does removing the ability of a person to "opt-out" (covering up a license plate message, for example) put added burden on the government to leave such messages out altogether?

Put another way, what if a state embedded a message within the renewal tag on your plate, which can't be obscured for police to properly enforce the traffic laws?

egarber said...

As for the comparison to military recruitment on campus, I have a couple of observations:

It seems to me that it might be a question of relative ability of a person to make known his / her distance from the message. At a law school, there are plenty of outlets for students / faculty to criticize military policy -- sort of the way one can put counterpoint bumper stickers all over their car.

But with passports, what can one do -- wear a T-shirt with a counter message each time it's presented?

In some ways, the passport example might be more "Wooley" than even Wooley itself was, if that makes any sense.

Carl said...

“Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.”

Why can't a pacifist share this sentiment? It seems perfectly consistent with an ethic of nonviolent resistance. Is it enough that most people would interpret it as a willingness to take up arms, or that Kennedy himself meant it as such? Or is the problem that this is how the passport issuers interpret the quote and they intend to put its readers on notice of some official state policy? Would the Wooley case have come out differently if "Live Free of Die" were attributed on the license plate to Ethan Allen or his NH equivalent and could be viewed not as an indorsement of the sentiment but as an expression of the state's venerable history?

Garth said...

ultimately, i think the government does not belong in the realm of propogating speech.

in some sense, everytime the government talks, they infringe on the first amendment rights of its citizens.

the primary difference raised in the military recruiting cases is that the party being forced to "speak" are public universities, that take public money, and the "speech" of the recruiters is coupled with the "action" of signing recruits. employment issues are raised, public funding is raised, the role of public universities and comity to other public institutions are raised.

they should take all reference to god off our money. our passports should not become patriotic advertising. our license plates should not espouse government slogans.

our government should have more respect for the first amendment rights of its citizens.

Garth said...

by "talks", I mean attempts to interject its view point into any given debate.

David C. said...

I'm just relieved it doesn't have a picture of Geore Bush with a bullhorn and a caption that reads "Fight terror. Protect Freedom. Vote Republican."

Sobek said...

"in some sense, everytime the government talks, they infringe on the first amendment rights of its citizens."

Garth, the First Amendment protects my right to say what I want to say, not to avoid hearing what I don't want to hear. If you need a government that protects you from messages it considers undesireable, I can recommend a few countries to you.

David C., that was funny.

Adam said...

Wooley is distinguishable. Wooley involves a license plate, an item that must be displayed to the public on your car every time you venture onto public roads. By comparison, a passport, for the most part, need only be shown to government bureaucrats (unless you lose your license and need to get into a bar). Also, the passport quote at issue here is only displayed on one page, making its showing even less frequent. As such, the freedom to (not) associate is far more compelling in Wooley where the public can view your tacit approval of the message every time you drive your car.

Anil Kalhan said...

It's good to know that our tax dollars are being put to such productive use.

Garth said...

i don't want protection from a point of view.

i just don't think it appropriate for my government to be advocating for various points of view and certainly not enshrining their own in the law.

Jordan said...

Responding to egarber's last hypothetical about the state making it more difficult to obscure a message on a passport or license plate:

This seems to be a rare violation of the least restrictive means test from O'Brien and Ward v. Rock Against Racism.

The Court would define the regulation in one of two ways. It might define the regulation in terms of moving the political message from the uncoverable section of the license plate/passport to the renewal tag/barcode. If it defines the regulation this way, this will almost surely trigger/fail strict scrutiny as a content-based distinction.

If the Court defines the regulation broadly, i.e., the provision of license plates with renewal tags to enforce registration rules, the regulation should fail the (weak) least restrictive means test. Though the test does not require the government to adopt the absolute least restrictive means, its purpose seems to be to prevent gratuitous inhibitions of speech. Since the government would be able to effectively serve its interest by moving the political message away from the renewal tag/barcode while ceasing to infringe freedom of speech, a court would likely classify the regulation as a gratuitous infringement.

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