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?