In Wooley v. Maynard (1977), the Supreme Court ruled that the First Amendment protected New Hampshire drivers who, objecting to the State's motto of "Live Free or Die," were entitled to tape over that motto on their state-issued license plates. There matters stood for some years, with the occasional Floridian no doubt taping over "Sunshine State," and the odd anti-Quaker or merely anti-social Pennsylvanian taping over "You've Got a Friend in Pennsylvania." Then the states discovered that they could make a quick buck by issuing specialty license plates with customized messages. For an extra $35 or so, a Texan could get a plate saying "Hook 'Em Horns" or "Go Aggies," or whatever. Good fun and a good source of revenue.
This being America, it couldn't last, and so people who wanted to take every opportunity to make a political point got into the act, demanding the right to make stronger statements, including anti-abortion statements, on their license plates. In some states, the government obliged. Thus, Tennessee permitted pro-lifers to obtain state-issued "Choose Life" license plates, even as the state didn't offer an alternative such as "pro-Choice" or "Every Child a Wanted Child." So the ACLU sued and in a 2003 FindLaw column, I argued that the ACLU had a weak constitutional argument (although I thought the Tennessee legislature acted badly in its administration of the program). The Sixth Circuit ultimately agreed with me on the First Amendment issue.
Meanwhile, cases of this sort have proliferated. In the latest one, decided a couple of days ago, the Ninth Circuit ruled that if a state decides what messages to permit by a citizen petition process, then it cannot exclude a "Choose Life" plate. The Sixth and Ninth Circuit rulings are not necessarily inconsistent with one another. In the Tennessee program, the state itself chose the messages, and so could be thought to have a substantial interest in endorsing only those messages it approved. (If inclusion of "Choose Life" but not "Pro Choice" seems problematic, ask yourself whether you would be equally troubled by a decision to issue "Prevent Forest Fires" but not "Burn Down the Forest" plates.) By contrast, the California program looks more like a forum for private speech, and accordingly, a government decision to grant some but not other petitions looks more like censorship.
Still, the existing doctrinal categories seem quite artificial. Either the speech is attributed to the government, in which case the government need not be content-neutral, or the speech is attributed to private actors, in which case content-neutrality is required. In fact, in both Tennessee and California, we have a mixture of governmental and private speech. Indeed, given the pervasiveness of the state, it seems that in EVERY speech case, we have some mix of government and private speech. What look like cases calling for the drawing of sharp lines turn out to be points along a spectrum. At least so argues Caroline Corbin in a very interesting article forthcoming in the NYU Law Review. I'll post a link when it's available.
Posted by Mike Dorf