Friday, February 01, 2008

Choose Life or Die

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


Sobek said...

The ACLU in Louisiana filed a similar case when I lived there. If I recally, the District Court rejected their challenge because the Plaintiff conceded that he or she hadn't even tried to get the state to issue Keep Your Laws Off My Body (or whatever) plate, so she couldn't complain that the State had agreed to produce Choose Life plates requested by pro-life drivers.

In my 1st Amend. class, I asked whether the outcome in Wooley would have been different if the "message" had been politically neutral -- something akin to taping over the words "Sunshine State" or as of 2003 in Louisiana, the words "Sportsman's Paradise." Instead of an answer I got a quibble: the Louisiana plates referred to hunting, it was argued, which is a political issue to the extent it implicates gun control and/or animal rights. Huh. So I would add to your generalization: not only does every speech case involve the government, but every phrase can be construed as political.

egarber said...


What if Tennessee had issued specialty plates saying "Christianity is Supreme", while offering no alternatives? Actually, even if there were alternatives, it seems to me the state might still fail the Lemon test.

egarber said...

Another one:

What if the "private forum" approach in California resulted in.a plate that read, "black people are inferior"?

Sobek said...

What about a California plate that says "Nancy Pelosi is a Communist"?

Michael C. Dorf said...

A few thoughts:

1) "Christianity is Supreme" would be an Establishment Clause violation if we attribute the message to the state but arguably not if it's a private message in a public forum.

2) Sobek is absolutely right that everything is potentially political and/or controversial, which is one reason why First Amendment doctrine doesn't draw a sharp distinction between political and non-political speech (although certain other categories of speech get less protection).

3) Eric's example of a message of white supremacy might be protected as private speech, which shows why the California approach is highly problematic.

4) Sobek's example of "Nancy Pelosi is a communist" seems to me would have to be allowable (as a statement of opinion rather than literal fact, obviously). The state can't open up a forum for speech and then specifically exclude messages critical of particular office holders.

5) It's clear, is it not, that all of these messages would be protected if they appeared on bumper stickers, which leads one to wonder why states choose to embroil themselves in these controversies. If I were designing a state program, I'd have a small number of state-approved bland messages, or better yet, no program at all.

egarber said...

1) "Christianity is Supreme" would be an Establishment Clause violation if we attribute the message to the state but arguably not if it's a private message in a public forum.

One thing that popped into my mind was SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE (can you tell I copied the case title from wikipedia? :) ).

Part of me thinks the process at issue there -- where students took a vote on whether to hold an "invocation" -- is vaguely similar to one where the state allows citizens to vote on a message (the CA case you brought up).

OTOH, in Sante Fe, it was a tightly controlled and narrow platform; the California contest is certainly wider than that. Maybe that means the former is state action while the latter might be a public forum.

egarber said...

oh, and just for the heck of it, here's my prediction:

Giants 31
Pats 28

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