Personal & public expression horizon

Thursday, October 4, 2007

Litigation over specialty license plates continues in various federal courts
across the country. Many of the disputes arise when state officials issue or
deny specialty plates with the pro-life message “Choose Life,” sometimes also
rejecting a pro-choice plate. Other cases involve specialty plates involving the
Confederate flag or the slogan “In God We Trust.”

The cases present an intriguing First Amendment question over whether the
specialty plates constitute a form of government speech immune from First
Amendment scrutiny or private speech subject to fundamental free-expression
principles. Some courts have determined that the plates are government speech,
while others have characterized them as a forum for private expression – or a
mixture of both government and private expression.

Under the government-speech doctrine, the government can speak for itself and
is immune from First Amendment attack. However, if the plates are considered to
be part of a forum open to private expression, then traditional First Amendment
analysis applies. This means that the government must advance a compelling
reason to restrict speech based on its viewpoint or content.

Consider the example of ACLU v. Bredesen, a lawsuit filed in Tennessee
in 2003 after the state authorized a new specialty license plate with a “Choose
Life” slogan. The state rejected two amendments that would have allowed
pro-choice slogans on license plates. The ACLU contended that the state engaged
in impermissible viewpoint discrimination by allowing the pro-life viewpoint and
disallowing the pro-choice viewpoint. In 2004, a federal district court agreed
with the ACLU and ordered a halt to the license-plate program.

However, in March 2006, a divided three-judge panel of the 6th U.S. Circuit
Court of Appeals reversed the lower court and ruled that the Choose Life plates
could go forward. The 6th Circuit reasoned that the plates were a form of
government speech, writing that “[i]t is Tennessee’s own message.”

The ACLU of Tennessee filed a petition for writ of certiorari to the U.S.
Supreme Court on April 28, 2006, asking the high court to take the case and
clarify the confusion surrounding specialty license plates and the
government-speech doctrine. The U.S. Supreme Court denied review in June

In doing so, the Court missed an opportunity to clarify a split between the
circuit courts on the issue. In Planned Parenthood
of South Carolina v. Rose
(2004) the 4th Circuit ruled that the Choose
Life plates were a mixture of private and government speech subject to the
viewpoint-discrimination principle. In 2005, the Court also denied review of the
4th Circuit’s decision.

Some thought that the U.S Supreme Court might wade into these troubled waters and hear an appeal of the 9th Circuit’s ruling in Arizona Life Coalition v. Stanton (2008). The 9th Circuit ruled that the state of Arizona had violated the First Amendment rights of a group that sought a pro-life specialty license plate. “Preventing Life Coalition from expressing its viewpoint out of a fear that other groups would express opposing views seems to be a clear form of viewpoint discrimination,” the 9th Circuit panel wrote in its January 2008 opinion.

Arizona appealed to the U.S. Supreme Court in Stanton v. Arizona Life Coalition. However, the high court denied review on Oct. 6, 2008.

Though the Court has assiduously avoided the issue so far, the recurring
divide in the lower courts makes this an attractive vehicle for Supreme Court

Updated October 2008