License (Plate) to Discriminate: Recent Developments in Government Speech

License Plate Preamble

Public Domain, via Wikimedia Commons. User Qqqqqq “created this image of a public display [of Preamble by Mike Wilkins] owned by the United States federal government and presented to the public at the Smithsonian Institution.”

I previously wrote an introduction to the government speech doctrine, the boundaries and reach of which have been redefined after the Supreme Court’s 2015 decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc. (If you’re unfamiliar with Walker, you might want to read that post or skim the case before continuing.) I noted concerns that Walker might provide government with a license to engage in viewpoint discrimination, a practice which, under other circumstances, is among the most offensive to free speech law.

An opportunity to address those concerns arrived quickly after Walker. After a mere eleven days, in two sentences, the Supreme Court issued an order in Berger v. ACLU:

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further
consideration in light of Walker . . ..
The Court could have issued an opinion nearly as brief, such as “In light of Walker, we reverse.” Was something different about Berger?

Another License Plate Case

Berger arrived at the Supreme Court from the Fourth Circuit, which decides (mostly federal) law for Maryland, Virginia, West Virginia, North Carolina, and South Carolina. That court issued its opinion in ACLU v. Tatadifferent name, but the same case. (This case has changed names several times, which is admittedly confusing.)
Like Texas, North Carolina operates a specialty license plate program with 188 options. Repeatedly, it rejected proposed designs with a pro-choice message. In 2011, the state approved a pro-life specialty plate design reading, “Choose Life.” In Walker, Texas rejected a specialty license plate design without considering the design’s counterpart, but here, North Carolina had made a clear choice between opposing sides in a political and social debate.
The ACLU, joined by North Carolina drivers who wanted the opportunity to display a “Respect Choice” license plate, challenged the state’s choice. North Carolina asserted that it had engaged in government speech, and as the Fourth Circuit noted, North Carolina “does not deny that it engaged in viewpoint discrimination[.]” If the speech was North Carolina’s, it was free to do so.
The Fourth Circuit rejected North Carolina’s argument. The North Carolina specialty license program wasn’t government speech, but a forum provided by the government for private speech. In such a forum, viewpoint discrimination is unconstitutional.
Then the Supreme Court decided Walker.

Tata  Becomes Berger Becomes Tennyson

The Fourth Circuit issued its post-Walker opinion less than a month ago in ACLU v. Tennyson. This time, the court ruled in favor of the state. North Carolina’s “specialty license plate program . . . is substantively indistinguishable from that in Walker.” The speech belongs to the government, which may discriminate among viewpoints without violating the Free Speech Clause.

Judge Wynn, who wrote the opinion in Tata, disagreed, pointing out that Walker “did not address, much less overrule” the idea of “mixed” speech with elements of both private and government speech. In dissent, he contends that North Carolina’s program is “mixed” speech, even after Walker, pointing to the state’s own language on its website:

North Carolina repeatedly told its citizens that they can “‘[m]ake a statement with a specialized or personalized license plate,’” inviting them “to ‘find the plate that fits
you’” in a “specialty plate program . . . ‘allow[ing] citizens with common interests to promote themselves and/or their causes.’”

The Plate Paradox

Points from Judge Wynn’s now-vacated 2014 Tata opinion still raise questions with the holdings of Walker and Tennyson. For example, it referenced Wooley v. Maynard, the 1977 Supreme Court opinion holding that New Hampshire could not force a couple to display the state’s motto, “Live Free or Die,” on their license plate, when that motto conflicted with their religious beliefs. This compelled speech case supports the idea that license plate design is, if not private speech, at least mixed speech.
Paradoxically, Walker relied on Wooley to make the opposite point! In the Walker opinion announcement, Justice Breyer said:

We also recognize as we have previously held that the First Amendment limits a State’s authority to require a private party to display a license plate containing a government message with which the private party disagrees. Taking that earlier case together with today’s case produces a kind of legal symmetry. Just as Texas cannot force a private citizen to convey on his or her license plate a message with which he or she does not agree. So the Sons of Confederate Veterans cannot force Texas to convey on its license plates a message with which the State does not agree.

Tata points out another problem with declaring specialty license plates government speechspecialty license plates with a religious message. If these are government speech, do such license plates violate the Establishment Clause!?

What About Personalized License Plates?

If specialty license plate designs are government speech, are personalized license plates private or government speech? The Volokh Conspiracy recently highlighted  Minnesota’s plan to revoke an offensive personalized plate reading, “FMUSLMS.” David Post noted that this “[l]ooks like viewpoint-based . . . discrimination[.]”

Since Walker, a state court has addressed personalized plates. In Mitchell v. Maryland Motor Vehicle Administration, the Maryland Court of Special Appeals held that a personalized plate was private speech in a government-provided forum, a nonpublic forum to be precise.

Maryland had issued a personalized license plate which read, “MIERDA,” to Mr. Mitchell. Upon learning that this was Spanish profanity, Maryland rescinded the plate. The court held that Maryland’s action survived Mr. Mitchell’s First Amendment challenge, because in a nonpublic forum, restrictions on speech must be reasonable and viewpoint-neutral. In such a forum, content discrimimation is permissible. Prohibiting profanity on personalized license plates was content discrimination and viewpoint-neutral and therefore perfectly constitutional.


Posted in Free Speech, government-speech, Legal Analysis

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Constitutional law (mostly civil rights) for everyone! The author of this blog attempts to make legal issues, cases, and news stories with a consititutional connection accessible for any audience. The goal is to provide information, analysis, and an opportunity for conversation. Please feel free to ask questions or respond in the comments or via e-mail. Dialogue, disagreement, and most of all decorum are highly encouraged.
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