Why the Lawsuit Challenging Tennessee's "Choose Life" License Plates
Should Fail

By MICHAEL C. DORF
Wednesday, Nov. 12, 2003

A new Tennessee law authorizes the state's Department of Safety to issue specialty license plates bearing the phrase "Choose Life" to car owners who opt for the specialty plates. In addition, part of the fee collected from such plates will be earmarked for an anti-abortion organization, New Life Resources, which will use the funds to promote adoption services.

When the new law was just a bill pending in the state legislature, an amendment was proposed to it that would have authorized optional "Pro Choice" specialty plates as well. That amendment was tabled, though of course, Tennessee drivers may still use bumper stickers to convey pro-choice messages and wholly unrelated messages on their cars.

The American Civil Liberties Union (ACLU) and Planned Parenthood Federation of America (PPFA) recently sued to block enforcement of the law as it was enacted. They argue that it impermissibly favors one side in an ideologically charged controversy. Indeed, they seek to bar Tennessee's entire specialty plates program on the ground that specialty plates invariably promote some messages at the expense of others.

Although superficially appealing, the plaintiffs' position ultimately threatens programs--such as government promotion of the arts and public health education--that organizations like the ACLU and PPFA themselves value. Accordingly, it should be rejected by the courts.

Nonetheless, the case falls between the cracks of several distinct lines of free speech precedents. Whether the courts uphold or strike down the law will likely depend upon which of several analogies they find most persuasive.

The Leading Supreme Court Case Involving License Plates

The Tennessee litigation does not represent the first time a court has been asked to consider the free speech implications of ideological messages on license plates. Beginning in 1969, New Hampshire noncommercial license plates were issued bearing the state motto "Live Free or Die." In 1972, the New Hampshire Supreme Court ruled that a state law making it a misdemeanor to obscure the "figures or letters" on a license plate applied to markings that obscured "Live Free or Die."

That ruling was certainly ironic: It meant that in a state that professed devotion to freedom even over life itself, people were not free to decline to affirm "Live Free or Die."

Responding to this irony and the infringement of personal liberty, the United States Supreme Court ruled in the 1977 decision in Wooley v. Maynard that the New Hampshire law violated the First Amendment. The freedom to speak, the Court held, includes the freedom not to speak.

Accordingly, in Wooley v. Maynard, the Court threw out the conviction of a Jehovah's Witness who had taped over "Live Free or Die" on his license plate.

The Tennessee Program

The holding of Wooley v. Maynard is not directly applicable to the Tennessee controversy because the state does not require anyone to display "Choose Life" on his or her license plate. The new law would make the "Choose Life" plates available as one of numerous options.

Tennessee already offers drivers a wide range of specialty plates. Like many states, Tennessee has found that it can raise revenue by offering two sorts of license plates: plain plates which cost $21.50, or specialty plates, which typically cost $56.50. Some portion of the extra $35 for a specialty plate goes to an organization involved with the specialty theme, with the remainder going to the state.

Some portion of the extra $35 for a specialty plate benefits an organization involved with the specialty theme, with the remainder going to the state. For example, an "animal friendly" plate, depicting a goofy cartoon dog and cat hugging each other, benefits the Humane Society. A National Championship Plate featuring a University of Tennessee football helmet benefits scholarships at that institution. And whether a Tennessee car owner chooses generic or specialty plates, for an extra $35 she can make it a vanity plate.

Given the diversity of offerings, Tennessee can hardly be said to be requiring drivers to carry the "Choose Life" message when they can as easily select plates with a cat playing the saxophone and the message "ARTS"; a "helping schools" plate with a shiny apple sitting on a stack of books labeled "READING," "WRITING" and "ARITHMETIC"; or a Mothers Against Drunk Driving plate with a red diagonal slash cutting across icons for a cocktail glass and car keys.

Did Tennessee Slant the Debate?

The premise of the lawsuit is not that Tennesseans are being forced, Wooley-nilly, to carry the state's pro-life message. Rather, the plaintiffs invoke a different line of Supreme Court cases holding that when the state creates a forum for speech, it may not exclude particular messages.

The forum cases draw highly technical distinctions between various kinds of fora: traditional public fora like parks, streets and sidewalks; designated public fora; and non-public fora. Different doctrinal rules apply in these different settings, but regardless of what kind of forum is at issue, the government is forbidden from engaging in "viewpoint discrimination."

In other words, if the government allows one side of a debate to have its say, it has to give a fair opportunity to people with opposing viewpoints. In a press release about the lawsuit, Hedy Weinberg, Executive Director of the ACLU of Tennessee, explained that the new law violates this basic principle. She drew the following analogy: "If the state held a town-hall meeting tomorrow to discuss the posting of the Ten Commandments, it couldn't open the floor only to those supporting the religious displays."

Likewise with license plates. By offering "Choose Life" plates but not "Pro Choice" plates, the ACLU/PPFA lawsuit alleges, the state impermissibly slanted the debate.

The Lawsuit's Logical Conclusion: All Specialty Plates are Unconstitutional

There is a certain appeal to the plaintiffs' argument. Surely it seems disrespectful to pro-choice Tennesseeans for the state legislature to deny them the same opportunity to express their view on this divisive public issue that was given to pro-life Tennesseans. But disrespectful or unwise legislation is not necessarily unconstitutional legislation.

If Tennessee really cannot favor some viewpoints over others in designating specialty license plates, as the plaintiffs argue, then the Tennessee specialty license plate program itself would seem to be unconstitutional. After all, the state offers "Mothers Against Drunk Driving" plates but not "No-Good Uncles For Drunk Driving" plates. It offers plates bearing the phrase "Children First" and picturing a boy and girl holding balloons, but no plates that say "Children Last," "Middle-Aged People First," or "Me First."

Indeed, even the generic $21.50 plates contain an ideological message. Commemorating Tennesseans' long history of providing volunteers for military service in the War of 1812, the Mexican-American War and (according to some accounts) the Civil War, the generic plates include the phrase "Volunteer State." Yet pacifists and those who associate the state's moniker with its past sympathy for the Confederacy may well prefer to have their cars adorned with a contrary message, such as "State With Some People Who Think War, Or At Least The Confederate Side In The Civil War, Is Wrong, Thank You Very Much."

Such Tennesseans cannot express that message on their license plates and cannot even avoid carrying "Volunteer State" on their plates unless they shell out the extra $35 for specialty plates or, following the example of Maynard in Wooley v. Maynard, tape over the offending state motto.

Is Government-Funded Speech the Better Analogy?

To its credit, the ACLU/PPFA lawsuit owns up to the consequences of its argument. The suit seeks not only to bar the "Choose Life" license plates but the entire program of specialty plates. It thus has the virtue of consistency.

Consistency, however, is not enough. The basic problem is that license plates aren't best understood as a forum for the expression of views. They're government-issued official property. And while Wooley v. Maynard establishes that the government may not insist that a person carry the state's ideological message, the case stops short of prohibiting the state from facilitating the expression of some rather than other viewpoints. That's why the result in the case was that Mr. Maynard was allowed to tape over "Live Free or Die" on his license plate. If ACLU/PPFA view were correct, New Hampshire would have been prohibited from putting the state motto on anybody's plates.

State provision of specialty plates thus seems closer to government-funded speech than it does to purely private speech. The leading Supreme Court case on this subject is the 1998 decision in National Endowment for the Arts v. Finley. There the Court upheld federal legislation requiring the NEA to consider "general standards of decency and respect for the diverse beliefs and values of the American public" in awarding grants against a challenge by performance artist Karen Finley and others, who charged that the legislation authorized impermissible viewpoint discrimination. After construing the law to leave grant decisions largely to the artistic judgment of the NEA, the Court concluded that any distinctions drawn on the basis of viewpoint were permissible. "The Government has not discriminated on the basis of viewpoint," the Court said; "it has merely chosen to fund one activity to the exclusion of the other."

Government funding of the arts and other activities is not a perfect analogy to state provision of specialty plates. In the former context, the government may legitimately choose to promote its own message, while in the latter, its ostensible aim is to facilitate speech by individuals. Accordingly, it is possible that a court would side with the ACLU/PPFA argument that the Tennessee specialty plate program is unconstitutional.

That would be unfortunate, however. In controversies over the funding of the arts, political conservatives sometimes argue that the only solution is to get out of the business of funding art. In the current Tennessee litigation, political liberals are making the same point; they say that the only way for the state to be neutral is to get out of the business of stamping messages on license plates.

The argument is misguided whether pressed by conservatives or liberals. The fact that the state wishes to fund works of art that lift up the human spirit without also funding art that degrades should not be fatal to government funding of the arts. Likewise, the fact that Tennessee produces license plates that urge the public to "Preserve and Protect" Great Smoky Mountains National Park without also producing plates urging the destruction of this natural haven should not count as a violation of the First Amendment.


Michael C. Dorf is Professor of Law at Columbia University.

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