Free Speech? Put a Plate on It


ACRU Staff


December 5, 2011

This column by ACRU Senior Fellow Robert Knight was published December 5, 2011 in The Washington Times.

The American Civil Liberties Union (ACLU) has managed to block North Carolina from issuing license plates with a “Choose Life” message because the state legislature declined to also issue “Choose Death” plates.

U.S. District Judge James Fox didn’t put it that way in his Nov. 28 injunction, but he did agree with the ACLU that the absence of an opposing plate violates the First Amendment. The problem arose because lawmakers refused to authorize the “Respect Choice” plate that Planned Parenthood wanted as part of its ongoing culture of death.

The ruling prompts the question of whether every expression allowed on a license plate must be accompanied by a contrary view, sort of a Fairness Doctrine for motorists.

North Carolina offers an “In God We Trust” plate. Can’t you see the state ACLU director coming unglued while stuck in traffic behind that? The lawsuit practically writes itself, with blather about “separation of church and state” and a lack of respect shown for Satan.

In Virginia, the Department of Motor Vehicles (DMV) offers an AFL-CIO plate with the slogan “Union Labor,” but drivers can’t purchase a plate for “National Right to Work” whose headquarters are visible from the Beltway in Northern Virginia. Maybe the Right to Work folks just have not gotten around to applying for theirs.

Virginians who like to ride bikes can purchase a “Bicycle Enthusiasts” version that says “Share the Road,” but there isn’t one for pedestrians. There’s a “Tobacco Heritage” plate but none for the American Lung Association. There is a “Ducks Unlimited” plate without a counterpart saying “Too Many Ducks.” There’s even one for “Pearl Harbor Survivor” but no plate for “Japanese Kamikaze Survivor,” admittedly a small market. But what an outrage.

Other states can be just as arbitrary as the Old Dominion, as People for the Ethical Treatment of Animals (PETA) employee Whitney Calk found out after leaving Virginia for Tennessee in September. DMV officials in the Volunteer State rejected her plate application for some lettering (ILVTOFU) that she insisted was about loving the soy product tofu but officials said could be read another way by dirty-minded motorists. The same thing happened to a Colorado woman in 2009.

It’s true that states have to rein in vanity buyers if they cross the line of decency, such as using letters or even numbers to spell out profanities. There are gray areas. Back in January, a Virginia prankster changed the meaning of the Family/Children Fund’s “Kids First” plates by having his spell out EAT THE. When apprised of this, officials yanked his plates.

The thwarted joker’s scheme is not to be confused with the “Kids Eat Free” plates Virginia allows for a group whose motto is “Feeding the Physical, Spiritual and Intellectual Needs of Kids.” I guess that’s OK, although the Occupy Wall Street people would go way beyond that and make it “EVERYONE Eats Free!” They also might want to augment Virginia’s “Credit Union” plates with ones proclaiming: “Bankers Are Evil.”

Lawsuits over license plates might seem to be just nuisances, but they do involve serious free-speech issues and can be expensive for taxpayers.

In 2004, a ruling by the 4th U.S. Circuit Court of Appeals against South Carolina’s “Choose Life” plates resulted in the state having to pay Planned Parenthood’s legal bill of $157,810 after the U.S. Supreme Court declined to hear the case.

Tennessee also found itself in court over “Choose Life” plates in 2004 in ACLU of Tennessee v. Bredesen. In 2006, the 6th U.S Circuit Court of Appeals overturned a district court ruling against the state, saying, “Government can express public policy views by enlisting private volunteers to disseminate its message, and there is no principle under which the First Amendment can be read to prohibit government from doing so because the views are particularly controversial or politically divisive.”

The court pointed out that nobody is forced to buy the “Choose Life” plates, unlike, say, New Hampshire’s “Live Free or Die” plates, which all Granite State vehicles must bear. In 1977 in Wooley v. Maynard, the U.S. Supreme Court said New Hampshire drivers could cover up the state motto if they disagreed with it, but the state had a right to put it on the plates. Accordingly, in Bredesen, the 6th Circuit said, ” ‘Choose Life’ is Tennessee’s public message, just as ‘Live Free or Die’ communicated New Hampshire’s individualist values and state pride.”

The Tennessee plate has a beautiful, laughing baby on it despite home state environmental champion Al Gore’s implicit message that each new child is a threat to the planet.

Up in Montana, drivers can purchase the state Right to Life’s “Choose Life” or Planned Parenthood of Montana’s “Pro-Family, Pro-Choice,” which makes about as much sense as “Pro-Health, Pro-Measles.”

The current controversy is likely to continue for years, as courts have been all over the map, with some ruling that message plates constitute a “public forum,” and others disagreeing.

Twenty-nine states have “Choose Life” plates or have authorized them, according to the Winston-Salem Journal, which doesn’t provide a list of how many states offer “Abort Your Baby” plates, which is probably none.

Seems like an injustice just waiting for an ACLU lawyer to help rectify.



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