This week, Virginia’s House of Representatives approved the creation of specialty “Choose Life” license plates. The Iowa state Senate introduced a bill this week that would do the same. The ACLU has threatened to sue if the Virginia measure is signed into law, which will produce the ninth lawsuit over this issue in three years. Alabama, Florida, Hawaii, Louisiana, Mississippi, Oklahoma, and South Carolina already have “Choose Life” license plate programs, and 13 other states are considering enacting similar legislation. So, it’s probably safe to say that a “Choose Life” tidal wave—and its litigation backlash—is poised to hit the nation.
The legal issue isn’t complicated, and it helps to separate it from your feelings about abortion. It’s a free speech question: Can state governments endorse speech representing only one side of an issue as controversial as abortion? Has the state, by opening up license plates as a forum for private speech, incurred a constitutional obligation to allow speakers of every viewpoint equal access to that forum?
Most of the courts that have considered the issue have wussed out on the First Amendment question altogether, finding the plaintiffs in those cases lacked legal “standing” to file suit, since they had never endeavored to sponsor “Choose Abortion” or “Choose Choice” license plates themselves. Another court decided last month that the “Choose Life” plates in South Carolina were unconstitutional, in that the state was promoting only one side in the debate. Immediately, a South Carolina legislator introduced a “Choose Death” license plate, which he insists fairly expresses the other side in the debate. Newspapers recently noted that the “Choose Death” plate may still prove popular with death-penalty enthusiasts (and perhaps with hunters, werewolves, and NRA members as well). Less clear is whether it will satisfy the plaintiffs from Planned Parenthood.
License plates became a constitutional issue in 1977 when the Supreme Court decided Wooley v. Maynard, a case involving a family of Jehovah’s Witnesses who had taped over the “Live Free or Die” part of their New Hampshire license plate. The Maynards claimed that New Hampshire violated their free speech rights by forcing them to broadcast a political sentiment with which they disagreed. The high court ruled that states could not force individuals to be “mobile billboards” for messages they loathed. The “Choose Life” cases don’t involve this sort of compelled speech, however, since no one in any state is forced to purchase the specialty plates—people buy them voluntarily.
Specialty plates were virtually unheard-of in most states until 1987, when Florida issued a plate commemorating the space shuttle Challenger. That plate alone raised more than $30 million for space-related programs, and today Florida issues more than 50 specialty plates. Forty other states have specialty-plate programs, and for the most part they celebrate non-controversial organizations: sports teams, schools, veterans, NASCAR, or saving the whales, with the additional fees benefiting that cause. The “Choose Life” plates in Florida feature the words “Choose Life” in childlike crayon, along with a beaming boy and girl—presumably of the happily adopted variety—also rendered in the key of crayon. Most of states with “Choose Life” programs provide, as does Florida, that the proceeds of these sales go exclusively to organizations that counsel women with unwanted pregnancies to choose adoption. In fact, the legislation in most states expressly provides that any program offering referrals or even discussing the option of abortion is barred from funding.
When the first “Choose Life” legislation passed in Florida in 1998, then-Gov. Lawton Chiles vetoed it, stating that license plates were not necessarily the best forum for exploring the complex nuances of the abortion debate. But Gov. Jeb Bush signed the bill when he was elected in 1999, and the Louisiana legislature adopted similar legislation shortly thereafter. South Carolina followed in 2001. All have resulted in lawsuits, with the first two states’ suits going to the Choose Lifers and the third going to the plaintiffs. So far.
In Florida, the courts have usually dismissed the suits, insisting that the plaintiffs (usually women’s or pro choice organizations) didn’t have “standing” to sue because they had never themselves attempted to get the opposite viewpoint onto any license plates. The Louisiana lawsuit went to the plaintiffs initially, because the district court felt that the plates discriminated in favor of just one viewpoint. This resulted in an injunction that was dissolved last March by the 5th Circuit court of appeals, who found that, as was the case in Florida, the plaintiffs had no standing to sue in the first place. The U.S. Supreme Court declined to hear that case this year.
One court that’s really wrestled with the free speech issue was a federal district court in South Carolina, which last month found the “Choose Life” plates to be unconstitutional since they endorse only one side in the abortion debate. The state has appealed this ruling, and another Florida suit was revived last week, this time on the grounds that the plates impermissibly entangle church and state.
To understand the free speech issue, it’s important to clarify whether specialty license plates represent government speech or private citizens’ speech. Why? Because there is no question that the government may speak in a partisan manner without violating the Constitution. The First Amendment applies only to government efforts to restrict private speech; it doesn’t apply back to the state itself. This is why the state is perfectly free to tell you to stay in school, or drive sober, without having to broadcast the opposing viewpoint. States may have preferences for all sorts of messages. But if, on the other hand, the government opens a forum for private speakers—if it creates a park or builds a street where you and I are free to talk—it cannot be in the business of censoring some viewpoints while permitting others. This is the core of the First Amendment. So, the legal test for the courts is simply this: When the state gives license plates to certain private organizations to broadcast their messages, is it more like the state is talking (akin to a public service announcement) or more like it’s allowing private citizen to talk (like they would in a public square)? The former is constitutional, but the latter may well be censorship.
Different states have tended to take different positions on this issue, depending on the lawsuit. In the Louisiana suit, for instance, the state admitted candidly that the message of the plate is explicitly anti-abortion, but that this was valid government speech as it reflected the state’s own preferences. Louisiana lawmakers had no problem admitting that the state legislature abhors abortion and likes adoption. This is hardly news if you look at Louisiana’s “Choose Life” plate, which features the brown pelican—the state bird—holding a baby wrapped in a blanket in its beak. Other states have gone to the other extreme, arguing that the government is in no way endorsing or even involved in the message on the plates—it’s a private commercial decision between a driver and an organization she supports—like a bumper sticker, according to one lawmaker. The truth is somewhere between the extremes. Of course the state is abetting this speech—its name is prominently displayed on the tag—but individuals also choose and display the tags freely. So, the truth is that the state is opening up some kind of forum, which means the state can’t discriminate based on viewpoint.
Here’s where the other strange state response comes in: Some argue that yes, they have opened up something like a public forum but that the messages they promote are not controversial, or have no opposing side. There can be no viewpoint discrimination, they contend, because who, they argue, is against the space shuttle? Who wants to take a stand against the Everglades? And who could possibly be against adoption? And throughout these cases, the states have insisted that the plates, while backed by pro-life groups and trumpeting the famous pro-life slogan, actually have nothing to do with abortion: They are simply “pro-adoption.” In fact, when Jeb Bush signed the Florida plates into law he insisted: “It’s a pretty tag and it says ‘Choose Life’ and it’s for adoption. If people want to politicize that, they’ll politicize anything.” This would be a more credible argument if the same legislators weren’t withholding money from organizations that discuss abortion.
Ironically, the states simultaneously advance precisely the opposite argument as well: insisting that all specialty plates are by definition “political”; advocating environmentalism and the saving of endangered animals as they do. The “Choose Life” message, they argue, is no more “political” than these others. Richard H. Black, the Virginia delegate who introduced the bill there, says if the law is now that we must always sponsor opposing messages, the state needs to produce a “Virginia Is for Haters” plate to counter its “Virginia Is for Lovers” tags.
Here’s the fundamental problem with all these arguments: Whether or not the tags are “controversial” or even “political” or “opposable” is irrelevant for First Amendment purposes, when the legislature is breezily permitting some to be created and others to be denied. The relevant question is whether state legislatures are taking it upon themselves to decide what “political” or “controversial” mean in the first place, and what standards they use to do so, because in doing so, they are by definition discriminating based on viewpoint. While different states have different mechanisms for approving the programs, most involve some advocacy group proving to the legislature that there is sufficient demand for the plates to generate income. That means that if an organization can get enough signatures pledging to buy the plates, the legislature will consider it. Which in turn means that only popular viewpoints can pass the initial threshold. And if Maynard taught us anything, it was that “the First Amendment protects the right of individuals to hold a point of view different from the majority.” Permission to speak shouldn’t be doled out by the state based on the popularity of the idea.
But that isn’t the end of the unbridled discretion. Because once a bill is in the hands of the legislature, it seems to be a sort of political free-for-all as to whether they wish to approve or disapprove of any group’s message. Arkansas refused to give the Knights of Columbus a specialty plate, for fear that the KKK would want one, too. The California legislature went berserk over whether the Boy Scouts should get plates, because some felt the group was discriminatory. So, state discretion doesn’t stop with the promotion of only popular ideas. It becomes even more blatant as lawmakers decide whether they approve of the ideas, and apparently, they make these decisions without standards or rules either.
It’s not at all clear how the “Choose Life” lawsuits will shake out. But it seems obvious that if a “Choose Life” tag is constitutional in Virginia, a “Honk If You Love al-Qaida” plate should be constitutional in New Hampshire, as well. Which would probably give a whole new meaning to “Live Free or Die.”