It used to be a license plate was a license plate. But in 1987, the State of Florida started offering a special plate to commemorate the Space Shuttle Challenger. That idea took off and today drivers around the country can, for a few extra bucks, choose plates celebrating hundreds of organizations and pet causes. Tennessee has nearly 100 plate options, representing everything from college fraternities to Vietnam veterans, to amateur radio enthusiasts. And, thanks to a ruling last week by the 6th U.S. Circuit Court of Appeals, Tennesseans are about to have one more choice. It features the phrase, "Choose Life." Abortion rights supporters had challenged the plate, accusing the government of discriminating against opposing viewpoints. But the court said that because the message amounted to "government speech," it passed constitutional muster. Joining me now is David Hudson, an attorney with the First Amendment Center in Nashville. David, welcome to the show.
DAVID HUDSON: Thank you. Thanks for having me.
BOB GARFIELD: First of all, "government speech" - that is a formulation I had not heard before. Tell me what it means.
DAVID HUDSON: Government speech essentially means that the government itself has its own first amendment rights and that the government can promote certain messages, such as "Stop Smoking," or "Don't Drive Drunk," or, in this case, "Choose Life."
BOB GARFIELD: But, as I understand it, this is the first time an appeals court has agreed with the government speech defense in one of these license plate cases.
DAVID HUDSON: Right. This decision by the 6th Circuit directly conflicts with the 4th Circuit's decision from a couple years ago, in which the 4th Circuit held that when a state does issue a specialty license plate "Choose Life," that the government is not totally promoting its own message, but also facilitating private speakers to speak their message.
BOB GARFIELD: Let me see if I've got this right. If the speech is deemed primarily private, then it would be unconstitutional to discriminate against one viewpoint over another. But if it's held to be government speech, then it gets a free pass.
DAVID HUDSON: That is the primary and chief legal distinction - is this government speech or is this private speech?
BOB GARFIELD: Now, to me the confounding thing about that majority opinion, if you buy the principle of government speech to begin with, is that the sponsor of this “Choose Life” message in the Tennessee case was a local anti-abortion group. And not only was it the sponsor of the message, it actually received a cut of the proceeds from Tennesseans who ordered the plate. And, furthermore, this was the group that actually appealed a lower court decision that found against the “Choose Life” message. So it seems like kind of a stretch just on the facts.
DAVID HUDSON: Well, you've made a compelling argument that it's not truly government speech. The one caveat to that is our new Chief Justice, John G. Roberts, Jr., has in the past, been a strong advocate of the government speech doctrine. So if it does go up eventually for Supreme Court review, I think Chief Justice Roberts might very well view this as government speech.
BOB GARFIELD: Let's say the high court does take the case, but rules in favor of the 4th Circuit's private speech interpretation. That would render this kind of message unconstitutional, unless states agree to print special plates for all viewpoints. Could there be a free for all brewing here?
DAVID HUDSON: Those who support the government speech doctrine will make that argument, that if it truly becomes a designated public forum, in which the state opens up government property for the expression of private views, then the government generally can't discriminate based on viewpoint. The state would have to allow almost any message. And that, in a sense, gives the government speech [LAUGHS] argument some force here because many people don't want to see a free for all.
BOB GARFIELD: Now, all of these plates begin life in the respective state legislature. So it's not as though I have a point of view that I want to express, whether about abortion or anything else, and I just go to the DMV and say I want a special plate on this. Someone has to introduce legislation in the state legislature, and it has to pass, and then the plates start getting printed up.
DAVID HUDSON: That's generally how it works. In fact, the legislature considered both “Choose Life” and “Pro Choice” and decided to go with the “Choose Life.” If you apply the government speech doctrine, then the government can pick and choose.
BOB GARFIELD: There is one case in which the Supreme Court has weighed in on a license plate issue, not a special plate, actually, a standard issue plate by the State of New Hampshire that said “Live Free or Die.” Tell me the particulars there.
DAVID HUDSON: George Maynard believed, for religious reasons, that “Live Free or Die” was against his personal beliefs. And he continued to cover up the motto and continued to receive citations [LAUGHS] for it. The case eventually reached the United States Supreme Court, and the U.S. Supreme Court ruled in Wooley vs. Maynard that the state could not compel George Maynard to agree with a principle that he personally disagreed with.
BOB GARFIELD: Which would appear to be a big fat juicy Supreme Court precedent but, in fact, I guess these special plates are in no way compelled because - [OVERTALK]
DAVID HUDSON: Right.
BOB GARFIELD: --people actually order them. They volunteer to have them.
DAVID HUDSON: Absolutely. That was another interesting aspect of Judge Roger's decision in the 6th Circuit, is he cited Wooley in support of his position, which [PAUSE] is interesting.
BOB GARFIELD: [LAUGHS] You seem to suggest--a judicial non sequitur, is that what you're saying?
DAVID HUDSON: I think that you could come to another conclusion.
BOB GARFIELD: [LAUGHING] Right. Well, your diplomacy is appreciated. David, thank you so much.
DAVID HUDSON: Thank you.
BOB GARFIELD: David Hudson is an attorney with the First Amendment Center in Nashville.