By David L. Hudson Jr., First Amendment Scholar, and Andrew Gargano, First Amendment Center Intern
Last Updated: January, 17 2018
Increasingly, license plates have become a prominent forum where private individuals and organizations clash with government officials over the regulation of offensive speech.
License plates first made headlines more than 40 years ago, when George and Maxine Maynard covered up the New Hampshire state motto “Live Free or Die” on their plate. The case made it to the U.S. Supreme Court where the Maynards prevailed.
Writing for the Court in Wooley v. Maynard, Chief Justice Warren Burger said that “we are faced with a state measure which forces an individual, as part of his daily life — indeed constantly while his automobile is in public view — to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.” The case stands for the principle that the state cannot compel an individual to subscribe to a particular ideology.
Recently, license plates have re-emerged at the center of several First Amendment debates. As professor Leslie Gielow Jacobs writes in the Florida Law Review article “Free Speech and the Limits of Legislative Discretion: The Example of Specialty License Plates,” “license plates have again become the source of a free speech controversy.”
The current debate occurs over “vanity” and “specialty” license plates. Many states allow individuals to select their own vanity plate, on which they can express their individual messages. Many also allow different organizations to petition for specialty plates to raise money for and to publicize their message.
Many people like to express themselves through license plates and bumper stickers on their vehicles. Oftentimes, these vanity plates and stickers run afoul of government officials who act as the arbiters of good taste. The question becomes whether government officials can restrict certain vanity plates because of their offensiveness.
Specialty-plate controversies occur either when the government refuses to issue a plate for a certain organization or when outside individuals challenge the government’s funding of a particular license plate. The two most common specialty license plate disputes have involved anti-abortion messages and the Confederate flag.
Vanity plates that have been denied in various states include the seemingly innocuous, or at least not terribly offensive, “FROG,” “IRISH,” “VINO,” “3MTA3,” “GODCAN,” “HATEGM” and “GVT SUX.” Even the word “COVFEFE” was recently added to a Georgia list of prohibited words on vanity plates.
The courts have reached maddeningly inconsistent results with respect to vanity plates.
In 2001, the 8th U.S. Circuit Court of Appeals ruled in Lewis v. Wilson that Missouri officials violated the First Amendment rights of a motorist by denying her request for the license plate “ARYAN-1.” The court wrote that the “DOV may not censor a license plate because its message might make people angry.”
However, in the same year, the 2nd Circuit ruled in Perry v. McDonald that Vermont officials could deny a request for a vanity plate bearing the letters “SHTHPNS.” The state had a policy that prohibited the issuance of vanity plates containing offensive, scatological terms. The appeals panel determined that license plates are a nonpublic forum in which government officials can regulate speech as long as their restrictions are reasonable and do not discriminate based on viewpoint.
The panel determined that the regulation of “SHTHPNS” is not viewpoint discriminatory because the restriction merely prohibits the person’s use of the word “shit.” The court explained:
It is apparent that Vermont’s policy does not oppose Perry’s philosophical views as reflected in the vanity plate. Vermont’s policy prohibits Perry’s vanity plate not because it stands for ‘Shit happens (so don’t let life’s problems drive you to drink),’ but because Perry chose to express that viewpoint using a combination of letters that stands in part for the word ‘shit.’ This restriction does not discriminate on the basis of viewpoint.
Professor Marybeth Herald, in her Colorado Law Review article “Licensed to Speak: The Case of Vanity Plates,” writes: “State agencies have relied upon the Dictionary of Contemporary Slang, sociologists, clerks, a word committee, secret committees, the Tax Commission, and linguists.” She argues that judges must not allow government officials to regulate offensive vanity plates because offensiveness is in the eye of the beholder and is an almost limitless concept.
“The First Amendment is an insurance policy against government repression,” Herald writes. “We pay for it all the time — in large and small ways — by tolerating the racist, the pornographer, and the generally offensive speaker. … So if someone wants a plate that says ‘GOVTSUX,’ let her have it. Who knows, it might even have been a popular plate among a few of the signers of the Declaration of Independence.”
While many states continue to regulate vanity plates for offensiveness – the Court of Appeals of Maryland in 2016 upheld a state ban on licenses plate profanity – some states have begun to loosen up their laws. Maine recently reformed its license plate restrictions to allow plates that were previously too profane or offensive.
Circuit split on specialty plates
The other major First Amendment issue with regard to license plates concerns specialty plates. The two most common areas of controversy concern anti-abortion plates, often called “Choose Life” plates, and those bearing the Confederate flag.
Under these programs, organizations petition a state legislature to enact a law authorizing the creation of specialty plates for their organization. The state of Florida, for example, has authorized at least 38 specialty license plates. In 1999, an organization known as Choose Life petitioned the state for the creation of Choose Life plates. The state passed the legislation, enabling individuals to purchase Choose Life plates for $20 more than the cost of regular plates.
In January 2002, several individuals and the Women’s Emergency Network sued in federal court, contending that the Florida Choose Life law violates the First Amendment by creating a forum for the anti-abortion viewpoint without including a forum for the abortion-rights viewpoint.
In Women’s Emergency Network v. Bush, a three-judge panel of the 11th Circuit ruled that the abortion-rights plaintiffs did not have standing to challenge the Choose Life statute. “The First Amendment protects the right to speak; it does not give Appellants the right to stop others with opposing viewpoints from speaking,” the court wrote. The abortion-rights plaintiffs have filed a petition for full panel review before the 11th Circuit.
“The court properly ruled that the plaintiffs did not have standing,” says attorney Carol A. Licko, who represented the state defendants. “The plaintiffs could have filed for their own plates, but they can’t challenge someone else’s plates. This implicates a very important First Amendment issue for those who own the plates and those who sponsored the plates.”
However, a federal district court in South Carolina reached the opposite conclusion in 2002 in Planned Parenthood v. Rose. The court determined that Planned Parenthood had standing to challenge a state law authorizing the issuance of Choose Life plates. Then the court proceeded to the First Amendment merits, determining that “the statute at issue here is a clear manifestation of viewpoint discrimination.” The court added that “‘Choose Life’ is preferred over whatever motto or slogan the plaintiffs might employ to promote their point of view.”
The 4th Circuit affirmed that decision in 2004. In its opinion, the 4th Circuit determined that the state committed viewpoint discrimination by favoring the “Choose Life” message and excluding the pro-choice message. “Discrimination can occur if the regulation promotes one viewpoint above others, and this is precisely what happened here,” the court wrote.
In 2014, the 4th Circuit ruled similarly in regard to North Carolina’s specialty “Choose Life” license plate. In American Civil Liberties Union v. Tata, the court found that North Carolina’s refusal to offer a pro-choice specialty plate implicated private speech rights and constituted unconstitutional viewpoint discrimination.
However, the federal appeals courts have remained split on this question. A divided three-judge panel of the 6th U.S. Circuit Court of Appeals ruled in American Civil Liberties Union of Tennessee v. Bredesen that the state of Tennessee could issue “Choose Life” license plates on the strength of the government-speech doctrine.
“So long as Tennessee sets the overall message and approves its details, the message must be attributed to Tennessee for First Amendment purposes,” the panel majority wrote. “’Choose Life’ is Tennessee’s public message, just as ‘Live Free or Die’ communicated New Hampshire’s individualist values and state pride.”
The 6th Circuit majority recognized that its decision conflicted with the 4th Circuit, but said that “following the Fourth Circuit’s lead in this case would invalidate wide swaths of previously accepted exercises of government speech.”
Another line of cases involving specialty license plates concerns the Confederate flag. In 1999, the state of Virginia had approved a specialty license plate for the Sons of Confederate Veterans. However, the statute barred the group from displaying any “logo or emblem of any description.” This provision was designed to prevent display of the Confederate flag — a symbol many consider to be racially divisive.
The 4th Circuit ruled in Sons of Confederate Veterans, Inc. v. Commissioner of the Virginia Dept. of Motor Vehicles that the logo ban for the Sons of Confederate Veterans was viewpoint discriminatory because “the logo restriction not only prohibits speech on the basis of its content … but also, by its terms, burdens the speech of only a single speaker in the forum.” The court noted that no other specialty plate provision in the state contained a similar logo ban.
The Supreme Court weighs in on the ‘government speech’ issue
Government officials in license plate cases repeatedly try to advance the so-called “government-speech defense.” They claim that because specialty and vanity plates are a form of government speech, traditional First Amendment principles do not apply. The government-speech doctrine holds that the government can speak for itself and propound certain viewpoints when it is advancing its own speech.
For example, in the 1991 decision Rust v. Sullivan, a narrow majority of the U.S. Supreme Court ruled that the government had the authority to select and fund its own speech in order to convey its message. In that case, the high court ruled that the government could prohibit doctors from providing counseling about abortion when treating the patients in a federally funded program.
Many courts and legal commentators have questioned whether messages on license plates constitute government speech. The issue may perhaps be easier in the case of vanity plates because those plates clearly reflect the individual preferences of car owners. “The vanity plates convey the car owner’s message; that is why the program is popular and makes money for the government,” wrote professor Herald.
The government-speech argument fares better in the context of specialty plates, as the government involvement there appears stronger. In fact, the Supreme Court finally weighed in on the issue in the 2015 case Walker v. Texas Division, Sons of Confederate Veterans, Inc. with a 5-4 decision.
The case involved a challenge to the Texas state Department of Motor Vehicles Board, which had rejected a proposed specialty plate because it included a Confederate flag that the board believed would be viewed as offensive.
In its analysis, the Court looked to three factors. First, it reviewed the history of license plates and determined that states have historically used license plates to convey messages to the public. Second, it applied a reasonable observer test and concluded that the public identifies license plate designs with the state that issues them. And third, the Court weighed in the fact that Texas exercised final approval over the content of license plates.
Ultimately, the Court ruled that specialty license plates, much like park monuments, convey government messages and thus are a form of government speech. As a result, the state has the power to control messages that appear on speciality plates.
In the wake of Walker, lower courts have begun to reverse their prior decisions on specialty license plate designs. In 2015, the 4th Circuit in Berger v. American Civil Liberties Union of North Carolina reversed its Tata decision. And in 2016, it reversed its 2013 decision American Civil Liberties Union of North Carolina v. Tennyson, in which it had issued a permanent injunction against North Carolina’s “Choose Life” plate program.
The public-forum quagmire
Another intriguing legal question surrounding license plates concerns the applicability of the public-forum doctrine. The public-forum doctrine applies many times in First Amendment jurisprudence when the government imposes speech restrictions on government property.
Government officials argue that license plates are government property and are nonpublic forums. Under the public-forum doctrine, government officials have less authority to restrict speech in places that by tradition have been open for free expression. Such an area is called a public forum. In its 1983 decision Perry Education Ass’n v. Perry Local Educators Ass’n, the U.S. Supreme Court wrote: “In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed.”
There are two other types of forums under the public-forum doctrine: the limited, or designated, public forum and the nonpublic forum. In a limited public forum, the government designates a certain forum for expressive purposes. When the government opens up a forum, it is generally subject to the same free-speech standards as a traditional public forum. This means that restrictions on speech are subject to the highest form of judicial review, known as strict scrutiny. However, the Supreme Court has indicated that in creating a limited public forum, the government can restrict access to certain speakers and topics. (See Leslie Gielow Jacobs, “The Public Sensibilities Forum,” 95 Nw. U. L. Rev. 1357, 1370 (2001)).
In a nonpublic forum, the government’s regulations on speech do not have to meet strict scrutiny. Rather, they must be reasonable and viewpoint neutral.
“The public-forum question is probably one of the most fascinating First Amendment issues regarding license plates,” says Licko, the attorney representing the state in the Florida Choose Life case.
Whatever label a license plate receives — be it public forum, limited public forum or nonpublic forum — government officials cannot commit viewpoint discrimination. Some courts have decided not to provide a definitive answer on the forum question but have simply ruled that the restriction on license plates was viewpoint discriminatory. For example, in the Sons of Confederate Veterans case, the 4th Circuit ruled that it need not address the public-forum question because the Confederate flag logo ban was viewpoint discriminatory and viewpoint discrimination is prohibited in any type of forum.
Other circuits have waded into the issue in regard to states rejecting proposed anti-abortion license plate designs. In the 2008 case Choose Life Illinois, Inc. v. White, the 7th Circuit found that while license plate messages are more like private speech, license plates are nonpublic forums and therefore subject to government restrictions. Thus, it held that rejecting a “Choose Life” license plate was a permissible content-based, viewpoint-neutral restriction. The 2nd Circuit ruled similarly in early 2015 in Children First Foundation, Inc. v. Fiala.
And in Walker, the Supreme Court found the Texas specialty license plate scheme to be a nonpublic forum. However, three justices joined Justice Alito’s dissent that argued specialty license plate programs created a limited public forum.
Religious messages on license plates
While most of the legal challenges to license plate regulations deal with the free speech component of the First Amendment, license plates also pose other issues, namely with respect to the Establishment Clause.
To date, at least 19 states have authorized a form of license plate bearing the words “In God We Trust.” Constitutional law scholar Charles “Rocky” Rhodes, a professor at South Texas College of Law, recently told Houston Public Media that such license plates are generally acceptable speech. “Generic references to God that are part of our traditions of government, like ‘God Bless America’ or other invocations, which are not specific towards a sectarian belief system, have been upheld by the Supreme Court as not constituting an establishment of religion.”
But at least one state has tried to go beyond the optional God-themed license plate. Last spring, lawmakers in Tennessee considered legislation that would have required all of the state’s license plates to bear the words “In God We Trust.” However, the state attorney general’s office stated that such a bill was constitutionally suspect.
The Supreme Court’s decision in Walker seems to have ended much of the First Amendment controversy surrounding license plates. However, the disputes over Choose Life and Confederate flag specialty plates involve two of the most politically divisive topics in contemporary American society. For that reason alone, advocacy groups such as Planned Parenthood and the Sons of Confederate Veterans are not likely to quit fighting for these issues.
Furthermore, the popularity of vanity plates ensures that some committed individuals will fight for their right to display their particular message on their plate.
As new justices are appointed to the Supreme Court, it is possible that a shift in the recently established case law around license plates may occur.