"CHOOSE LIFE" is displayed in bright red letters across the bottom of a new license plate, with a pair of two smiling children's faces on the left-hand side. Last week, the Virginia House of Delegates approved the creation of a new specialty plate that would be available from the Department of Motor Vehicles. This move by the Assembly of this Commonwealth -- and others like it in Alabama, Florida, Hawaii, Iowa, Louisiana, Mississippi, Oklahoma and South Carolina -- brings up a number of interesting questions regarding the constitutionality of such a move. While they all sidestep the complicated issue of abortion, they are no less difficult to untangle. The Commonwealth needs to check itself when it comes to the promotion of controversial viewpoints. Proliferating plates that act as forums for controversial viewpoints may or may not be legal, but as long as the General Assembly works to restrict that forum to the majority view of that body, our civil liberties are being maligned.
The issue is best reduced to a question of First Amendment rights to freedom of speech and expression: In short, can state governments endorse speech representing only one side of an issue as controversial as abortion? Or, has the Commonwealth, 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. The answer is "no" for the former and "yes" for the latter, but the nuances of the First Amendment demand that issue be unpacked further so that a stronger case may be made.
First, the issue of controversial state license plates has been brought before the courts in the past. However, the courts have most often found that the plaintiff lacked standing to bring the case forward because they had never sponsored a "Choose Choice" plate themselves. In South Carolina, the court found "Choose Life" plates unconstitutional because the plates only promoted one side of the debate. A legislator then proposed a bill for a "Choose Death" plate to illustrate the point. The most devout NRA members in South Carolina might have appreciated the measure, but the plaintiffs from Planned Parenthood were no doubt less impressed.
The closest the Supreme Court has come to settling the issue is Wooley v. Maynard. The Maynards, a family of Jehovah's Witnesses, had taped over the "Live Free or Die" part of their New Hampshire license plate in claiming that the state violated their first amendment rights by forcing them to broadcast a political statement with which they disagreed. The court ruled that states could not force individuals to be "mobile billboards" for messages with which they disagreed. However, the "Choose Life" plates are different because they are bought voluntarily. Unfortunately, the court does not offer a great deal of assistance in deciding the constitutionality of Virginia's new plate.
To understand the free speech issue, it is important to clarify whether specialty license plates represent government speech or private citizens' speech. A common misconception is that the government is forbidden from speaking in a partisan manner without violating the constitution. However, the First Amendment really applies only to government efforts to restrict private speech, not the speech of the state itself. Virginia can tell you not to drink and drive without offering the opposite perspective.
The legal test is rather whether the government creates a forum for private speakers while censoring some viewpoints and allowing others. When the state gives license plates to certain private groups to promote messages or raise financial support, the state is really allowing a private citizen to talk. Due to the conservative composition of the General Assembly, it is unlikely that a "Choose Choice" plate would be enacted. This discrimination in effect censors the public forum and violates the First Amendment of the Constitution.
Once a bill to create a license plate is in the hands of the legislature, it seems to be a political free-for-all as to whether the Assembly itself approves or disapproves of any group's message. There must be a better system of reviewing the petitions for specialty plates -- one that does not invoke an ideological litmus test on the part of the legislators.
The Commonwealth is not directly sponsoring the controversial plates, despite the fact that its name is prominently displayed on the top of this official piece of government identification. Instead, the plates are like small alloyed-metal bumper stickers that may be purchased from the DMV. Individuals choose to display the tags freely. However, the state cannot actively or passively -- i.e. by not simultaneously sponsoring a tag for the opposite point of view -- discriminate based on viewpoint.
The "Choose Life" tags, like the Sons of the Confederate Veterans plates passed last year, bring up an interesting constitutional question invoking the freedom of speech and expression. The Commonwealth should not be in the business of regulating what groups can and cannot advocate their interests on the backs of automobiles throughout the Commonwealth. Following the traffic referenda defeat of last November, Virginians are certainly going to spend plenty of time staring at the plate in front of them.
(Preston Lloyd's column appears Thursdays in the Cavalier Daily. He can be reached at plloyd@cavalierdaily.com.)
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