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supporters of the state motto, or some combination of the two, because Mr.
Maynard managed to accumulate three license-plate violations in a few months’
time; and the judge sent him to jail for 15 days as a result. Now, remember, all
Mr. Maynard did was obscure the “Live Free or Die” slogan with tape; the license
plate’s numbers were completely visible.
Obviously exasperated, Mr. Maynard brought a federal lawsuit, challenging
New Hampshire’s law that could send him to the hoosegow for putting adhesive
tape over the “Live Free or Die” motto on his license plate. The case went to the
Supreme Court of the United States, and Mr. Maynard won. Wooley v. Maynard,
430 U.S. 705, 717, n. 15, 715, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). Observing that a
vehicle “is readily associated with its operator” and that drivers displaying license
plates “use their private property as a ‘mobile billboard’ for the State’s ideological
message,” the Court found that New Hampshire could not compel that speech.
The First Amendment, you see, not only supports freedom to speak; it also
supports freedom to shut up.
After numbers-only plates, soon followed by adding state mottos, the third
iteration of license-plate art was vanity plates. And a good example of the
controversy arising from those is a case in which the author was lead counsel.
Mr. Jay (I will call him), a delightful fellow living in Northern Nevada, wanted
to acquire the Nevada personalized license plate, “GO PALIN” for his car. After
spending thousands upon thousands of dollars in attorney’s fees fighting the DMV,
he finally won. However, with other elections coming and Sarah Palin falling out
of favor, Mr. Jay figured that he might want a new license plate for his candidate
of choice in the next election; and he was not about to spend many thousands
of dollars going through an administrative fight that might frustrate his license-
plate effort until after the election was over. So, he decided to challenge Nevada’s
offending regulation to the extent that it prohibited license plates that favored
any political party or candidate. Mr. Jay, you see, is one of the most tenacious
individuals one could ever meet.
The odd thing about this is, the author of this column is no fan of a great
number of the doctrines advanced by Ms. Palin. Moreover, Mr. Jay never has had
anything to do with the adult entertainment industry; and doesn’t necessarily
think much of it. As it turned out, the only two interests that Mr. Jay and his
attorney (the author) had in common were golf and an intense belief in the
constitutional right of free speech. It was one of those “I’ll defend to the death
your right to say it” type of things—well, maybe only to the Ninth Circuit. (Credit
the quote to François-Marie Arouet, alias Voltaire, 1694-1778.)
Mr. Jay’s lawsuit challenged Nevada’s DMV regulation prohibiting personalized
license plates that favored any political party or candidate. With no success at
the trial court level, the team appealed to the United States Court of Appeals for
the Ninth Circuit, the appellate court one level below the Supreme Court that is
responsible for federal appeals from the Western states.
The DMV, however, could see the writing on the wall. Shortly after the lawsuit
was filed, the DMV started in motion an effort to repeal the offending regulation,
a process that takes a long time. So the race was on. If the DMV could repeal the
regulation before the Ninth Circuit struck it down, the DMV could claim that
the case was moot; if the Ninth Circuit would strike down the regulation before
the DMV could finish the process of amending it, then Mr. Jay could argue for
attorney’s fees. Either way, the regulation would be gone.
The Ninth Circuit is horribly overwhelmed; so the DMV won the race. But
Mr. Jay now can get the license plates that he wants, probably supporting
candidates that the author doesn’t like. For sure, though, some Nevadan will have
“HILLARY” plates to balance things off.
The fourth iteration of license-plate art is organizational symbols. For example,
you need not drive far in Southern California without seeing a “UCLA” or “USC”
plate. Nevada has dozens of them, ranging from UNLV to Veterans of various
of the armed services to the “Welcome to Las Vegas” sign, commemorating Sin
City’s 100th anniversary (for some ten years now) to many other varieties. These
are graphical; for example, the UNLV one has the little mustached Rebel mascot.
Those are the types of license plates that gave rise to the Supreme Court’ most
recent free-speech case.
Texas offers some 350 varieties of so-called specialty license plates like the
above Nevada and California examples. If some Texas group wants a specialty
license plate representing it, there is a mechanism for applying to the DMV; and,
upon approval, the applied-for license design will commence issuing. Designs also
can originate with the DMV or the legislature. Texans can get Notre Dame or USC
plates, which probably would irritate most Longhorn fans.
The Texas branch of the Sons of Confederate Veterans, an organization
consisting of members that are accurately described by the organization’s name,
wanted specialized license plates of its own, complete with its logo that featured
a flag of the Confederacy. Now, if it isn’t obvious, not everyone in Texas thinks
that the Confederacy was such a great idea. Although there are a good number
of residents of Texas who are transplants from states that wore blue uniforms
in the Civil War, there also exists a substantial number of native Texans who are
embarrassed about someone flying the Stars and Bars—or putting it on a license
plate. So the Sons were denied:
“The Board explained that it had found ‘it necessary to deny th[e] plate design
application, specifically the confederate flag portion of the design, because public
comments ha[d] shown that many members of the general public find the design
offensive, and because such comments are reasonable.’”
Surprise, surprise! But the Sons sued, claiming that the DMV was improperly
regulating speech: all of those other organizations get to display their logos
reflecting their positions of interests; if they can speak, we should get to speak,
too.
In a 5-4 decision, the Supreme Court held that the logos on Texas license plates
were not protected by the First Amendment because license plates are government
speech. The First Amendment, you see, limits the extent to which the government
can regulate private speech; but it has no impact on speech by the government.
The general principle that the First Amendment does not regulate governmental
speech is not troubling. Some of the examples set forth by Justice Breyer (who
most would have expected would have come out on the other side of this issue)
only make sense. It is not possible for government to function if it were required
to allow opposing views every time it took a position on something.
Dissenting, Justice Alito took the persuasive position that what Texas had
done was to create a limited public forum, where viewpoint discrimination is
constitutionally prohibited. One wonders what Justice Alito would have said if the
subject license plate was “BUYPORN”?
Given that only two of the nine justices—one on each side—spoke to the issue,
it is not entirely clear whether this would extend to vanity plates where the
motorist selects the text. It is distressing to think that a Republican DMV director
would permit “GO JEB” but reject “HILLARY.” It seems clear that, especially in
the case of vanity plates, a limited public forum has been created; just sit by the
side of the road and watch; it’s very entertaining to see what people think up. It is
equally clear that DMVs will argue that all license plates are government speech so
that they can be totally censored; and unfortunately, likely successfully.
The reason the case was “curious” is that there is much litigation over vanity
plates. One would think that the court would have taken a case about vanity
plates, where there is a nearly infinite number of possible expressive possibilities,
although there is a nearly infinite number of organizations. Also, vanity-plate
disputes are far more frequent.
The argument that the author made in the Ninth Circuit—that the DMV cannot
reject any vanity plate unless the speech is an exception to the First Amendment
(fighting words, etc.)—appears to have been shot down. Sigh!
Look for Alabama and Mississippi to put the Stars and Bars on their license
plates. And Mr. Jay’s lot looks to be out of luck—unless, of course, the
government agrees with them.
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