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License Plate Cases: 2 States Seek Cert., Speech Rights

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By William Peacock, Esq. on September 05, 2014 3:59 PM

This is an issue that the U.S. Supreme Court has been dodging for years: Whose speech is conveyed on a personalized license plate?

In 1977, the Supreme Court decided Wooley v. Maynard, a case where the Court presumed that a license plate was private speech and held that citizens couldn't be forced to display the motto "Live Free or Die." Since then, the Court has turned away case after case dealing with personalized plate programs, most of which were states' denials of pro-choice or pro-life license plates.

Now, the Court has two more cert. petitions on its desk: Texas' denial of a Confederate Sons plate and North Carolina's refusal to issue a pro-choice alternative to their existing pro-life plate.

Viewpoint discrimination? State speech? Private speech? Or some mixture of the two?

The Problem: State or Private or Mixed Speech

In most of these states, getting a custom license plate is as simple as submitting a petition with a large amount of signatures on it. The state then issues a plate, which costs more than the standard-issue variety, and part of the proceeds goes to a related charity.

You can imagine where this is going: Controversial messages, such as Confederate flag plates, pro-choice and pro-life duels, all end up on the DMV's doorstep. States may not want to issue, for example, a Massachusetts Confederate flag plate, but if they refuse to do so, are they censoring private speech, or exercising state speech? Most circuit courts of appeal have held that these plates are private speech, while others have said mixed speech -- none, that we're aware of, have sided with the states.

And the issue goes far beyond availability of abortion or Confederate plates: Other courts, such as the Indiana Supreme Court, are dealing with personalized characters on plates, like an a police officer's self-deprecating "0INK" plate that was rejected by that state's Bureau of Motor Vehicles.

North Carolina: Raises Up to SCOTUS

North Carolina filed its cert. petition in July. We covered the state's loss in the Fourth Circuit. The court there held that license plates were private, or at best, mixed speech. Either way, the state's refusal to issue a pro-choice plate while allowing a pro-life plate amounted to viewpoint discrimination and was unconstitutional, the court held.

Texas: Not Proud of Rebel Pride

Texas filed its cert. petition last month, after the Fifth Circuit ruled that the state's refusal to issue Sons of Confederate Veteran plates also amounted to viewpoint-based discrimination. The court also held that license plates were purely private speech, though the dissent argued for mixed speech and allowing the plates.

Fun fact: SCV plates are available in nine states. In seven of those states, SCV had to sue to get the plates approved, reports the Dallas Morning News.

Wildcard: A SCOTUS Monuments Case

In 2009, the Supreme Court decided Pleasant Grove City v. Summum, a case involving private donors who paid for monuments that were displayed in city parks. Most (if not all) of the monuments displayed the donors' messages and inscriptions (private speech). The Court held that the government could pick and choose which monuments it wished to display, validating arguments about mixed speech and dismissing arguments about viewpoint discrimination.

Alternative: Shut Everyone Up

When the Fourth Circuit handed down its ruling in the North Carolina case, it approvingly cited the Seventh Circuit's approval of Illinois' approach: refusing to issue any abortion-related posts. This "close the forum" tactic is appealing because it avoids viewpoint discrimination questions, and is a tactic the Fourth Circuit explicitly approved in a recent Confederate flags on city lamp posts case. The Supreme Court declined to hear an appeal of the Seventh Circuit's decision in 2009.

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