Tuesday, March 28, 2006

Govnernment Speech and License Plates

Last week the 6th Circuit overturned a District Court decision that enjoined Tennessee from issuing "Choose Life" license plates. You can read the news article or look up the decision at 2006 WL 664372 (American Civil Liberties Union of Tennessee v. Bredesen--it's not in a reporter yet, obviously). The court classified the plates as "government speech" and allowed it. The way I understand it, the government is allowed to take certain positions (e.g. "Smoking is bad."). Here, though, the challengers claimed that the government was not taking a position but providing a forum for private citizens to take a position. Why this is somehow constitutionally worse eludes me. It seems to me that, if anything, private speech would be MORE protected than government speech (for example because it doesn't not have other restraints such as establishment of religion clause). Perhaps someone can explain that to me? At any rate, the court didn't buy the argument.

If you're taking Civil Procedure like me, there is a mildy interesting subject matter jurisdiction question in section II of the decision. Appellants tried to say that the state had reserved exclusive jurisdiction over claims arising from state tax laws, and this was such a claim. Court said forget it; the extra $10 the plate costs is voluntary, so it's more like a purchase from the state government than a tax.

Anyway, I know these kinds of plates have been challenged in other states, and I'm not sure if all the outcomes have been similar. If not, is this an important (or ripe) enough question for the Supreme Court to grant cert?

3 comments:

Josh Kolsky said...

"Here, though, the challengers claimed that the government was not taking a position but providing a forum for private citizens to take a position. Why this is somehow constitutionally worse eludes me. . . . Perhaps someone can explain that to me? "

I'm not sure either is truly constitutionally proper, but here's my take on why the mixed government-private speech is worse here.

A forum is presumed to be open. So, if you go to a town meeting, you expect that there are no limitations on the views expressed. As you listen to the views of the participants, you are persuaded based in part on the number of people holding a particular view.

What if the town meeting was not open? What if only those who favored one side of a particular issue were allowed to speak? Those people would be able to persuade others, and the audience would assume that that side of the issue was favored overwhelmingly, because no opposition would be expressed.

If license plates are to be considered a forum (as I believe they should be considering the particulars of the Tenn. license plate program) then we would expect an open, viewpoint-neutral forum. But the forum is not neutral - one side of a controversial subject is denied the opportunity to participate in the forum. So it creates the inaccurate view that everyone favors one side.

In contrast, when the government speaks, the audience understands that it is the government's position. There is no expectation of opposing views.

I think the decision was blatantly wrong - one of the most obviously incorrect opinions I've read while in law school.

Becca said...

Woah! Thanks. Your explanation is quite lucid. I read your post on the subject--interesting. One day I too will take First Amendment Law and be able to post intelligent discussions of such cases.

Becca said...

(Josh's post on the topic is here, if anyone else is interested.)