March 18, 2006
Case Law Development: Sixth Circuit Federal Appeals Court Approves Tennessee Pro-Life-Only License Plate Plan – Rejects Fourth Circuit Court of Appeals Analysis
The United States Court of Appeals for the Sixth Circuit ruled on Friday 2-1 that Tennessee can offer a pro-life specialty license plate even though it does not offer a pro-choice license plate to state drivers. The lawsuit, which was filed by the American Civil Liberties Union, contended that the issuance of only pro-life plates signaled government endorsement of that view.
Judge Rogers, in rejecting the challenge, wrote for the majority on the panel that “In this case we are required to decide the constitutionality of Tennessee’s statute making available the purchase of automobile license plates with a `Choose Life’ inscription, but not making available the purchase of automobile license plates with a `pro-choice’ or pro-abortion rights message.” He went on to hold that “Although this exercise of government one-sidedness with respect to a very contentious political issue may be ill-advised, we are unable to conclude that the Tennessee statute contravenes the First Amendment.”
On the merits, the court said that it was faced with a purely legal issue: whether a government-crafted message disseminated by private volunteers creates a “forum” for speech that must be viewpoint neutral. The Plaintiffs argued that “Choose Life” on specialty plates should be treated not as Tennessee’s own message, which is allowed, but as “mixed” speech subject to a viewpoint-neutrality requirement. In rejecting the Plaintiff’s contention, the court stated that “First, there is nothing implausible about the notion that Tennessee would use its license plate program to convey messages regarding over one hundred groups, ideologies, activities, and colleges. Government in this age is large and involved in practically every aspect of life. . . . Second, . . . the participation of New Life in designing the “Choose Life” logotype has little or no relevance to whether a plate expresses a government message. Third, . . . a government-crafted message is government speech even if the government does not explicitly credit itself as the speaker.” The panel reasoned that “[I]nvalidating the Act in this case would effectively invalidate not only all those government specialty license plate provisions that involve a message that anyone might disagree with, but also effectively invalidate all manner of other long-accepted practices in the form of government-crafted messages disseminated by private volunteers. We are not provided with a sound legal basis for making such a leap.”
The majority recognized its disagreement with the Fourth Circuit, which has invalidated a nearly identical specialty license plate law in South Carolina. See Planned Parenthood of S.C., Inc., v. Rose, 361 F.3d 786 (4th Cir. 2004). Judge Martin, in dissent, stated that it was apparent to him that “the state created the specialty license plate program to facilitate private speech (notwithstanding the government speech aspects inherent in the issuance of a license plate), and not to promote a governmental message. This fact, even conceding that there must necessarily be some governmental speech involved in the issuance of license plates, requires that the government be viewpoint neutral.” ACLU, et. al. v. Tennessee, et. al., filed March 17, 2006. Download the Sixth_Circuit_license_plate_decision here.pdf (reo)
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