Suppose, once more, that the state of Tennessee issues specialty automobile license plates bearing the anti-abortion legend "Choose Life." Suppose, finally, that Tennessee legislators refuse to issue licenses that say, as an alternative, "Pro-Choice."
Put these hypotheticals all together, and you have American Civil Liberties Union v. Philip Bredesen, Governor . The case is now pending in the U.S. Supreme Court on a petition for appeal from the 6th Circuit. The high court probably will take the case for argument next year. Some important issues of free speech, states' rights and equal rights are at stake, and federal courts are sharply divided on the answers.
There was a time when automobile license plates were models of simplicity. In plain black-and-white, they provided a state name and a license number. Then it occurred to a few astute highway commissioners that there was advertising gold in those tin plates. New Hampshire figured in a major Supreme Court case that turned on its state motto, "Live Free or Die." Now every state offers specialty license plates. Maryland issues 600 of them.
Over the years, Tennessee's legislature has authorized roughly 150 specialty plates, including plates to honor Boy Scouts, Sons of Confederate Veterans, and even the smallmouth bass. Any reasonably reputable organization that can find a legislative sponsor and round up a thousand pledged purchasers may apply. Typically, the state collects an additional $35 per plate for the privilege.
In the case at hand, an anti-abortion organization, New Life Resources, met the statutory requirements. It also had the political clout. As a natural consequence, in 2003 Tennessee adopted a law authorizing the sale of "Choose Life" plates and directing how the proceeds should be spent. New Life would control half of the net proceeds. The other half would go to the Tennessee Art Commission (40 percent) and the state highway fund (10 percent).
On the other side, members of Planned Parenthood of Middle and East Tennessee lobbied hard for a "Pro-Choice" alternative plate. They had a thousand prospective buyers in line, but they lacked a majority in the Tennessee legislature. Their bill twice failed. Then the ACLU went to court on their behalf. Pro-Choice won in U.S. District Court but lost 2-1 before a panel of the 6th U.S. Circuit. From that defeat, the ACLU now seeks Supreme Court review.
Circuit Judge John M. Rogers, joined by Judge David M. Nelson, conceded that Tennessee's exercise of "government one-sidedness" may be ill-advised. Even so, there is no constitutional principle that prohibits the state from expressing public policy and using private volunteers to disseminate its message. No automobile owner is compelled to buy a "Choose Life" plate and attach it to his car.
Judge Boyce F. Martin Jr. strongly dissented. In his view, Tennessee's one-sidedness amounts to "unconstitutional discrimination on the basis of viewpoint." The constitutional question, as he sees it, is whether the state, having created a forum for the public expression of ideas, may suppress a disfavored idea.
"The First Amendment harm in this case has nothing to do with being forced to speak or to subsidize a message. Rather, the harm is being denied the opportunity to speak on the same terms as other private citizens within a government-sponsored forum. ... We cannot view each of (the 150 specialty plates) in isolation. I suggest that when opening one's eyes to the license plate program as a whole, it is evident that the government has created a program to encourage a diversity of views and messages from private speakers. ... The Constitution requires viewpoint neutrality."
Is that so? I'm not so sure. If a state sells a "Go Democrats!" license plate, must it offer a Republican plate on the same terms? Such concepts as "fair play" and "equal opportunity" are attractive ideas. Everyone speaks well of them. The Constitution guarantees equal protection of the law. But a free society also is fueled by the infinite inequalities that go with the nature of mankind. To the victor belong some spoils.
Nothing prevents the pro-choice folks at Planned Parenthood from selling their own bumper stickers — and they could keep all the profits.
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
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