by Linda Holmes, J.D.
July 14, 2008
License plates used to be such simple things. A kid on a road trip could learn what the plates for all 50 states looked like and could check them off on a list. Not anymore.
Standard license plates have been replaced in many states by diverse galleries of specialty plates that promote organizations, colleges, charities and the importance of saving the manatee. Specialty-plate programs not only feed our bottomless desire for I-gotta-be-me expression but also raise revenue, both for the organizations that sponsor them and for the states.
They also can put states in a great big pot of hot water. South Carolina is learning this after passing legislation authorizing the manufacture of “I Believe” license plates that expressly promote Christianity, complete with the “I Believe” language, a cross and a stained-glass window. This is not an attempt to create some sort of nonsectarian, ecumenical compromise; it’s an image of a Christian church. Unsurprisingly, no “I Believe” plate promoting any other faith is offered, and “I Don’t Believe” isn’t available either. Equally unsurprisingly, the state already is being sued. And while courts have taken different approaches to license-plate cases in the past, the future looks grim for the “I Believe” plate, whichever approach wins out.
What makes license plates legally vexing is that it’s not clear whose views are expressed on a license plate. On one hand, vanity and specialty plates are a manifestation of our compulsive desire to express our individuality on every surface we encounter. On the other hand, the design of a specialty plate appears with the name of the state on a government-issued identifier that the driver must display to comply with the law, so it takes on the appearance of a government document.
Indeed, the question of whether what is written on a license plate is “private speech” or “government speech” often has dominated earlier plate-related controversies. When the government speaks for itself, it generally can favor one point of view over another, but when it regulates private speech in a public forum, it generally cannot.
When a number of states offered “Choose Life” specialty plates at the behest of abortion opponents a number of years ago, controversy flared. The plates survived scrutiny in most courts (often because objecting plaintiffs were found to lack standing), with the exception, interestingly, of South Carolina’s program, which was thrown out by the Fourth Circuit Court of Appeals.
The Court found a constitutional violation after concluding that the plate was at least in part private speech, meaning that the specialty-plate program constituted a public forum for citizens to express themselves. The court then applied existing case law on public forums to conclude that the state could not create such a forum and open it to one participant’s viewpoint by manufacturing a plate for him or her to use if those with an opposing view had no similar opportunity.
The government, however, had argued that the “Choose Life” plates were government speech. Thus, the same way the government can promote “Stay in School” or “Don’t Pollute” messages, it can choose to advocate one side of a public-policy matter – such as one about abortion and adoption – but not the other side.
To understand why the “I Believe” plate is in particular trouble, it helps to understand the two ways you can get a specialty plate established in South Carolina. One method doesn’t involve the legislature at all; it’s an internal Department of Motor Vehicles process in which a nonprofit organization (for instance, a charitable organization devoted to fighting a disease) submits an application for a plate with the organization’s name and emblem. The organization also has to either show that 400 people have committed to purchasing the plate or put down a deposit of $4,000. If the plate makes it through the DMV approval process, the plate goes into production.
The other process starts with the legislature, which can create a plate by passing a bill. Once the bill passes, the plate can hit the street as soon as the same 400 applications or $4,000 from the sponsoring organization is received. This is the way the “I Believe” plate was passed.
The legislation mandated the message and the cross; it even mandated the stained-glass window.
The two processes have important differences. The DMV method involves strict limitations on what can appear on the plate. Specifically, the organization is allowed to display only its name and emblem — it is not allowed additional text. This is why an organization of atheists cannot get a plate made that says “I Don’t Believe.” It’s also why if another religious organization created a plate proclaiming its belief, it would necessarily be less elaborate than the “I Believe” plate. A plate promoting a Jewish organization, for instance, could show only the emblem of the organization but could not create an entire scene parallel to the cross, stained-glass window and color scheme of the Christian plate.
The legislature mandated the “I Believe” plate on its own. The DMV process, however, when it originates with an organization’s application, leaves the department broad discretion to turn down an application for reasons as elastic as “does not promote a positive image for the state,” “lack of statewide appeal,” “workload” (that’s the department’s workload), “litigation in other states” and — amusingly enough — “controversial.” Since the DMV apparently can turn down a design for any reason from “some people might not like it” to “we’re too busy,” there is certainly no guarantee that an organization of atheists (or Muslims, Jews, Wiccans or Quakers) could get a specialty plate made anyway, even the pared-down plate with no text.
The Christian plate, simply put, has a huge, legislatively established advantage over any plate that anyone who disagreed with the message “I Believe” — and implicitly with the message “I Believe in Christianity” — could display in response.
What makes the “I Believe” plate interesting is that it looks illegal no matter how it’s evaluated. If specialty plates are private speech, then they are part of a limited public forum. If that’s the case, the government certainly cannot grant Christians but not others the ability to express themselves regarding religion on the backs of their cars and can’t build in advantages for Christian plate holders over others. If, on the other hand, specialty plates are government speech, then the government is advocating Christianity directly, which would violate the establishment clause of the U.S. Constitution, which imposes a separation of church and state.
It’s not entirely clear why it’s so important to people to attach bumper-sticker-style messages to their license plates to begin with, given that everyone is free to convey those messages using actual bumper stickers. What’s clear is that, barring a significant change in the way the law is applied, the “I Believe” plate will not survive.
Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.
v. Adams, Case No. 3:2008cv02265 (D.S.C. June 19, 2008).
Services Corp. v. Velazquez, 531
Parenthood of South Carolina, Inc. v. Rose, 361 F.3d 786 (4th Cir.
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