Subscribe"...The Supreme Court has turned back at least four requests to hear cases concerning 'Choose Life' license plates in recent years. But the volume of litigation on this question and the doctrinal free-for-all it has given rise to in the lower courts have convinced many legal scholars that the court must soon step in.
There have been lawsuits in Arizona, California, Missouri, New Jersey and New York challenging denials of 'Choose Life' plates. And there have been a similar number of suits on the other side, challenging approvals of such plates, in Florida, Louisiana, Ohio, Oklahoma, South Carolina and Tennessee.
...But most of the appeals courts to consider 'Choose Life' license plates have ruled that specialty plates convey the positions of the motorists involved. The appeals court in Chicago, the United States Court of Appeals for the Seventh Circuit, ruled against Illinois on this point. Specialty plates, the court said, are 'mobile billboards' for 'organizations and like-minded vehicle owners.'
But a Supreme Court decision in February, Pleasant Grove City v. Summum [PDF], may have complicated matters. The court ruled that a Utah city did not have to allow a minor religion to erect a monument to its Seven Aphorisms near a Ten Commandments monument in a public park, which for many purposes is a classic public forum open to all sorts of viewpoints.
The court acknowledged that the government could not discriminate among speakers in the park and among people handing out leaflets there. But permanent monuments, whether donated by private groups or commissioned by the government, are different, the court said. They are government speech.
The Seventh Circuit issued its ruling in the Illinois case before the Summum decision came down. Last month, the federal appeals court in St. Louis said the decision did not affect its conclusion that specialty plates are private speech. It ordered Missouri to issue a 'Choose Life' plate.
The Seventh Circuit went in the opposite direction. While conceding that specialty plates were private speech, the court said Illinois was nonetheless allowed to reject 'Choose Life' plates because it had 'excluded the entire subject of abortion from its specialty plate program' and so did not discriminate among perspectives on the subject.
It has been a long trip from 'Live Free or Die' to 'Choose Life.' The old case involved the question of what the government may force people to say. The new one asks what it must allow people to say.
Had the states not decided to make license plates a forum for a sometimes comical array of messages, the 'Choose Life' cases would be easy. But many states have turned their motor vehicle departments into a kind of souvenir shop. They may also have given up the right to decide what gets sold in them.
The next great First Amendment battleground, it turns out, is on the back of your car."
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