Constitution Check: What power does the government have to control “mobile billboards”?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the broad implications of Thursday’s Supreme Court ruling about messages on license plates.

THE STATEMENTS AT ISSUE:

“Unfortunately, the court’s decision categorizes private speech as government speech and thus strips it of all First Amendment protection. The court holds that all privately created messages on the many specialty plates issued by the state of Texas convey a government message rather than the message of the motorist displaying the plate….This capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous…But the precedent this case sets is dangerous.”

– Excerpts from Justice Samuel A. Alito, Jr.’s dissenting opinion in the Supreme Court’s 5-4 decision on Thursday upholding state power to veto messages that owners of cars and trucks want to display on their state-issued license plates. The ruling came in the case of Walker v. Texas Division, Sons of Confederate Veterans.

“Here we are faced with a state measure which forces an individual, as part of his daily life – indeed constantly while his automobile is in public view – to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable….New Hampshire’s statute in effect requires that [motorists] use their private property as a ‘mobile billboard’ for the +state’s ideological message, or suffer a penalty.”

– Excerpt from the majority opinion in the Supreme Court’s 1977 decision in Wooley v. Maynard, striking down a New Hampshire law requiring that all auto license plates in the state must carry the state’s motto, “Live Free or Die.” A motorist who was a Jehovah’s Witness objected on religious grounds to that message, and won his challenge in the Supreme Court

WE CHECKED THE CONSTITUTION, AND…

In few parts of the current Supreme Court’s work in interpreting the Constitution has it made a clearer record than in its fervent embrace of a robust First Amendment. From violent video games and films to funeral protests to soldiers claiming medals they never received to corporations’ financing election campaigns, this court has seen wide varieties of expression that it has been eager to protect from government regulation or censorship.

Those have seemed like strong echoes of a decision made years earlier by a different Supreme Court (not one of the Justices sitting back then remains on the bench today) declaring that a person driving a car makes some kind of a statement by the message on the license plate of the car they drive.

What the court did in the 1977 case of Wooley v. Maynard was to insulate motorists from the phenomenon known as “compelled speech” – that is, being required to convey a debatable message that the government favors. Such compulsion, the court said then, interfered with the citizen’s right to choose what to say and what not to say. The principle has been a lasting one in First Amendment principles.

But is it still true today that a license plate remains a sort of “mobile billboard” for the motorist, displaying something about that person or that person’s likes or dislikes? If the car owner is allowed to put “CHOOSE LIFE” on that plate, is that an attempt to tell the world out on the highway that there goes a foe of abortion? How about “GUNS FOR ALL” – a Second Amendment enthusiast?

Those options are, in fact, open to motorists in some states, under specialty or “vanity” plate programs. And, while the precedent in the Wooley case probably would still prevent the state from ordering someone to put those messages on their cars’ plates if they objected, does the motorist have a First Amendment right to opt to select and display that kind of provocative message?

Apparently not. In a new ruling Thursday, the Supreme Court decided for the first time that a state is constitutionally entitled to set up a specialty plate program and appoint itself as the censor of what is said on every plate it issues. It can do that, as the majority found had been done in Texas, because what is said on a license plate is “government speech.” And, as the court has long made clear in its understanding of the First Amendment, when the government chooses to speak, the First Amendment does not direct what it can or cannot say.

“A government,” the majority opinion said, “is generally entitled to promote a program, espouse a policy, or take a position.” Thus, it said, any specialty license plate that is going to be issued in Texas, no matter what it says, has to meet with the government’s approval and will get that approval only when the message is the one the government wants to convey.

Without abandoning the Wooley principle, that the government could not pick out an “ideological message” that it favors and require everyone in Texas to display that expression on cars and trucks, the court clearly has given the state a sweeping power to inhibit the license plate as a “mobile billboard” for the messages that motorists themselves prefer but the state does not endorse.

A group has already found out how that limitation will work, because it lost the case in the Supreme Court. The Texas chapter of the Sons of Confederate Veterans, a group that seeks to keep alive the memory of the sacrifice of those who bought for Dixie in the Civil War, wanted state approval for a license plate displaying the Confederate battle flag.   That was denied by state officials, because officials found that some people think that that ensign is an emblem of hate and racial prejudice. And that decision gained the approval of the Supreme Court majority.

The dissenting Justices wondered: “If the state can do this with its little mobile billboards, could it do the same with big, stationary billboards?...The future uses of today’s precedent remain to be seen.”

It seems highly likely that this ruling will lead other states to take control of their specialty license plate programs – and other modes of state expression – and turn them into message boards for preferred public policy. The First Amendment, apparently, will not stand in the way – if such a state is careful not to pick out a strong ideological message and make every motorist put that on their cars or trucks.