In the 1920s, states began placing messages and symbols, from state seals and mottos to animals and fish, on vehicle license plates.
Does the government’s attempt to force vehicle owners to display a message on license plates violate the owners’ First Amendment rights? Plaintiffs challenging specialty plates have argued that it does because a vehicle is private property.
Drivers are allowed to cover slogans on plates if they choose, Supreme Court said
In Wooley v. Maynard (1977), the Supreme Court agreed with this argument. The Court ruled that because New Hampshire’s “Live Free or Die” slogan was ideological rather than neutral, the state had to permit drivers to cover the message if they chose.
Recently, the courts have turned their attention to whether specialty license plates, which drivers can order to express their own points of view, contribute to viewpoint discrimination and whether the distribution of funds generated by a state specialty license plate program to specific religious or ideological groups violates civil rights protections.
Courts have considered whether states are engaging in viewpoint discrimination in allowing specialty plates
Viewpoint discrimination can arise when a state offers a venue, such as specialty license plates, for some groups to convey their messages, but does not permit other groups to express their views. The Supreme Court has found viewpoint discrimination to be an egregious form of content discrimination. Moreover, if a state distributes revenues from a specialty license plate program to specific groups that promote theological values, it may be violating the establishment clause of the First Amendment.
The states counter that specialty license plates are a form of government speech immune from First Amendment scrutiny. Under the government speech doctrine, the government can assert its own positions or engage in speech without violating the First Amendment.
The Sixth U.S. Circuit Court of Appeals accepted this argument when it rejected a challenge to Tennessee’s “Choose Life” license plates in American Civil Liberties Union of Tennessee v. Bredesen (6th Cir. 2006). “It is Tennessee’s own message,” the appeals court wrote.
Supreme Court said specialty license plates are government speech, immune from First Amendment challenges
The Supreme Court also found Texas’ specialty license plate program to be a form of government speech in Walker v. Sons of Confederate Veterans (2015). Writing for the majority, Justice Stephen Breyer reasoned that the history of specialty license plates established that “license plates have long communicated messages from the States.”
He also reasoned that the public often associates specialty license plates with the States, as license plates are a form of government identification. Breyer identified a third factor – that “Texas maintains direct control over the messages conveyed on its specialty plates.”
The Court was sharply divided 5-4 in the case and Justice Samuel Alito authored a powerful dissent, warning that the majority’s “capacious” application of the government speech doctrine could threaten free speech.
Louisiana faced First Amendment challenge when it did not allow pro-abortion license plates
The courts have gone back and forth on cases related to the “Choose Life” plate.
Like other states offering plates with an anti-abortion message, Louisiana did not provide plates with a pro-abortion viewpoint. Moreover, the state distributed funds raised from the sale of the “Choose Life” plates to anti-abortion Christian groups.
The Center for Reproductive Law and Policy (CRPL) challenged the one-sided message as a violation of the establishment clause of the First Amendment and won a federal injunction against production of the plates in 2000.
However, the Fifth U.S. Circuit Court of Appeals lifted the injunction and refused to hear the CRLP’s appeal (CRLP is now the Center for Reproductive Rights). On December 2, 2002, the U.S. Supreme Court also refused to hear the appeal.
In 2003 a district court in Louisiana ruled that it was unconstitutional for the state to offer specialty license plates carrying the viewpoints of only those organizations approved by the legislature. But in Henderson v. Stalder (5th Cir. 2005), the Fifth U.S. Circuit Court of Appeals vacated the lower court’s decision, stating that it did not have jurisdiction in the matter because of Louisiana’s Tax Injunction Act.
4th Circuit said private logos on license plates are protected speech
Rulings in other states have also addressed specialty license plate lawsuits. In Virginia, for example, the Sons of Confederate Veterans brought suit challenging the state’s banning of the Confederate flag on license plates. The Fourth U.S. Circuit Court of Appeals ruled in Sons of Confederate Veterans v. Commissioner of the Virginia Department of Motor Vehicles (4th Cir. 2002) that private association logos on government-issued license plates are protected free speech.
However, the Supreme Court’s Walker decision calls into question those decisions that found specialty license plates to be a form of private speech or mixed speech. It appears that specialty license plates are considered government speech unless the Supreme Court revisits the issue.
This article first was published in 2009 and has been updated. The primary contributor was Gary E. Bugh, a professor at Texas A&M University-Texarkana. It has been updated by other First Amendment Encyclopedia contributors.