ACLU v. Bredesen

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In ACLU v. Bredesen, 441 F.3d 370 (6th Cir. 2006),[1] the Court of Appeals for the Sixth Circuit reviewed the constitutionality of Tennessee's statute making available the purchase of automobile license plates with a "Choose Life" inscription, but not making available the purchase of automobile license plates with a "pro-choice" or pro-abortion rights message. See TENN. CODE ANN. § 55-4-306.

The Court upheld the constitutionality of the Tennessee statute against a challenge based on the First Amendment:

Government can express public policy views by enlisting private volunteers to disseminate its message, and there is no principle under which the First Amendment can be read to prohibit government from doing so because the views are particularly controversial or politically divisive. We accordingly reverse the judgment of the district court invalidating the statute on First Amendment grounds.

The heart of the Court's decision was its reliance on the U.S. Supreme Court decision allowing New Hampshire's "Live Free or Die" license plate motto:

Plaintiffs' most intuitively inviting argument-that the government must be viewpoint neutral when it relies on like-minded volunteers to disseminate its message-cannot in the end invalidate the Act. Plaintiffs point to the following facts to support this aspect of their argument: (a) the government must receive one thousand advance customer orders for the "Choose Life" plate or Tennessee will not manufacture it; (b) the "Choose Life" message is communicated by private citizens' affirmatively purchasing the plates and attaching them to their privately-owned vehicles; (c) the Tennessee government devotes no funds to disseminating the "Choose Life" message, but rather raises money by selling these plates to customers who wish to have "Choose Life" plates on their cars. While it is true that such voluntary dissemination itself qualifies as expressive conduct, the government's reliance on private volunteers to express its policies does not create a "forum" for speech requiring viewpoint neutrality.
This conclusion is supported by negative inference from the one Supreme Court case dealing with license plate speech. In Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), New Hampshire embossed its state motto, "Live Free or Die," on standard-issue license plates in the same way that Tennessee would stamp "Choose Life" on specialty plates. See id. at 707. The Wooley Court characterized "Live Free or Die" as "the State's ideological message," id. at 715, and the State's "official view," id. at 717. The Supreme Court held that New Hampshire could not constitutionally prosecute vehicle owners for covering up the motto on their license plates, because by doing so the State would be unconstitutionally forcing automobile owners to adhere to an ideological point of view they disagreed with. Nowhere did the Court suggest that the State's message could not be so disseminated by those who did not object to the State's motto, or even hint that the State could not put the message on state-issued license plates. "Choose Life" is Tennessee's public message, just as "Live Free or Die" communicated New Hampshire's individualist values and state pride. The evil in Wooley was that the automobile owners were compelled to disseminate the message; here automobile owners are not only not compelled, they have to pay extra to disseminate the message.

The Court held that a forum was not created by the issuance of these license plates:

In general, the government does not create a "forum" for expression when it seeks to have private entities disseminate its message. In Johanns, for instance, the federal government paid for the "Beef. It's What's for Dinner" message and other promotional messages. 125 S. Ct. at 2059. Although these involved "print and television messages," id. at 2059, presumably published or broadcasted by hired private entities, the Court classified this and the rest of the beef promotions as government speech for First Amendment purposes. See id. at 2058, 2062-66. Likewise, in Rust v. Sullivan, the federal government allocated Title funds to doctors for family planning counseling but forbade such doctors from discussing abortion with the program's patients. 500 U.S. 173, 178-83, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991). ... If in this case Tennessee drivers were paid by the government to display "Choose Life" plates, the Act would unquestionably be constitutional.
In this case, however, the carriers of Tennessee's message are unpaid. They are volunteers. Rather then receiving government money, they pay out of their own pockets for the privilege of putting the government-crafted message on their private property. Plaintiffs argue that this fact demonstrates that "Choose Life" is not purely the government's message but also the speech of the customers who purchase and display these plates-thus creating a "forum" for speech. While it is true that volunteers' display of "Choose Life" plates expresses agreement with Tennessee, that fact does not mean that a First Amendment "forum" for speech has been created.
The doctors in Rust disagreed with the government's anti-abortion policy. But if they had been true believers in the policy and had volunteered to work in the program free of charge, the speech restrictions in Rust would still have expressed the government's anti-abortion viewpoint-and therefore qualified for government speech treatment. ... There is nothing in the Supreme Court's decisions in Rust or Johanns that implies that the government has less right to control expressions of its policies when it relies on unpaid private people. No constitutionally significant distinction exists between volunteer disseminators and paid disseminators.
Plaintiffs' view that volunteer dissemination of a government-crafted message creates a "forum," if accepted, would force the government to produce messages that fight against its policies, or render unconstitutional a large swath of government actions that nearly everyone would consider desirable and legitimate. Government can certainly speak out on public issues supported by a broad consensus, even though individuals have a First Amendment right not to express agreement. For instance, government can distribute pins that say "Register and Vote," issue postage stamps during World War II that say "Win the War," and sell license plates that say "Spay or Neuter your Pets." Citizens clearly have the First Amendment right to oppose such widely-accepted views, but that right cannot conceivably require the government to distribute "Don't Vote" pins, to issue postage stamps in 1942 that say "Stop the War," or to sell license plates that say "Spaying or Neutering your Pet is Cruel."

Judge John Rogers wrote the opinion for the Court, while Judge Boyce Martin concurred in part and dissented in part.