Making License Plates The ACLU Way

Nashville Is Talking links to my favourite story of the day. The sad tale of the poor put-upon Pro-Choice movement, and their saviours at the ACLU.

The original story in The Tennesseean talks about the pending legislation that may jeopardize all specialty plates in Tennessee.

The main face-off is between Tennessee Right to Life, which sponsored the plate, and the American Civil Liberties Union and others, which say the tags are unconstitutional. They claim that because the state government chose one viewpoint over another, it violated free-speech guarantees in the Constitution.

...

The ACLU maintains that once the state allows drivers to put political slogans on their license plates, it cannot offer that opportunity just to one side of the political debate, said Julie Sternberg, senior staff attorney for the national ACLU. The ACLU had pushed for a "Pro-Choice" plate, but legislators did not pass it.

Yeah. Sounds pretty redneck of us Good Ol Boys in Bible Belt, Tennessee doesn't it? Well, the side of the story you are not being told is this.

Anyone can get a specialty plate approved in Tennessee. Here's all you have to do. Presell a set number of units, pay to have the plate designed, and then submit your forms to the legislature to be rubber stamped. That's what everyone from Radnor Lake enthusiasts to Vols fans have done. And they've all got pretty plates that earn kickbacks to the charity of their choice.

That's exactly what the Right To Life group did. Only here's where the problem kicks in. After they made the presales, After they collected the money, After the plate was designed they submitted their paperwork to the legislature. And John Ford attached a rider to their application saying that "hey--there ought to be a Pro-Choice plate, too." The legislature and Gov. Bredesen both said "Where are the Pro-Choice presales? Where is the Pro-Choice Plate Design? Where is the Pro-Choice Paperwork?" Well. It appears to not have existed, and thus the plate design was refused.

So, naturally the Pro-Choice groups went out, made presales, designed a plate and submitted the paperwork sued.

You can read the text of the suit here.

The ACLU does not deny that the Pro-Choice Groups failed to follow proper filing procedure. They merely insist that they should be exceptioned from proper filing procedure in order to guarantee free speech. Would it have been far more cost effective to follow proper procedure? Undoubtedly. Would it have made such good press? Undoubtedly not.

UPDATE:

From Bruce Barry, who sits on the board of the ACLU.

Katherine,

On your blog post regarding the 'choose life' license plates and the ACLU lawsuit, you have many facts wrong.

You write: "Anyone can get a specialty plate approved in Tennessee. Here's all you have to do. Presell a set number of units, pay to have the plate designed, and then submit your forms to the legislature to be rubber stamped."

Not correct. One has to presell a number of units and have the design in order to have the plates produced. To get it approved, you get the legislature to pass a bill authorizing the plates. This typically happens before the presale, and there is no legal requirement anywhere that the plates be designed and presold before legislative approval.

You write about the right to life group pushing the plate: "After they made the presales, After they collected the money, After the plate was designed they submitted their paperwork to the legislature."

Not correct. It is inaccurate to say that the pro-life plate people designed their plate and presold it before having it approved by the legislature. Quoting verbatim from the bill that was passed by the legislature authorizing the choose life plates: "The new specialty earmarked license plates provided for in this section shall contain an appropriate logo and design. Such plates shall be designed in consultation with a representative of New Life Resources." I doubt they even could presell before legislative approval -- but it doesn't matter anyway because the statute is a legislative act independent of presales and design phases.

You write: "John Ford attached a rider to their application saying that "hey--there ought to be a Pro-Choice plate, too." The legislature and Gov. Bredesen both said "Where are the Pro-Choice presales? Where is the Pro-Choice Plate Design? Where is the Pro-Choice Paperwork?" Well. It appears to not have existed, and thus the plate design was refused."

Incorrect. John Ford introduced an amendment to the proposed statute (not a "rider" to an "application") authorizing the pro-life plate. There was no pro-choice design. There was no pro-life design. It doesn't matter because design is not part of the legislation. The legislature tabled the Ford amendment, killing it, and then passed the bill. So the legislature went on record approving a pro-life plate but refusing to approve a pro-choice plate. That is classic and unconstitutional viewpoint discrimination, as federal judge Todd Campbell found in his ruling of summary judgement for ACLU (354 F. Supp. 2d 770). Quoting from that ruling:
In this case, the State of Tennessee has allowed the "Choose Life" viewpoint to the exclusion of "Pro-Choice" and other views on abortion. Even if the government can selectively fund one activity and not another, as argued by Defendants, citing Rust v. Sullivan, it is the individual citizen, not the government, who "funds" the extra costs and speech of the "Choose Life" license plate.This conclusion holds no matter what type of forum the license plate is considered to be -- traditional public forum, designated public forum, or non-public forum. Because the State has established a license plate forum for the abortion debate, it cannot limit the viewpoints expressed in that forum. The type of forum that exists is relevant only if the logo or message is viewpoint-neutral. "Choose Life" is not viewpoint-neutral speech. The statute at issue makes clear that the State of Tennessee is willing to use its considerable power and resources to control private speech and to discriminate based on viewpoint. The First Amendment makes clear, however, that the State cannot do so constitutionally. The Court finds that the statute at issue, Tennessee Code Annotated, § 55-4-306, is unconstitutional because the State of Tennessee, through this statute, discriminates based upon viewpoint. The State Defendants, therefore, are hereby enjoined from enforcing the "Choose Life" statute. The result in this case would be the same if the statute authorized a "Pro-Choice" license plate instead of the "Choose Life" license plate. Either way, it is unconstitutional viewpoint discrimination in violation of the First Amendment.

You write: "The ACLU does not deny that the Pro-Choice Groups failed to follow proper filing procedure. They merely insist that they should be exceptioned from proper filing procedure in order to guarantee free speech."

This case has nothing to do with filing procedure. Filing procedures are not at issue in the legal complaint brought by ACLU, and they are not mentioned in the district court ruling by Judge Campbell. This case is about whether these specialty license plates are a public forum for private speech. Federal courts in multiple circuits have ruled that they are, which means that viewpoint discrimination practiced by state governments administering these plates raises clear first amendment problems.

If you are going to write about this issue, you ought to get the facts right. Instead you utterly misrepresented the basis for the ACLU's lawsuit on this. You may not like the district court's opinion on this, but it was a predictable one based on well established first amendment law regarding public forum speech and the first amendment.

I am copying Brittney on this note because she (at NIT) linked to Katherine's well of misinformation. Either of you are welcome to quote from this note on your blogs if you care to.

Bruce


----

Now Me:

Bruce, my experience with the cycling plates was that all of the paperwork had to be completed before the bill could be introduced in the legislature. Included in that paperwork were proposed designs and prepaid committments to the "Share The Road" plates. As to the procedural language (i.e. amendment vs. rider) you are correct, and I stand corrected. However, I fail to see how--barring any procedural difference--my point is inaccurate. Why did Planned Parenthood et. al. not follow the same filing procedure for their own plates? Why instead do what amounts to an end-run around the system? Should the "Share The Road" plate team sue the NASCAR people for not including their right to a dissenting viewpoint?

You say the case has nothing to do with filing procedure and you are correct. You are also agreeing with me. The legal case is all about Planned Parenthood et. al. attempting a court-based sacking of the quarterback. For the record this is what people talk about when they "whine" about activist judges. You have a group that decided they would quite literally 'make a federal case out of it'. Just get the 1000 people to agree to buy the plates and have done with it. Then the legislature would be able to okay the Pro-Choice plate.

I get that the ACLU has a vested interest in having this be a court case, and I get why you are so in favour of continuing to bolster that image in the public eye with these grandiose shows of "fighting for the little guy". In reality, the ACLU is playing 1000 lb. gorilla. Call it a statute, call it an amendment, call it a rider. It's all the same thing. One team played by the rules, the other didn't. Now the side who won't play fair wants the ref to call the game in their favour. It stinks.

Let's try this analogy. A mother tells two kids they can go to a birthday party for their friend if they both clean their bedrooms. Suzy picks up her toys, makes her bed and hangs up her clothes. Mary does nothing. When the time comes to send the children to the party, Mother says Suzy may go but Mary may not. Mary complains to Dad that it isn't fair for Suzy to have all the fun because parents shouldn't favour one child over the other and sending Suzy alone is showing favourtism. It is also punishing the neighbor child who wanted to have both girls at the party. Dad agrees and says that favourtism is wrong and punishing the neighbor child is also wrong. Now, the argument to Dad has NOTHING to do with the original "filing procedure" of cleaning the room. That's exactly what you're saying about the courtcase. Sure it has nothing to do with the "filing procedure" yet everything about how they ended up before Dad began with the uncleaned room.