Academic journal article Missouri Law Review

The First Amendment and Specialty License Plates: The "Choose Life" Controversy

Academic journal article Missouri Law Review

The First Amendment and Specialty License Plates: The "Choose Life" Controversy

Article excerpt


Specialty license plate programs, specifically the "Choose Life" specialty license plate, have been and continue to be the subject of much controversy. For those in the pro-life community, the stakes are high. In Florida, as of February 29, 2008, the "Choose Life" specialty license plate has raised over five and a half million dollars for organizations that help women who are committed to adoption. (1) For those on both sides of the debate, the "Choose Life" controversy is shaping the way the judicial system defines government and private speech. Therefore, this controversy has serious implications for First Amendment rights.

The government speech doctrine, concerning speech by the government that is not required to be viewpoint neutral, is a fairly recent concept. (2) As cooperation between government and private parties continues to increase, the distinction between government and private speech becomes even more important. When demarcation between government and private speech is unclear, the government argues that a certain message is government speech because the message is literally printed on government property (e.g., specialty license plates) or part of a specific government program (e.g., family planning under Title X of the Public Health Service Act at issue in Rust). (3) But to some extent, the property itself is simply a vehicle for individuals to express private speech (such as "Choose Life" supporters wanting to put their message on specialty license plates), and the program might involve administration by private parties (such as the doctors subsidized by family planning funds in Rust). (4) If a specialty license plate is considered government speech, then viewpoint neutrality is not required. Further, expanding the government speech doctrine may chill private citizens' free speech rights. Alternatively, if a specialty license plate is deemed private speech, it may gloss over any compelling state interest the government has in crafting its own message.

This summary will examine the models of specialty license plate creation, the history of "Choose Life" specialty license plates, the litigation surrounding the controversy, and the two differing standards courts have used to distinguish government and private speech: the Fourth Circuit's four-factor test and the Johanns test.

In its "four-factor" test, the Fourth Circuit looks to the following factors to distinguish between government and private speech: (1) the central "purpose" of the program in which the speech in question occurs; (2) the degree of "editorial control" exercised by the government or private entities over the content of the speech; (3) the identity of the "literal speaker;" and (4) whether the government or the private entity bears the "ultimate responsibility" for the content of the speech. (5) The Sixth Circuit has declined to apply the four-factor test and instead has applied the test from Johanns--whether "the government sets the overall message to be communicated and approves every word that is disseminated" (6)--to distinguish government from private speech. (7)

Recently, the Ninth Circuit (8) and several federal district courts (9) have adopted the four-factor test of the Fourth Circuit instead of the Sixth Circuit's Johanns test. However, the Sixth Circuit's decision to use the Johanns test over the four-factor test is evidence that there is a split among the circuits regarding which test is most appropriate when applied to the controversy surrounding specialty license plates.

Currently, there is pending litigation in three states, (10) while in fifteen other states pro-life groups are working toward obtaining a "Choose Life" specialty license plate. (11) Moreover, debate continues to surround the issue of specialty license plates outside of the "Choose Life" controversy. (12) Since there is currently a split of authority between the circuits, and because the United States Supreme Court has denied certiorari on the issue five times, (13) the specialty license plate controversy will only escalate over the coming years. …

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