Specialty Plates: Who Is Speaking? American Civil Liberties Union of Tennessee V. Bredesen
Holladay, Kathleen E., Faulkner Law Review
Is a message printed on a specialty license plate generally attributed to the government or the driver? Several courts have analyzed this issue because of its relation to the Free Speech Clause of the First Amendment. (1) In ACLU of Tennessee v. Bredesen, the Sixth Circuit Court of Appeals addressed the issue when it analyzed whether a specialty license plate program created a forum that required viewpoint-neutrality. (2) In Tennessee, a group interested in creating its own specialty license plate can apply for approval provided it pays registration, issuance, renewal, and handling fees; meets a minimum number of advanced orders for the plate; and gains approval from the commissioner for the the plate's design. (3) The revenues from the sales of the plates are divided: half goes to non-profit groups "committed to advancing the causes publicized on the plates" (4) while the other half goes to the State. (5)
In 2003, the Tennessee legislature passed the Choose Life Act, (6) which authorized a plate bearing the words "Choose Life." (7) The revenues from the sales of this plate would be split between the State and a private entity called New Life Resources, which was required to use its half "exclusively for counseling and financial assistance, including food, clothing, and medical assistance for pregnant women in Tennessee." (8) Before the Choose Life Act was enacted, Planned Parenthood of Middle and East Tennessee lobbied the legislature in an attempt to amend the statute to authorize a pro-choice plate; however, this amendment was rejected. (9) The American Civil Liberties Union of Tennessee (ACLU), among others, filed suit asking the court to enjoin enforcement of the Act. (10) The district court agreed with the plaintiffs and ordered the injunction, holding that the message was not government speech, but instead was "mixed" (hybrid) speech and, therefore, subject to viewpoint neutrality. (11) New Life appealed the decision. (12)
The Sixth Circuit, in Bredesen, held that messages on specialty license plates represent government speech, (13) rejecting the ACLU's argument that specialty-plate messages are hybrid speech, which must be viewpoint-neutral. (14) The court also rejected the ACLU's argument that private volunteers' dissemination of the message creates a forum that requires viewpoint neutrality. (15) The court relied on the Supreme Court's opinion in Johanns v. Livestock Marketing Association, which concluded that when "the government sets the overall message to be communicated and approves every word that is disseminated," it is government speech. (16) The Sixth Circuit's decision in Bredesen took a marked turn from other courts on this issue: it is the only one to have held that specialty plates are purely government speech. (17)
The decision in Bredesen was incorrect because the court misapplied precedent. Since this case does not fit in the category of government speech financed by compelled subsidies, which was the issue analyzed in Johanns, (18) the court should have used the four-factor analysis articulated by the Fourth Circuit and later adopted by the Ninth Circuit. The Fourth Circuit's analysis requires a reviewing court to determine whether the messages on specialty plates are government, private, or hybrid speech; and whether the specialty plate program has created a forum to encourage diverse viewpoints that are required to be neutral. (19) The Seventh Circuit, in a later decision, noted that it believed the Sixth Circuit's conclusion was flawed and that the Fourth and Ninth Circuits' reasoning was more persuasive. (20) But the Seventh Circuit reduced the multi-factor test used by the Fourth and Ninth Circuits to a "reasonable person" test. (21) Since the Seventh Circuit's case was decided after Bredesen, the Sixth Circuit should have used the four-factor test applied by the Fourth and Ninth Circuits.
The first section of this Note discusses background information about the different categories of speech: government, private, and hybrid. …