Court Restricts Free Speech: Pro-choice Told No Way, Confederate Flag and Choose Life are O.K.

On March 17, the Sixth Circuit issued a split 2-1 decision allowing the state of Tennessee to discriminate against the political views of some if its citizens. The two Republican appointees (appointed by Reagan and Bush II) in the majority said it was OK for the state to produce “Choose Life” license plates requested by abortion opponents, but to refuse to produce pro-choice license plates requested by reproductive rights supporters.

This decision is so out-of-step with First Amendment law that even the conservative Fourth Circuit – including J. Harvie Wilkinson and J. Michael Luttig, both on President Bush’s “short list” of Supreme Court nominees – reached the opposite conclusion when the issue came before their court.

Tennessee authorizes more than 150 “specialty” license plates requested by private organizations, including the “Choose Life” plate. These plates contain a variety of political and sometimes controversial messages, including one featuring a Confederate flag requested by the Sons of Confederate Veterans. Despite its rather permissive approval practices, the Tennessee legislature refused to authorize a request for a pro-choice license plate, despite authorizing the “Choose Life” plate in the same proposed legislation.

The ACLU, a Planned Parenthood affiliate and three individuals filed suit claiming that Tennessee was violating their First Amendment rights by improperly discriminating against their views. The district court had little problem finding in their favor.

The district court decision was so clear-cut that the state declined to appeal. But an anti-abortion group that championed the “Choose Life” plate intervened and took the case to the Sixth Circuit. Reversing the district court ruling, Bush II appointee John Rogers, joined by Reagan appointee David Nelson, found that by making the “Choose Life” plates available, Tennessee was doing something the Supreme Court allows a state to do – namely, disseminate its own views, even if through private citizens acting voluntarily.

Boyce Martin, a Carter appointee, issued a dissent ridiculing the majority’s ruling, saying it reflected “a conclusion that only judges banished to our ivory towers and shut off from the real world could reach.” Examining Tennessee’s rather free-wheeling license approval practices, he found that the state clearly has been offering up specialty plates not to disseminate its own messages but rather to create a public forum facilitating private speech. And in such public forums, the Supreme Court says, the state may not discriminate against any group’s views.

Judge Martin proved his point ever-so-gently by noting, among other things, that Tennessee had approved a license plate bearing the logo of the University of Florida, the arch-rival of the state’s flagship university, the University of Tennessee. And just to be sure the point was not lost on anyone, he cited a website called Gator Hater, “run by University of Tennessee fans dedicated to their rivalry with the University of Florida, including news, jokes, and recipes for cooking alligator meat.”

In the Fourth Circuit case raising the same issue, which Judge Martin cited as precedent, Judge Wilkinson rhetorically asked what, besides favoring the “Choose Life” message, a state can do if it can allow citizens to use public forums to express their agreement, but not their disagreement, with supposedly official state views: “May a state issue plates touting one candidate, but not another?” By the logic of Judges Rogers and Nelson, the answer apparently is yes.

ACLU v. Bredesen, No. 04-6393, 2006 U.S. App. LEXIS 6603 (6th Cir. Mar. 17, 2006).