A ‘Barkingly’ Unconstitutional Proposal

Photo illustration by Paul Rosales

Photo illustration by Paul Rosales

Print More

The idea of making California motorists’ license plates electronic mini-billboards for advertising to raise cash for empty state coffers has proceeded so far in the Legislature that one’s left to conclude that if the state itself is not bankrupt, the quality of bill analysis under the Capitol dome may be.

Senate Bill 1453 proposes a study of the feasibility of putting commercial ads on license plates. The proposal is barkingly unconstitutional. And its First Amendment problem is not simply that, having created a space for commercial messages, the state could probably exclude none but the frankly indecent.

That prospect was identified in the bill analysis of the Senate Transportation Committee almost three months ago, but that warning didn’t prevent the committee from passing the bill on a 7-0 vote, or the Senate from passing it on a 25-0 vote. The bill by Sen. Curren D. Price, a Los Angeles Democrat, now sits in the Assembly Appropriations Committee, one hearing and one floor vote shy of going to the governor.

But there is a far more fundamental First Amendment problem in the notion of requiring drivers to display messages they do not wish to be associated with. Compelled speech is the reverse of censorship and just as repugnant to the principle of free speech.

Just as the government cannot keep citizens from expressing their views, it cannot force them into mouthing or associating themselves with views they do not agree with. Such a proposal is a nonstarter under one of the two leading U.S. Supreme Court cases dealing with the phenomenon of compelled speech.

In Wooley v. Maynard, 430 U.S. 705 (1972), the court decided, 7-2, that under the First Amendment, the State of New Hampshire could not punish a Jehovah’s Witness couple who, objecting to the thrust of the state’s motto, repeatedly covered it with tape on their car’s license plate — criminal offenses for which Mr. Maynard served a 15-day jail sentence. Chief Justice Warren Burger wrote for the court:

New Hampshire’s statute in effect requires that appellees use their private property as a “mobile billboard” for the State’s ideological message — or suffer a penalty, as Maynard already has. As a condition to driving an automobile — a virtual necessity for most Americans — the Maynards must display “Live Free or Die” to hundreds of people each day. The fact that most individuals agree with the thrust of New Hampshire’s motto is not the test; most Americans also find the flag salute acceptable. The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.

Identifying the Maynards’ interests as implicating First Amendment protections does not end our inquiry, however. We must also determine whether the State’s countervailing interest is sufficiently compelling to justify requiring appellees to display the state motto on their license plates. The two interests advanced by the State are that display of the motto (1) facilitates the identification of passenger vehicles, and (2) promotes appreciation of history, individualism, and state pride.

The State first points out that passenger vehicles, but not commercial, trailer, or other vehicles are required to display the state motto. Thus, the argument proceeds, officers of the law are more easily able to determine whether passenger vehicles are carrying the proper plates. However, the record here reveals that New Hampshire passenger license plates normally consist of a specific configuration of letters and numbers, which makes them readily distinguishable from other types of plates, even without reference to the state motto. …

The State’s second claimed interest is not ideologically neutral. The State is seeking to communicate to others an official view as to proper appreciation of history, state pride, and individualism. Of course, the State may legitimately pursue such interests in any number of ways. However, where the State’s interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual’s First Amendment right to avoid becoming the courier for such message. We conclude that the State of New Hampshire may not require appellees to display the state motto upon their vehicle license plates.

While it’s obvious that compelling drivers to display ads for gasoline, liquor or hamburgers, for example, is not the same as forcing them to disseminate an ideological slogan, it’s also true that each of those products has a sizeable minority of the public with beliefs hostile to their promotion, and that advertising or its revenue has nothing like the state interests that, for all their legitimacy, were found insufficient in Wooley.

SB 1453 needs constitutional review in a judiciary committee before more time and energy and, yes, state funds are spent on it.

As the flinty New Englander says in the old joke, “You can’t get there from here.”

Terry Francke is Voice of OC’s open government consultant and general counsel for Californians Aware. Please contact him directly at terry@calaware.org. And add your voice with a letter to the editor.


Comments are closed.