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January|February 2003
License to Shill By Katherine Marsh
Liberals' Labors Lost By Robert A. Burt
Seeds of Discord By Bruce Barcott
Vilnius Lost By Paul Jaskunas

License to Shill

Katherine Marsh on a license plate raising cash for pro-life causes—and the hackles of abortion rights activists.

By Katherine Marsh

At last fall's Christian Coalition gathering in Washington, D.C., Russell Amerling, a retired IRS tax collector, stood behind a table at the Choose Life, Inc., booth. He handed out fliers and sold "Choose Life" key chains, mugs, and sweatshirts as ram's horns trumpeted in the background, rallying the faithful.

The convention wasn't short on groups proclaiming the sanctity of life and the rights of the unborn, but Amerling's booth was on the front line of a new battle over abortion. The battle isn't over the traditionally big issues like access to clinics, gag rules that prohibit doctors from counseling patients about abortion, or the abortion drug RU-486. Instead, it's over something seemingly more mundane: a license plate. Amerling's real purpose was to drum up support for a bright yellow license plate that hung on the wall of his booth. The plate featured a childlike drawing of two smiling children, and bore the slogan "Choose Life."

The plate is currently available in a handful of states—including Florida, Mississippi, and Oklahoma—but Amerling, who is Choose Life's national publicity coordinator, is waging a state-by-state campaign to make the plate widely available. "My goal is to see it in every state," he said.

The plates do more than just carry a message. Brigitte Amiri, who has fought against the plates on behalf of the Center for Reproductive Law and Policy, a pro-choice advocacy group, worries that the plates are becoming a powerful fundraising tool for opponents of abortion. In Florida, a "Choose Life" plate costs a motorist an extra $20 a year. In just over two years, the plates have raised $1.2 million which Choose Life has funneled to crisis pregnancy centers that counsel women to put up their baby for adoption and against having abortions. Abortion rights advocates like Amiri have piled into court to challenge the plates, claiming that they violate the constitutional rights of pro-choice motorists.

The debate has reversed traditional roles. Abortion advocates who typically hold a liberal view about freedom of speech have found themselves in the unfamiliar position of trying to muffle the "Choose Life" plate, while pro-life groups that support gag rules and limits on what can be taught in sex education have remade themselves as champions of free expression.

The most hotly contested legal challenge is Henderson v. Stalder, Amiri's case against the Louisiana "Choose Life" plate. The CRLP scored an early victory when federal judge Stanwood Duval Jr. issued the plaintiffs a preliminary injunction blocking the production and distribution of the plates in August 2000. But last March, in a 2-1 decision, the Fifth Circuit Court of Appeals reversed Judge Duval's injunction, and in August, it denied the CRLP's request that the full court rehear the case. In September, the CRLP petitioned the United States Supreme Court to review the constitutionality of Louisiana's "Choose Life" license plate law. In December, the court declined to hear the case.

The "Choose Life" plate raises surprisingly complex legal issues for a crudely drawn 6-by-12-inch piece of metal. The Henderson case asks the Supreme Court to decide a question that has been on the minds of motorists ever since custom license plates first became popular in the late 1950s: Does the license plate express the view of the individual car owner, or of the state?

One day in 1996, Marion County Commissioner Randy Harris was driving on the highway near his home in Ocala, Fla., and found himself behind a car with a specialty license plate. Florida was the last state in the union to introduce uniform license plates (in 1918) and the first to introduce a specialty plate (in 1987) that raised money for a cause. Its first specialty plate depicted a shuttle zooming over the earth and commemorated the Challenger disaster (the shuttle had been launched from Cape Canaveral, on the state's Atlantic coast).

The Challenger plate cost motorists an additional $15 per year and, in its first five months, raised over $4 million for the Astronauts Memorial Foundation and the Technological Research and Development Authority, which, among other activities, sponsors education programs in Florida. Its success inspired a slew of other plates, supporting Boy Scouts, breast cancer survivors,the University of Florida, the Miami Heat, wildflowers, and a menagerie of animals from the panther to the large mouth bass. A disgruntled skipper caused a minor ruckus when he added the vanity message "EAT UMM" to a "Save the Manatee" plate, but in general the plates were uncontroversial. Wildflowers don't have many enemies.

But as Harris, a former plumber, drove behind one of these specialty plates, he had an idea. Why not create a plate to raise money to support adoption and thereby discourage abortion? One night soon after, he awoke at 4 a.m. with what his friend Russell Amerling, who is a lay pastor, describes as an almost biblical flash of inspiration: He would spearhead an effort to introduce a "Choose Life" plate in Florida. In February 1997, Harris created Choose Life, a nonprofit group, to lobby for the plate.

By the end of that month, Amerling claims, the group had collected 14,500 signatures from motorists—a lot more than the 10,000 signatures necessary—and submitted them to the state along with the $30,000 application fee. But in Florida, as in all of the states where the plates are being contested in court, the bill introducing the "Choose Life" plate needed to be approved by both the legislature and the governor. That year, it died in the senate transportation committee after being submitted too late in the session; the following year, then-Governor Lawton Chiles, a Democrat, vetoed it. Finally, in 1999, the "Choose Life" license plate bill passed both the house and senate and the newly elected Republican governor, Jeb Bush, signed it into law.

The first "Choose Life" plates were distributed in August 2000, but the plate came under attack in court before it arrived on a car. In late 1999, two pro-choice Florida citizens, Wayne Hildreth and Maria Wright, challenged it in court, asking that the "Choose Life" plate be banned until a pro-choice plate was also made available. Their argument, which was echoed in a number of subsequent cases, was that by allowing a "Choose Life" plate but not creating a pro-choice one, the state had engaged in "viewpoint discrimination." Viewpoint discrimination occurs when a state creates a forum in which individuals can express their views but then prevents one group from using it. This violates the Fourteenth Amendment, which prohibits states from denying individuals their constitutional rights, including the First Amendment right to free speech.

In order to claim viewpoint discrimination, Hildreth and Wright needed to convince the court that specialty license plates represented individual rather than state speech. If the state expresses its own viewpoint, for example in a state-funded anti-drug ad, it isn't obliged to present the opposing one. But if it opens a forum for individual speech, such as a public park, and then refuses to allow a certain group (supporters of marijuana legalization, say) to use it for a rally, it has committed viewpoint discrimination. Hildreth and Wright argued that by allowing any organization to apply for a specialty plate, the state had created a forum for individual speech. And by permitting Choose Life to have a plate but not providing a plate for those who wished to express the opposing position, the state had discriminated against the pro-choice view.

U.S. District Judge Ralph Nimmons Jr. had a problem with this argument. Ignoring the question of whether the "Choose Life" license plate represented state or individual speech, he asked how Hildreth and Wright could claim viewpoint discrimination when they had never applied for a pro-choice plate of their own. "Since the Plaintiffs have failed to even apply for the development of a speciality [sic] license plate which espouses their views under the Florida speciality [sic] plate statutory scheme, their claim is not ripe," he concluded.

A similar decision was handed down this past summer when Miami District Court Judge K. Michael Moore rejected the CRLP's arguments in another legal challenge to the "Choose Life" plate, not on the merits but because the plaintiffs had never applied for their own plate. The CRLP has appealed to the 11th Circuit, but the state is confident that Judge Moore's decision will be upheld. "If they'd applied for a plate [and been rejected] they'd have a different argument," claims Carol Licko, a lawyer for the state, "but they want the plate without doing what everyone else has done."

Abortion rights advocates challenging the plate in court differ about whether their ultimate goal is to get a pro-choice plate of their own. While Hildreth and Wright claimed they wanted to ban the "Choose Life" plate unless and until the state issued them a pro-choice plate, Barry Silver, a lawyer for the Florida chapter of the National Organization of Women, argues that there shouldn't be either type of plate. Silver, who is also in court trying to stop distribution of the plate, believes that it carries a confrontational political message that should not bear the imprimatur of the state. "We don't want our own license plate," he said, "It's like if someone gets 'Heil Hitler.' If someone else gets 'Preach Tolerance,' it won't do the trick."

In the beginning, the license plate was a tool of identification, not communication. The Commonwealth of Massachusetts issued the first uniform license plate in 1903. Before then, motorists had been issued registration numbers and made their own plates out of pieces of leather, wood, or metal. The new plates were made of porcelain and bore the words "Mass Automobile Register." They allowed the state to keep track of its growing number of motorists.

It wasn't long, however, before states began expressing themselves on their plates. In 1910, Michigan added the state's official seal to its plate; seven years later, Arizona embossed the head of a steer on its plate. The 1928 Massachusetts plate, which featured a codfish at the bottom to promote the commercial fishing industry, may have been the first plate to cause a stir. According to License Plates of the United States: A Pictorial History by the collector James K. Fox, local fishermen felt that it was bad luck to portray the fish swimming away from the word "MASS" and demanded that the plate be redesigned (it was).

In the late 1920s, state slogans like "Potatoes" (Idaho) and "For Progress" (Kentucky) began appearing on plates. The first major license plate controversy was ignited in 1969, when New Hampshire decided to put its state motto, "Live Free or Die," on its license plates. The phrase is attributed to General John Stark, a Revolutionary War hero and New Hampshire native, and was adopted as the state motto shortly before the end of World War II.

George Maynard, a Jehovah's Witness, happened to think that life was more precious than freedom, and he found his state's slogan repugnant to his beliefs. In protest, he cut the words "or Die" off his plate, and taped over the words "Live Free." Claiming that he had violated a statute that made it a misdemeanor to obscure the motto, the state took Maynard to court. In 1977, the U.S. Supreme Court ruled that the state could not force Maynard to carry the "Live Free or Die" slogan because doing so would violate his First Amendment rights. The court felt that the slogan was an ideological message, not a neutral slogan, and that New Hampshire was overstepping its bounds by forcing Maynard to display it on his private property.

Some slogans remain controversial. Plates in the District of Columbia bear the words "Taxation Without Representation," protesting the District's lack of full congressional representation. But in D.C., the slogan is optional. President Clinton chose to put a plate with the slogan on the presidential limo, but President Bush, upon taking office, had it removed. License plates, he said, are no place to make "a political statement."

Plates are still used for their original purpose of tracking individuals, but over the years they have evolved into something closer to their once-distant relative, the bumper sticker. They have become a way for Americans, who spend an average of 56 minutes a day in their cars, to express their identity.

The first time a state allowed individuals to express themselves through their license plates was in 1937, when Connecticut rewarded safe drivers by allowing them to choose the letters on their plates. But it wasn't until the late 1950s and early 1960s that vanity plates started to become widely available. Over the years, vanity-plate dustups have occurred throughout the country.

Virginia originally denied an application for a plate that read "GODZGUD" and then ultimately allowed it. A woman in Missouri applied for a plate that read "ARYAN-1" in 1983 and the plate has been in court just about ever since. In a series of other cases, courts have permitted states' removal of plates on the grounds that instead of expressing an individual's viewpoint, they present obscene, racially offensive, or sexually inappropriate speech. License plates in these categories include "SHTHPNS" (Vermont), "REDSKINS" (Utah), and "EZ LAY" (California).

Patrolling the propriety of vanity plates is tricky; in general, states aren't quite sure what limits they can put on individual speech. In Florida, where until recently a single objection could get a plate removed from the road, "IH8MYX" has been recalled while "ATHEIST" was recalled and then reinstated. "We try to steer clear of George Carlin's seven dirty words," said Robert Sanchez, a spokesperson for the Florida Department of Highway Safety and Motor Vehicles and a member of the department's recently created personalized license plate review board. "But it's an inexact science."

The big battle these days has moved from vanity plates to specialty plates. Since Florida introduced the Challenger plate in 1987, specialty plates have proliferated across the country. Maryland currently holds the record for the most specialty plates (366, including plates honoring pets, bowling, and dental hygiene) followed by Virginia (148, including an NRA plate) and South Carolina (138, including a shag dance plate). "People need to stand out in a sea of regular plates," says Richard Dragon, the publications editor of the Automobile License Plate Collectors Association.

In 1999, when the "Choose Life" bill passed the Louisiana legislature, Russell Henderson, a Louisiana lobbyist who had worked on pro-choice issues since 1987, didn't pay much attention. He already had his hands full trying to keep clinics open in a state where 92 percent of the counties (or parishes, as they're known in Louisiana) lack abortion providers. But shortly after the bill was passed, he was deluged by phone calls from people in the pro-choice community. The following year, he became the lead plaintiff in the CRLP's suit to stop the Louisiana "Choose Life" plate, which features a pelican (the state bird) holding a baby blanket.

The CRLP alleged that Louisiana had violated the Establishment Clause of the Constitution, which prohibits excessive entanglement between the state and religion, by appointing groups with fundamentalist Christian values like the American Family Association to help distribute the funds raised by the plate. It also charged Louisiana with viewpoint discrimination. Lawyers for the State of Louisiana responded by claiming that the "Choose Life" plate represented state speech (the opposite of the position taken by the State of Florida) and that the state was not required to be viewpoint neutral. "Because the legislature decides what goes on the plates and not private citizens, it's state speech," said Roy Mongrue Jr., an assistant attorney general of Louisiana. Though specialty plates are approved by the DMV in some states, in most states the legislature has a say in the decision as well.

The question whether license plates represent state speech has come up elsewhere. In 2001, the Sons of Confederate Veterans claimed that the State of Virginia had committed viewpoint discrimination by refusing to allow them to include a Confederate flag on their specialty license plate. Last April, the Fourth Circuit ruled in their favor, arguing that the "plates authorized for private organizations under Virginia's special license plate program constitute private, rather than government, speech."

Judge Duval, ruling in New Orleans in August 2000, was not convinced by the CRLP's Establishment Clause claim after concluding that the funds raised by purchases of the plates would not be delegated in a way that advanced religion. But he did find convincing the argument about viewpoint discrimination. After deciding that Louisiana's specialty license plate program had created a forum for individual speech, he took direct aim at Judge Nimmons's ruling that the claim of the Hildreth plaintiffs was not ripe because they had not applied for their own plate. Stanwood disagreed, arguing that "once a forum has been created that allows viewpoint discrimination, it is unconstitutional from the moment the discriminatory forum is created. Thus the controversy appears to be ripe for adjudication."

Many legal experts agree that Judge Duval was correct in interpreting Louisiana's specialty license plates as individual rather than state speech. "The text of the bill doesn't say that the state adopts this as a message," says Leslie Gielow Jacobs, a professor at the University of the Pacific McGeorge School of Law who has written about the specialty license plate cases. "If they wanted it to be state speech it should affirmatively be there."

But the more controversial aspect of Judge Duval's ruling was its support of the claim that the state had committed viewpoint discrimination regardless of whether the plaintiffs had applied for their own plate. In March 2002, in a 2-1 decision written by Judge William Barbour Jr., the Fifth Circuit disagreed with Judge Duval's ruling. Employing a similar logic to the ruling in Hildreth, the court sidestepped the question of whether the plates constituted state or individual speech and instead ruled that Henderson and his fellow plaintiffs failed to prove that they had suffered an injury that could be redressed by the court.

The Fifth Circuit decision, like the Hildreth decision in Florida, suggested that if the plaintiffs felt they had suffered viewpoint discrimination, they should have applied for their own plate, not taken the "Choose Life" plate to court. It's an argument that makes sense to some experts. "On viewpoint discrimination, it sounds like what the [Fifth Circuit] did is rational," says Kent Greenawalt, a professor of constitutional law at Columbia Law School. "We don't know that it's viewpoint discrimination if the state only has the potentiality of not giving [the plaintiffs a plate]."

But Amiri points to Judge W. Eugene Davis's dissent in the Louisiana case. Davis argued that the plaintiffs had grounds to sue because the state created a platform for pro-life speakers but not pro-choice ones, discriminating against the free speech rights of the plaintiffs. Keith Werhan, a professor of constitutional law at Tulane University, agrees with this interpretation. "Viewpoint discrimination seems clear," he said, "It's not the responsibility on the individual's part to take steps to get permission to speak.... If the state allows some viewpoints to have access, they're constitutionally obliged to provide the opposing view."

Few experts were surprised when the Supreme Court declined to review the Fifth Circuit's decision last fall. "The court usually avoids making unnecessary decisions," says Bruce Johnson, a First Amendment lawyer based in Seattle. "Courts are inclined to punt on things like this because of the complicated constitutional issues."

Professor Werhan admits that it would have been helpful to the plaintiffs if they had applied for their own plate and been rejected. Although abortion rights advocates have not introduced a free-standing "Choose Choice" plate bill, two years ago Louisiana State Senator Diana Bajoie tacked an amendment adding a "Choose Choice" plate to Louisiana's "Choose Life" plate legislation. The amendment passed the senate, but failed in the more conservative house. Amiri says that her clients are divided about whether they want a pro-choice plate, and, like Silver, she seems to lean against the idea. "The entire statute is riddled with constitutional defects; obtaining a plate of our 'own' would not cure those defects," she explained.

As Amerling pushes to get "Choose Life" plates passed in as many states as possible, abortion rights advocates continue to go to court, as they are doing in a case filed by Planned Parenthood against South Carolina's proposed "Choose Life" plate. It may be possible for abortion rights advocates to convince the court that they need their own plate; it may be impossible for them to get the "Choose Life" plate off the road. "Once the state goes down the avenue of allowing these plates, you can't take it off people's cars," Johnson said.

Yet other forces may be working in favor of those who believe that political messages don't belong on license plates. It may be security concerns that ultimately push license plates back toward their original purpose, keeping track of individuals. Members of law enforcement have recently been vocal about their dislike of specialty plates. "Cops hate specialty plates," said Thomson Murray, the author of The Official License Plate Book. "They're fun to look at but they're difficult to read. As a fad, I think they're peaking in certain states."

Controversies continue to erupt over plates like the Sons of Confederate Veterans and "Choose Life" plates, and some states, like California, are considering moving the approval process out of the legislature and entrusting it to a more neutral body like the DMV. Others have made the application process for new plates tougher. Three years ago, Florida raised the number of signatures required from 10,000 to 15,000 and upped the application fee from $30,000 to $60,000. But new plates keep on coming. Last fall, when Jeb Bush was presented with designs for three new specialty plates, the Florida governor complained that he was suffering from "tag fatigue."

Katherine Marsh last wrote for Legal Affairs about New York's kosher laws. She lives in Washington, D.C.

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