Joan Bertin [Executive Director, National Coalition Against Censorship]: "Cases involving messages on license plates raise a potpourri of questions with important First Amendment implications.

The easiest cases are those in which the government itself creates a plate with a religious message. For example, South Carolina's legislative decision to issue "I Believe" license plates was recently held unconstitutional under the Establishment Clause, because it constituted overt promotion of religion by the state.

Few cases are so clear. In most, the court must decide whether the message on the license plate is government or private speech. If it is government speech, free speech considerations do not apply since the government controls the message. If it is private speech, First Amendment protections apply to the speaker, and the question is whether the government can regulate the content of the message. The law has evolved mainly out of conflicts over "Choose Life" plates, sometimes when the state has created such plates, and sometimes when it has refused to.

The Sixth Circuit has held that "specialty" license plates issued by the state at the request of private groups are government speech whose message can be controlled by the government. As a result, the court rejected a challenge to Tennessee's "Choose Life" plates, relying in part on a 1991 Supreme Court decision upholding a government policy to promote childbirth which contained a restriction on abortion-related speech.

In contrast, most other courts have concluded that specialty message plates represent private, not government, speech, but they have analyzed the cases under a variety of theories. The Ninth Circuit held that Arizona's refusal to issue a specialty "Choose Life" plate was impermissible viewpoint discrimination based on the state's hostility to the message or its desire to avoid controversy. The Eighth Circuit likewise concluded that a private group had a right to a specialty "Choose Life" plate under Missouri's statutory system, but did so by invalidating the statute because it gave state officials discretion to decide whether or not to issue the plate; the court said such an unlimited grant of discretion could result in viewpoint discrimination. The Fifth Circuit employed another route to reject a challenge to Louisiana's "Choose Life" plate: it held that the challenge was barred by the Tax Injunction Act. In all these cases, the right to the "Choose Life" license plate was upheld.

Only two circuits have invalidated "Choose Life" plates, but they also reached the same result by different means. The Seventh Circuit upheld Illinois' refusal to issue "Choose Life" plates, finding that, although private speech was involved, the decision was a reasonable content-based, viewpoint neutral rule, because the state excluded the whole subject of abortion from its specialty plates. The Fourth Circuit struck down a South Carolina statute authorizing "Choose Life" plates, which the court characterized as a mixture of public and private speech, the state creating the plate and the individual purchasing it. The principal opinion (two judges concurred in the result) concluded that the government had created a limited public forum for expression and that it engaged in viewpoint discrimination by favoring one view and discriminating against others.

In another Fourth Circuit decision involving a request for a plate displaying a Confederate flag, the court held that the message was private speech which was protected, and that the state's refusal to issue the plate was impermissible viewpoint discrimination. The two Fourth Circuit decisions, along with the Ninth Circuit ruling on "Choose Life" plates, reveal how application of viewpoint discrimination analysis can result in a decision permitting expression of a controversial view, but can also yield the opposite result if other views are not given equal voice.

Confused yet? If so, it's entirely understandable. Given the varied factual situations, the lack of consensus in the courts, and the likelihood of continued litigation, query whether the income generated by specialty license plates exceeds the costs of defending them. It just might be cheaper for states to eliminate message license plates altogether, and let people express themselves with bumper stickers."