FREE SPEECH — 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. SB 1453's 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 obscene.
Long before that question would ariseright at the conceptual stage, actuallythe notion of requiring drivers to display messages they do not wish to be associated with is a non-starter 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, "Live Free or Die," 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
– or suffer a penalty, as Maynard already has. As a condition to driving
an automobile – a virtual necessity for most Americans – the Maynards
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
from the majority and to refuse to foster, in the way New Hampshire
an idea they find morally objectionable.
Identifying the Maynards' interests as implicating First
does not end our inquiry however. We must also determine whether the
countervailing interest is sufficiently compelling to justify requiring
appellees to display the state motto on their license plates. The two
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
trailer, or other vehicles are required to display the state motto.
the argument proceeds, officers of the law are more easily able to
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
to the state motto. Even were we to credit the State's reasons and "even
though the governmental purpose be legitimate and substantial, that
cannot be pursued by means that broadly stifle fundamental personal
when the end can be more narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less drastic means for
the same basic purpose."
The State's second claimed interest is not ideologically neutral.
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.
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
to display the state motto upon their vehicle license plates.
While it's obvious that compelling a driver to display ads for gasoline, liquor or hamburgers, for example, is not the same as forcing them to promote 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 has been referred only to the transportation policy committees of the Senate and Assembly. It needs constitutional review in a judiciary committee soon, 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."