The problem, guys, is that your assumptions are incorrect. In reality, the state created a platform for the speech of one group based on their point of view, but denied it entirely to another group of people based on their point of view. It is as if South Carolina started up its own news station and invited anti-abortion speakers to come talk on the air, but denied pro-choice speakers the opportunity to ever speak on the broadcasts.
Under the First Amendment, the government must at all times be content-neutral in its regulations of citizens’ speach. In providing a forum for one p.o.v. and denying it to the opposing view, South Carolina abandoned the principle of content neutrality. Therefore, the judge correctly decided that the “Choose Life” plate is unconstitutional.
As for the suggestion that one can simply phone a legislator and obtain a license plate of one’s own design and message, you must be kidding. Moreover, the more important principle here ought to be obvious: It is unlawful and abhorrent for the state to require its citizens to go beg for legislation to let them speak their mind in a public forum.
BTW, december, this is not a case of government speech. If the South Carolina legislature wants to take a rhetorical position on abortion, it certainly can do so. What the state cannot do is regulate the free speech of its citizens. By creating a forum for one group and not the other, it is most certainly regulating the latter group’s speech.
But I don’t think license plates are considered a simple case of private speech are they? If so why should they state have the right to put any restriction on license plates (apart from things like public decency standards). If someone wants to put “Frodo Lives” on his license plate he/she should be able to. But that’s not how it works AFAIK and that’s not what this ruling says.
And does this ruling apply ruling to every single license plate message including say against racial discrmination. Are such license plates discrminating against the views of the KKK?
I think it is funny when pro-choice people go around disrupting rallies and destroying demonstrations and banners by pro-life people while shouting rubbish about being for free choice and free speech. I don’t think I’ve ever laughed as hard as I did when the Berkeley Republicans started crying about their free speech being violated… it is just the perfect twist of irony, and it goes both ways.
Almost as funny as the “Say No To Sex With Pro-Lifers” bumpersticker, which defies the concept of “Por-CHOICE” to the extent it makes my head hurt.
DDG, **Gairloch, **yes, the state has done something we all disapprove of. But, there are also two separate questions for debate:
– Is the state’s action unconstitutional?
– Does it violate the free speech provision of the 1st Amendment?
I appreciate minty green responding to these questions, although I do not like his answers.
I have several problems with this statement:[ol][li]Are there SCOTUS decisions supporting it? It’s not what the 1st Amendment says.[]It’s an impossible standard. There are so many conceivable POVs that balance is impossible. Furthermore, balance is in the eye of the beholder. []That standard is violated all the time. E.g., I think NPR has been pretty close to your hypothetical one-sided state news station. They have had a lot more pro-choice speakers than pro-life speakers and a higher percentage of leftists in general (although IMHO they are now more balanced than they were a few years ago.)Another example is the Presidential debates, which excluded minor parties. IIRC that structure was taken to court and approved. [/ol][/li][quote]
BTW, december, this is not a case of government speech. If the South Carolina legislature wants to take a rhetorical position on abortion, it certainly can do so. What the state cannot do is regulate the free speech of its citizens. By creating a forum for one group and not the other, it is most certainly regulating the latter group’s speech.
[/QUOTE]
That’s an excellent argument, and I suppose it may be legally correct. When SCOTUS “extended the 1st Amendment to the states,” that also meant that the federal judiciary had power over the states in those areas.
Still, the idea of barring speech in the name of free speech bugs me. Taken to the extreme, the federal courts could bar all speech in order to create perfect balance, therefore perfect free speech.
And, DDG, the problem isn’t whether undoing this law would still leave adequate ways to get “choose life” on license plates. I more-or-less agree with you that it would do so. My complaint is that the 1st Amendment doesn’t empower the federal government to decide what “enough free speech” is. And it certainly doesn’t order them to do so. On the contrary, it instructs them to keep their hands off the content of speech. And, the fact that Judge Bertelsman igored a circuit court decision in order to hear the case makes his legislating from the bench even more blatant.
If the federal judiciary is now has the power and the obligation to decide how much free speech is enough, than they have become the censors Orwell warned us about.
It’s not a question of “private speech” on a license plate. The state decides what is an acceptable message for a license plate. You go down to the SC DMV and you may choose any one of these state-approved designs (which, you will note, does not now include the “Choose Life” design). You can’t just tell the state to give you a “George Bush Sucks” plate, or a “Rush is Right” plate. You get to choose from certain state-approved messages, and that’s the end of the discussion.
(Note to bigots: South Carolina thoughtfully offers you two plate designs to express your contempt for other races: the Sons of Confederate Veterans plate with the always-attractive Confederate flag, plus–for those of you who prefer to keep your bigotry a little more subtle–the Bob Jones University plate. And there ain’t no plates for those uppity minorities, either!)
Kindly note that the suggestion that the state might offer a plates supporting a variety of positions on controversial issues might well be constitutional – I’d hate to have either side in a court case on such a hypothetical situation – but that for it to make plates available to those supporting only one side on a controversial issue is in fact enabling the free speech of one side and by implication restricting that of another – one cannot drive down the highway in S.C. and by sampling plates determine how many support Pro-Abortion-Regulation and how many support Anti-Abortion-Regulation (to avoid the self-serving monikers of the two sides) by looking at plates – only how many take the first stance. Therein lies government endorsement of an issue.
The problem is not in whether S.C. may or may not allow license plates taking a stand on an issue – it lies in the fact that in the case as it exists it allowed plates supporting one side only.
Raise all the hypotheticals you like, but courts are forced to deal with cases as they arise, not with what might have happened if Bill Gates had made Windows freeware or Bill Clinton had decided to make the State of the Union speech in the nude.
Oodles and oodles of Supreme Court decisions say that a government regulation of private speech must be content-neutral. You may start your reading here at footnote 79.
Nonsense. The state may neither favor nor disfavor any of them. Simple as that.
The First Amendment does not require “balance.” It requires neutrality. You know, like Switzerland in WWII: “Sorry, you guys go work this out for yourselves. We aren’t getting involved.”
The First Amendment is a restriction on the government. Presidential debates are not sponsored by the government. They are sponsored by a private entity or entities, who may invite or disinvite whoever they want.
But that is NOT NOT NOT what the court did. The court said the STATE cannot deny people the right to freely express their opinions in the public forum opened by the state. What the state did here is despicable: It invited people to express their opinion on a topic, while prohibiting people to express a contrary opinion. Come on, how reprehensible is that?
“You get to choose from certain state-approved messages, and that’s the end of the discussion.”
I’m kinda confused. Are you arguing against the whole system of the state deciding what can go on a license plate or not? Or are you saying that the state has this right but must be fair-minded in specific issues like abortion? The first I could agree with. The second doesn’t make much sense.
“Therein lies government endorsement of an issue.”
But that’s inevitable no matter how many license plates the government issues. There will be some possible view which will be excluded. And it’s true for any license plate that the government issues.
So your argument seems to be that the government should either not issue any special license plates at all or that it should allow any kind of legal message on any issue. That’s not what the judge is saying AFAIK.
It’s not simply about “exclusion.” There is no constitutonal violation if all viewpoints are exluded from official sanction. It’s only when the state opens some viewpoints and forecloses others from expression in the same forum that you have a problem.
OK but I don’t think the judge has struck down the entire license-plate system in the state. He seems to be saying that the government does have the right to choose certain messages but only if they aren’t unfair in some arbitrarily defined manner. That doesn’t make much sense.
One wonders what might be the outcome of New Hampshire’s placing the state motto, “Live Free or Die,” on their plates? Might they be subject to a suit from someone who wants a third alternative?
Where are you getting that the judge “seems to be saying” anything? I haven’t seen a link to the opinion anywhere, and there’s nothing in the story indicating that the judge decided the “Choose Life” message was “unfair.”
“The plates, which include the slogan “Choose Life,” violate the First Amendment because it give anti-abortion advocates a forum to express their beliefs, while abortion rights supports have no license plate of their own, Senior U.S. District Judge William Bertelsman ruled last week.”
Well “unfair” was my own word but that seems to be the gist of it. It’s unfair that the anti-abortion people get their plates while the abortion rights people don’t. The problem is that even if you had a second plate there are any number of potential messages about abortion which are still excluded.
Those are not the words of the judge. They are the description of a reporter. If you want to know the legal bases of the decision, one should stick to the judge’s actual opinion. And barring anything in the opinion being said about how the whole thing is “unfair,” you have no basis to criticize the judge for such reasoning.
Well I am assuming the report is accurate. Sure a report about a court decision is a “basis” to criticize it though of course not as good as the actual opinion.
Thanks for the info, minty. I still have a few questions or objections to your response.
I don’t understand how you distinguish between balance and neutrality. Many speakers on National Public Radio express particular POVs; these speakers are not neutral at all. ISTM that the best NPR can aim for is balance.
Not quite. The court said the state cannot permit citizens to express a POV in a certain manner, because the opposition had a lesser right to do so. They took away an opportunity to express certain opinions. If the court had ruled that the pro-life plates were OK, but pro-choice plates had to be equally available, that would have been quite different IMHO.
Incidentally, the “choose life” message doesn’t necessarily contradict the pro-choice position. Many pro-choicers advocate abortion being “legal and rare.” These plates can be read as encouraging women not to have abortions, rather than as encouraging that abortions be made illegal.
It’s reprehensible. But, Judge Bertelsman isn’t supposed to be Superman, with the power to correct reprehensible behavior wherever he finds it.
P.S. I don’t think the pro-choice plaintiffs ever wanted their own licence plate message. What would it say? Keep abortion legal? No, because that’s not a current issue within the state. “Pro-choice” would be possible, but it lacks punch.
My point is, I don’t think this case was ever really about equal access to messages. Planned Parenthood didn’t ask the court for a remedy of making their preferred message equally available. I think this case was an effort by Planned Parenthood to restrict a message they don’t like. In short, I think this case was really about censorship from the beginning.
Those speakers are not the government. They are private people speaking on a government-sponsored forum. If the government starts telling people they can’t talk on NPR due to the content of their speech, then we have a neutrality violation, but not unless the government starts deciding what people can say on that forum.
And boy, you think “neutrality” is a difficult standard? Try “balance.” We’d never hear the end of that one. As CP correctly points out, there are any number of positions people hold when it comes to even a subject as discrete as abortion. How the hell is the state going to stay “balanced” when most people have positions like "I’m against abortion if it’s like way late in the pregnancy, unless it’s medically necessary or really psychologically necessary, but minors should have to get their parents’ permission or a judge’s approval, plus the father should always have to consent unless it’s rape or incest . . . "? That’s just impossible. Neutralits is completely simple by comparison: Stay the heck out of the whole mess, and if you create a forum for people to speak their minds, you can’t regulate that forum based on what they want to say.
I wouldn’t jump to that conclusion without reading the opinion. Do you have a link, by any chance?
My understanding is that what the court did was to strike down a particular statute–the one creating the Choose Life license plates. It apparently did so on the rationale that the state cannot create a public forum for the expression of private speech and also regulate what speech is allowed based on the content of that speech. The only thing that’s shut down is the Choose Life statute. The court’s opinion (as described) does not not require the state to close the public forum of license plate speech. If the state chooses, it could pass another law letting people say whatever they want on their plates, and there would be no problem under the court’s reasoning as I understand it.
There’s no constitutional right to be able to say anything at all via your licence plate. But if the state decides to let you say stuff on your plate, it has to let you say whatever you want without regard to the contents.
Of course not. He’s merely charged with upholding the Constitution of the United States. You got a problem with that?
BTW I would like to get at the issue of whether the license plates are a government message or a government “forum” for messages. If I understand it correctly there are potential problems only for the latter.
But I am not sure that a license-plate message is a forum in any meaningful sense of the word. A forum implies a place where the participants get to shape the message. Here they can only choose to display messages put out by the government.
How is this different from posters put out by government agencies which I assume aren’t governed by requirements of neutrality?
