By Kent Willis, Executive Director
Last spring when then-Governor Tim Kaine signed a bill authorizing DMV to issue a “Choose Life” specialty license plate, he warned Virginia’s legislators that they had no choice but to pass a “pro-choice” license plate bill should one be introduced in the next legislative session.
Well, the next session is here, and we have those bills (HB 1108 and  SB 704, authorizing a “Trust Women, Respect Choice” specialty license plate).
At first glance, Kaine’s admonition seemed to be about fair play regarding the perennially controversial subject of reproductive rights.  But the real issue here is the constitutional principle of free speech, not the pro-choice message versus anti-choice message.  And, the real mess in which legislators now find themselves involves the entire procedure for issuing specialty license plates in Virginia.
Specialty plates require an act of the General Assembly.   Unlike personal vanity plates, where a driver creates a unique word or phrase for his or her own individual license plate and then pays DMV to produce it, each specialty plate must be approved by the House and Senate and signed by Governor, just like any other law.  Plates are then produced in large quantities for the public to buy.
There are two problems with this--a practical one and a constitutional one.
First, it makes no sense for legislators to waste their time debating and approving or disapproving specialty license plates with “UVA Alumnus” or “Friend of the Shenandoah Valley” on it.  If DMV can be entrusted to administer the vanity plate program, then it can certainly manage the specialty plate program.
Second, the specialty license plate approval process in Virginia is clearly unconstitutional.  The Fourth Circuit Court of Appeals has ruled in separate cases originating in Virginia and South Carolina that specialty license plates are a kind of public forum, that is, an opportunity for individuals or groups to express their views free of unreasonable censorship.  This means that, similar to a book, or movie, or speech in a park, the views expressed on a specialty license cannot be dictated by the government.
Yet when it comes to the approval of specialty license plates, legislators decide by majority vote which views are allowed and which are not. The process is inherently censorial and clearly illegal.
I have heard people ask: “If the General Assembly approves all specialty license plates submitted for review, what difference does it make that they are subjected to a vote?”  Well, there is no guarantee that the General Assembly will approve every plate. In fact, the General Assembly voted to remove the Confederate flag symbol from a “Sons of Confederate Veterans” plate several years ago, a debate that threatened approval of the plate altogether.  (The Fourth Circuit later ruled that it was unconstitutional to remove the flag and forced the state to restore it to the plate.)
Second, I am not confident at all that HB 1108 will pass the General Assembly right now.  After all, this will require legislators, particularly in the House, to put aside strongly held individual positions against reproductive rights in favor of the First Amendment principle of free speech.  That, I can tell you from experience, will be hard for them to do.
If HB 1108/SB 704 passes, then the immediate legal crisis is avoided, but only until the next controversial plate is introduced.  If it fails, then a lawsuit will almost certainly be filed claiming that the First Amendment gives the pro-choice supporters the same right to a license plate as the anti-choice supporters.
There is little doubt how that case would come out.  Just two years ago, the South Carolina legislature passed an anti-choice plate but not a pro-choice plate.  The Fourth Circuit ruled that the South Carolina legislature had violated the First Amendment.
There’s a way to avoid the potential legal entanglements of a yes vote for an anti-choice  plate and a no vote for a pro-choice plate, as well as all such controversies in the future: Hand over the process to DMV, which will administer the program in a viewpoint neutral way.
So whenever 350 people (the threshold number required by Virginia law) want a license plate that reads “Gun Control Now,” they get it.  And whenever 350 people want a “Guns are a Constitutional Right” plate, they get it.  Same with “Abolish the Death Penalty” and “The Death Penalty Saves Lives.”
There will never be a General Assembly where a majority is both in favor of gun control and of the unfettered right to own a gun.  And there will never be a General Assembly where a majority is both for and against the death penalty.  So, unless legislators rise above their own views on these controversial issues, one side of the argument will have an opportunity to express itself on a license plate, and the other will not.  That does not sound like a public forum to me.
Right now, pro-life advocates have a license plate, and pro-choice advocates don’t.   That is certainly not a public forum.  If the General Assembly passes HB 1108, we’re okay for the moment, but we’ll still be waiting for the next specially plate battle.  If the bill fails, litigation follows.
Moving the specialty license plate process to DMV will save time, allowing legislators to focus their energies on more important matters, and it will create a process for issuing license plates that is consistent with the free speech clause of the Constitution.
Is there any reason not to do this?