By Kent Willis, Executive Director, ACLU of Virginia
In a legislative session where an unprecedented number of anti-reproductive rights bills has been introduced and supported, a strong majority of lawmakers is voting to authorize a ‘Choose Life’ special license plate. The ‘Choose Life’ bill not only creates a new license plate, but it limits the use of the proceeds from the sale of the plates to organizations that do not acknowledge abortion as an option for any pregnant woman, regardless of the circumstances.
In flocking together to show off their anti-choice feathers, legislators have entirely ignored the fact that the issue before them is free speech, not reproductive rights. And in doing so, they are most certainly dragging the state into a costly legal showdown that has already been decided against them.
It all started in 2000, when the General Assembly acted on a bill to create a special plate for the Sons of Confederate Veterans that included a depiction of the Confederate battle flag. The measure passed, but only after it was amended to remove the flag from the plate. SCV sued, claiming that the state had violated the First Amendment by censoring their message.
For the court, the key legal task was to define what kind of speech takes place on a special license plate. Is the plate a place for the government to disseminate its own message to the public? Or is it a place where private speech-- that is, the speech of the person to whom the plate is issued-- is expressed? The Fourth Circuit Court of Appeals decided that plates produced for individuals to express their views on a social or political matters are clearly the latter.
In the court’s jargon, these license plates are a “public forum for private speech.” This means that the plates are like a public park or sidewalk. Parks and sidewalks are created, owned and maintained by the government, but the public has access to them and can use them for demonstrations or other means of expression.
The rules for use of a public forum are clear. The government must be absolutely neutral when it comes to deciding who gets to use the forum and who does not. Whether you are pro-war or anti-war, pro-choice or anti-choice, Democrat or Republican, the KKK or the League of Women Voters, you must be given the exact same access to a public forum. That is the essence of free speech.
It should go without saying that the government may not make access to a public forum contingent on the vote of a legislative body. If Congress had the right to vote on every request to use the mall in D.C. for a march, the majority view would decide who gets to use it and who does not. Were that the case, Martin Luther King may never have given his “I Have a Dream” speech, and few would recall that there was opposition to the war in Vietnam.
Following the legal precedent set by the Fourth Circuit Court of Appeals in the SCV case, a federal court in South Carolina recently ruled that the ‘Choose Life’ plate approved by that state’s General Assembly violated the free speech clause. It was not that that South Carolina had censored speech, as Virginia had done in removing the Confederate flag, but that they had favored one viewpoint on reproductive freedom in a public forum.
Despite losing the SCV case last year and despite the findings in the South Carolina “Choose Life” case (which is now on appeal to the same higher court that issued the SCV ruling), Virginia’s lawmakers seem locked in on making the same mistakes all over again.
There is an easy -- and right -- way out of this mess. The Virginia General Assembly should simply move the special license plate program to the Division of Motor Vehicles and have it administered on a content-neutral basis. In the same way that a city agency issues
permits to groups to use parks without regard to the groups’ ideological views, the state can authorize DMV to issue special license plates without regard to the applicant’s message.
In other words, every group that meets the requirements for having a special license plate gets one. If the pro-choice people can round up the requisite 350 prepaid applications for a pro-choice plate, they get one. If the anti-choice groups can do the same, they get their ‘Choose Life’ plate. It is as simple and fair as that.
Besides, does it even make sense that each and every special license plate be introduced as a separate bill in the General Assembly? Legislators already deal with 3,000 bills in 45 or 60 days each year. Surely, they have other matters to attend to.
In the end, this is about more than a few words on a license plate. Our nation’s founders wrote almost obsessively of free speech as the essential ingredient of their new democracy. Our Constitution would never have been ratified by the states without the guarantee of free speech in the Bill of Rights. Our Supreme Court has consistently recognized the paramount importance of free speech, from the right of one individual to wear an anti-war armband to school to the right of large groups to march in the streets to express their views.
That a majority of Virginia’s lawmakers -- because they are too busy, too motivated by politics, or just plain ignorant -- seem willing to pass this bill shows an alarming disrespect for the constitutional principle that most defines us as a nation.
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