License to Discriminate: “Choose Life” License Plates and the Government Speech
License to Discriminate: “Choose Life” License Plates and the Government Speech
W. Alexander Evans, 8 Nev. L.J. 765 (2008)
The line between expressing one’s own view and discriminating against contrary views is a fine one. The distinction, however, is important in the context of government speech. While the government can express a view pertaining to a particular subject and refuse to express contrary views, it cannot discriminate against contrary views when access to a public forum is at issue, even if it has created the forum and controls subject matter within it.
In ACLU of Tennessee v. Bredesen, the United States Court of Appeals for the Sixth Circuit upheld a Tennessee statute that authorized the sale of a license plate bearing the words “Choose Life,” despite the fact that the State refused to authorize a similar license plate bearing a “Pro-Choice” message. The court held that the “Choose Life” message consisted of purely governmental speech distributed by private volunteers and that, as such, it failed to create a “forum” of speech that required viewpoint neutrality.