Specialty plates: who is speaking? American Civil Liberties Union of Tennessee v. Bredesen.

Author:Holladay, Kathleen E.


Is a message printed on a specialty license plate generally attributed to the government or the driver? Several courts have analyzed this issue because of its relation to the Free Speech Clause of the First Amendment. (1) In ACLU of Tennessee v. Bredesen, the Sixth Circuit Court of Appeals addressed the issue when it analyzed whether a specialty license plate program created a forum that required viewpoint-neutrality. (2) In Tennessee, a group interested in creating its own specialty license plate can apply for approval provided it pays registration, issuance, renewal, and handling fees; meets a minimum number of advanced orders for the plate; and gains approval from the commissioner for the the plate's design. (3) The revenues from the sales of the plates are divided: half goes to non-profit groups "committed to advancing the causes publicized on the plates" (4) while the other half goes to the State. (5)

In 2003, the Tennessee legislature passed the Choose Life Act, (6) which authorized a plate bearing the words "Choose Life." (7) The revenues from the sales of this plate would be split between the State and a private entity called New Life Resources, which was required to use its half "exclusively for counseling and financial assistance, including food, clothing, and medical assistance for pregnant women in Tennessee." (8) Before the Choose Life Act was enacted, Planned Parenthood of Middle and East Tennessee lobbied the legislature in an attempt to amend the statute to authorize a pro-choice plate; however, this amendment was rejected. (9) The American Civil Liberties Union of Tennessee (ACLU), among others, filed suit asking the court to enjoin enforcement of the Act. (10) The district court agreed with the plaintiffs and ordered the injunction, holding that the message was not government speech, but instead was "mixed" (hybrid) speech and, therefore, subject to viewpoint neutrality. (11) New Life appealed the decision. (12)

The Sixth Circuit, in Bredesen, held that messages on specialty license plates represent government speech, (13) rejecting the ACLU's argument that specialty-plate messages are hybrid speech, which must be viewpoint-neutral. (14) The court also rejected the ACLU's argument that private volunteers' dissemination of the message creates a forum that requires viewpoint neutrality. (15) The court relied on the Supreme Court's opinion in Johanns v. Livestock Marketing Association, which concluded that when "the government sets the overall message to be communicated and approves every word that is disseminated," it is government speech. (16) The Sixth Circuit's decision in Bredesen took a marked turn from other courts on this issue: it is the only one to have held that specialty plates are purely government speech. (17)

The decision in Bredesen was incorrect because the court misapplied precedent. Since this case does not fit in the category of government speech financed by compelled subsidies, which was the issue analyzed in Johanns, (18) the court should have used the four-factor analysis articulated by the Fourth Circuit and later adopted by the Ninth Circuit. The Fourth Circuit's analysis requires a reviewing court to determine whether the messages on specialty plates are government, private, or hybrid speech; and whether the specialty plate program has created a forum to encourage diverse viewpoints that are required to be neutral. (19) The Seventh Circuit, in a later decision, noted that it believed the Sixth Circuit's conclusion was flawed and that the Fourth and Ninth Circuits' reasoning was more persuasive. (20) But the Seventh Circuit reduced the multi-factor test used by the Fourth and Ninth Circuits to a "reasonable person" test. (21) Since the Seventh Circuit's case was decided after Bredesen, the Sixth Circuit should have used the four-factor test applied by the Fourth and Ninth Circuits.

The first section of this Note discusses background information about the different categories of speech: government, private, and hybrid. The second section analyzes the Sixth Circuit's decision in Bredesen, discusses the four-factor test that the court should have used, and critiques the four-factor test as well as tests applied by other courts. The final section summarizes the issues and concludes the Note.


  1. Government Speech

    The government-speech doctrine allows the government to advance a message that is not required to be viewpoint-neutral. (22) In 1991, the Supreme Court took steps toward developing the government-speech doctrine when it held that doctors subsidized by government funds could be compelled to refrain from discussing the option of abortion with their patients. (23) Although the Court did not use the term "government speech," later Court decisions interpreted the holding to mean that the government can engage in content-based discrimination when private entities are enlisted to convey government messages. (24) In 1995, the Supreme Court held that when the government conveys a message to promote its own policy, there is no restraint on what it can say. (25) However, when it comes to private speech, the government may not show a preference between speakers. (26)

    In 2005, the Supreme Court revisited the issue of government speech in Johanns v. Livestock Marketing Ass'n. (27) In that case, the Court was asked to decide whether generic advertising, financed by a federal program to promote an agricultural product, violated the First Amendment. (28) The case involved a federal policy, the Beef Promotion and Research Act of 1985, which promoted "the marketing and consumption of 'beef and beef products,' using funds raised by an assessment on cattle sales and importation." (29) Part of the program included a checkoff, which was the assessment paid into the fund for such promotion. (30) This checkoff fund paid for promotional messages that included the attribution "Funded by America's Beef Producers." (31) Several associations and individuals involved in the program obligated to pay the checkoff sued on the ground that the Beef Board, which implemented the program, "impermissibly used checkoff funds to send communications supportive of the beef program to beef producers." (32) Essentially, the plaintiffs argued that they were forced to fund a message that they did not agree with.

    The Court began its opinion by distinguishing two types of compelled-speech cases: cases where an individual is "obliged personally to express a message he disagrees with, imposed by the government" and cases where an individual is "required by the government to subsidize a message he disagrees with, expressed by a private entity." (33) In this case, the Court recognized a different type of compelled-speech in which the government requires individuals to subsidize the government's speech. (34) The Court held that when "the government sets the overall message to be communicated and approves every word that is disseminated, it is not precluded from relying on the government-speech doctrine." (35)

    The Court further developed the government-speech doctrine in a subsequent case in which it held that the Free Speech Clause does not regulate government speech and that assistance from private sources does not constrain the government's freedom to deliver a government-controlled message. (36) In Pleasant Grove City, Utah v. Summum, the Court addressed the issue of whether the Free Speech Clause entitled a private group to insist that a municipality permit it to place a permanent monument among other donated monuments previously erected in a city park. (37) The monument at issue was one that contained the Seven Aphorisms of Summum, a religious organization founded in 1975. (38) The city park already contained 115 permanent displays, 11 of which were donated by private groups or individuals. (39) Summum argued that this was a case of private speech in a public space; (40) however, the Court held otherwise. (41)

    In the opinion, the Court discussed the different types of fora for speech. (42) The Court noted that in a traditional public forum and in a designated public forum, the government cannot restrict private speech, and any content-related restrictions on speech in either forum are subject to strict scrutiny. (43) While it might seem like monuments placed in a city park constitute speech in either a traditional or a designated public forum, the Court held that these types of permanent monuments "displayed on public property typically represent government speech." (44) Therefore, the government has the right to communicate its message without being subjected to strict scrutiny under the First Amendment, and it can rely on private entities to disseminate its message or provide assistance as long as it retains ultimate control of the message. (45) The Court reasoned that governments "have long used monuments to speak to the public." (46) The Court further explained that people associate public parks with the government; the monuments are "meant to convey and have the effect of conveying a government message, and they thus constitute government speech." (47) With this decision, the Supreme Court seemed to widen the scope of what constitutes government speech.

  2. Private Speech

    Governments have less freedom when regulating private speech. The extent of a government's ability to regulate private speech is determined by what type of forum the speech occurs in. (48) In a traditional public forum or a designated public forum, the government can only apply certain kinds of restrictions and such restrictions are subject to strict scrutiny. In these fora, "[i]t is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." (49) While there are ways in which the government can restrict private speech or convey its own message, these types of fora are not subject to content-based restrictions by the government. The Fourth...

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