AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE; Planned Parenthood of Middle and East Tennessee, Inc.; Sally Levine; Hilary Chiz; Joe Sweat, Plaintiffs-Appellees, v. Philip BREDESEN, Governor of Tennessee; Fred Phillips, Commissioner of Safety of Tennessee, Defendants-Appellees, Friends of Great Smoky Mountains National Park, Inc., a non-profit North Carolina Corporation, Defendant, New Life Resources, Inc., Intervening Defendant-Appellant.
No. 04-6393.
United States Court of Appeals, Sixth Circuit.
Argued: Nov. 2, 2005. Decided and Filed: March 17, 2006.
441 F.3d 370
III. CONCLUSION
Accordingly, we REVERSE the district court‘s grant of summary judgment to the defendant with respect to plaintiffs’ EPA and Title VII wage discrimination claims, and REMAND this case to the district court for further proceedings in conformity with this opinion.
AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE; Planned Parenthood of Middle and East Tennessee, Inc.; Sally Levine; Hilary Chiz; Joe Sweat, Plaintiffs-Appellees,
v.
Philip BREDESEN, Governor of Tennessee; Fred Phillips, Commissioner of Safety of Tennessee, Defendants-Appellees,
Friends of Great Smoky Mountains National Park, Inc., a non-profit North Carolina Corporation, Defendant,
New Life Resources, Inc., Intervening Defendant-Appellant.
No. 04-6393.
United States Court of Appeals, Sixth Circuit.
Argued: Nov. 2, 2005.
Decided and Filed: March 17, 2006.
Before: MARTIN, NELSON, and ROGERS, Circuit Judges.
ROGERS, J., delivered the opinion of the court, in which NELSON, J., joined. MARTIN, J. (pp. 380-92), delivered a separate opinion concurring in part and dissenting in part.
OPINION
ROGERS, Circuit Judge.
In this case we are required to decide the constitutionality of Tennessee‘s statute making available the purchase of automobile license plates with a “Choose Life”
I.
Tennessee stаtutory law authorizes the sale of premium-priced license plates bearing special logotypes to raise revenue for specific “departments, agencies, charities, programs and other activities impacting Tennessee.”
The State of Tennessee takes the other half of the profits. See
The Tennessee legislature has determined the price of specialty plates by statute. In general, they cost the same as a non-specialty plate plus a $35.00 fee (if the government issues the plate on or after September 1, 2002, as in this case). See
In 2003, the Tennessee legislature passed a law (hereinafter “the Act“) authorizing issuance of a specialty license plate with a “Choose Life” logotype “designed in consultation with a representative of New Life Resources.” See
The plaintiffs in this action, the American Civil Liberties Union of Tennessee and others, filed a civil action in federal district court challenging the Act as facially unconstitutional, naming the Governor of Tennessee as defendant. New Life intervened as a defendant. The district court granted summary judgment to the plaintiffs, enjoining enforcement of the Act. The district court held that the authorization of the “Choose Life” license plate was not purely government speech. Relying largely upon Fourth Circuit precedent, the district court held that “both the State and the individual vehicle owner are speaking“—a “mixture” of government and private speech. JA 33-34 (citing Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 793-94 (4th Cir.2004); Sons of Confederate Veterans, Inc. v. Comm‘r of the Va. Dep‘t of Motor Vehicles, 288 F.3d 610, 615 (4th Cir.2002)). Reasoning that providing for such “mixed” speech is not constitutional if doing so is discriminatory as to viewpoint, the district court found that the statute was clearly discriminatory as to viewpoint and enjoined enforcement of the Act. The district сourt expressly refrained, however, from reaching the question of whether the entire specialty license plate program was unconstitutional.
New Life appeals. Although the Tennessee state defendants have not appealed, they have filed a brief urging this court not to strike down Tennessee‘s specialty license plate scheme in its entirety.
II.
First, the district court was not deprived of subject matter jurisdiction in this case by the Tax Injunction Act (TIA),
This conclusion is supported by the longstanding distinction drawn in various legal contexts between taxes and ordinary debts. The Supreme Court for instance explained in New Jersey v. Anderson, 203 U.S. 483, 492, 27 S.Ct. 137, 51 L.Ed. 284 (1906):
Generally speaking, a tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government. We think this exaction is of that сharacter. It is required to be paid by the corporation after organization in invitum.2 The amount is fixed by the statute, to be paid on the outstanding capital stock of the corporation each year, and capable of being enforced by action against the will of the taxpayer. As was said by Mr. Justice Field, speaking for the court in Meriwether v. Garrett, 102 U.S. 472, 513, 26 L.Ed. 197:
“Taxes are not debts.... Debts are obligations for the payment of money founded upon contract, express or implied. Taxes are imposts levied for
the support of the Government, or for some special purpose authorized by it. The consent of the taxpayer is not necessary to their enforcement. They operate in invitum. Nor is their nature affected by the fact that in some States—and we believe in Tennessee—an action of debt may be instituted for their recovery. The form of procedure cannot change their character.”
See also Fla. Cent. & Peninsular R.R. Co. v. Reynolds, 183 U.S. 471, 475, 22 S.Ct. 176, 46 L.Ed. 283 (1902) (“tax” defined as “enforced” contribution and distinguished from ordinary contractual debt); Patton v. Brady, 184 U.S. 608, 619, 22 S.Ct. 493, 46 L.Ed. 713 (1902) (same); Alaska Consol. Canneries v. Territory of Alaska, 16 F.2d 256, 257 (9th Cir.1926) (same).
The Fifth Circuit has relied upon the definition of tax in Anderson to hold that a challenge to the collection of lease rent payments was not subject to the Tax Injunction Act. The Fifth Circuit explained,
The State contends that the leases are in fact taxes, and thus the federal courts are barred by the Tax Injunction Act,
28 U.S.C. § 1341 , from entertaining a challenge to the State‘s actions to collect on the leases. This contention is without merit. The lease obligations are a creature of contract, not a mandatory obligation imposed by the state as taxes are.
Lipscomb v. Columbus Mun. Separate Sch. Dist., 269 F.3d 494, 500 n. 13 (5th Cir.2001). The analysis would apply a fortiori to ordinary purchases, like the purchase of government bonds, or the purchase of a souvenir at a state park gift store. Such purchase payments can hardly be termed “taxes” as opposed to ordinary payments on voluntary contracts. This conclusion follows, moreover, regardless of what the government does with the sales income.
In this case, Tennessee‘s sale of specialty plates creates contractual debts to pay but imposes no tax. Instead of using its sovereign power to coerce sales, Tennessee induces willing purchases as would any ordinary market participant. The government confers all the same driving privileges on people who forgo specialty plates to buy standard-issue plates. Drivers’ only motive for buying such plates, therefore, must rest with the attractiveness of the “Choose Life” message as Tennessee has marketed it, not a desire to obey Tennessee‘s will. Under Anderson and Lipscomb, these sales constitute regular contractual payments, not taxes.
We recognize that there is some case law to the effect that cases like this one are precluded by the Tax Injunction Act. See Henderson v. Stalder, 407 F.3d 351, 354-60 (5th Cir.2005); NARAL Pro-Choice Ohio v. Taft, No. 1:05 CV 1064, 2005 U.S. Dist. LEXIS 21394, at *16-*26 (N.D.Ohio Sept. 27, 2005). These cases proceed on the questionable assumption that the applicable test is the one for differentiating between a regulatory fee and a tax. See generally Hedgepeth v. Tenn., 215 F.3d 608 (6th Cir.2000). This test was created to answer a different question: whether a regulatory fee, often directed to a segregated fund for a special use related to the basis for imposing the fee, is or is not a tax for TIA purposes. See generally San Juan Cellular Tel. Co. v. Pub. Serv. Comm‘n of P.R., 967 F.2d 683 (1st Cir.1992). The classic non-tax regulatory fee is imposed by an agency upon those subject to its regulation. It may serve regulatory purposes directly by, for example, deliberately discouraging particular conduct by making it more expensive. Or, it may serve such purposes indirectly by, for example, raising money placed in a special fund to help defray
Eight judges of the Fifth Circuit accordingly dissented from the denial of rehearing en banc in Henderson v. Stalder, 434 F.3d 352 (5th Cir.2005) (Davis, J. dissenting). In an opinion with which we are in substantial agreement, the dissent acknowledged the accepted tеst for distinguishing between a regulatory fee and a tax, but explained that “this does not mean that the extra charge for a specialty plate must be one or the other.” Id. at 355. It does not follow, in other words, that if “the charge is not a regulatory fee ... it must be a tax.” Id. Relying in part on the Ninth Circuit‘s reasoning in Bidart Brothers v. Calif. Apple Comm‘n, 73 F.3d 925 (9th Cir.1996), the Fifth Circuit dissent reasoned that, “the relevant question is whether this charge is a tax and if the answer to this question is no, the TIA does not apply regardless of whether the charge is characterized as a regulatory fee, a charitable donation or something else.” Henderson, 434 F.3d at 355. Thus even though the Fifth Circuit dissent found the charge for the Louisiana “Choose Life” plate not to be a regulatory fee, the charge was not a tax either, in part because “the charge is not ‘imposed’ by the legislature; because it is entirely optional and voluntary on the part of Louisiana citizens electing to pay the extra charge for a specialty plate.” Id. at 356.
III.
On the merits we are faced with a purely legal issue: whether a government-crafted message disseminated by private volunteers creates a “forum” for speech that must be viewpoint neutral. No such requirement applies, at least with respect to state-produced specialty license plates like those at issue in this case.
A. The “Choose Life” Specialty License Plate Bears a Government-Crafted Message
“Choose Life,” as it is to appear on the face of Tennessee specialty license plates, is a government-crafted message. See Johanns v. Livestock Mktg. Ass‘n, 544 U.S. 550, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005). Johanns stands for the proposition that when the government determines an overarching message and retains power to approve every word disseminated at its behest, the message must be attributed to the government for First Amendment purposes. See id. at 2062-66. In this case, Johanns requires the court to conclude that “Choose Life” is Tennessee‘s message because the Act determines the overarching message and Tennessee approves every word on such plates.
In Johanns, the Supreme Court held that federal government promotional campaigns to encourage beef consumption constituted government speech because the “message of the promotional campaigns is effectively controlled by the Federal Government itself.” Id. at 2062. In these campaigns, however, the federal government did not explicitly credit itself as the speaker. See id. at 2059 (messages bore the attribution, “Funded by America‘s Beef Producers“).
Johanns supports classifying “Choose Life” on specialty license plates as the State‘s own message. The Tennessee legislature chose the “Choose Life” plate‘s overarching message and approved every word to be disseminated. Tennessee set the overall message and the specific message when it spelled out in the statute that these plates would bear the words “Choose Life.”
Plaintiffs argue that “Choose Life” on specialty plates should be treated not as Tennessee‘s own message but as “mixed” speech subject to a viewpoint-neutrality requirement. Plaintiffs point to the following undisputed facts to support their view: (1) Tennessee produces over one hundred specialty plates in support of diverse groups, ideologies, activities, and colleges; (2) a private anti-abortion group, New Life, collaborates with the State to produce the “Choose Life” plate; and (3) vehicles are associated with their owners, creating the impression that a “Choose Life” license plate attached to a vehicle represents the vehicle owner‘s viewpoint. These facts are however consistent with the determination that “Choose Life” on a Tennessee specialty plate is a government-crafted message.
First, there is nothing implausible about the notion that Tennessee would use its license plate program to convey messages regarding over one hundred groups, ideologies, activities, and colleges. Government in this age is large and involved in practically every aspect of life. At least where Tennessee does not blatantly contradict itself in the messages it sends by approving such plates, there is no reason to doubt that a group‘s ability to secure a specialty plate amounts to state approval. It is noteworthy that Tennessee has produced plates for respectable institutions such as Penn State University but has issued no plates for groups of wide disrepute such as the Ku Klux Klan or the American Nazi Party. Plaintiffs’ position implies that Tennessee must provide specialty plates
Second, as Johanns makes clear, the participation of New Life in designing the “Choose Life” logotype has little or no relevance to whether a plate expresses a government message. See 125 S.Ct. at 2062-63. In Johanns the Supreme Court upheld the beef marketing scheme as government speech even though the development of details was left to an entity “answerable” to the Secretary of Agriculture, Id. So long as Tennessee sets the overall message and approves its details, the message must be attributed to Tennessee for First Amendment purposes. See id.
Third, Johanns also says that a government-crafted message is government speech even if the government does not explicitly credit itself as the speaker. Many of the promotional messages in Johanns bore the attribution “Funded by America‘s Beef Producers.” Id. at 2059. The Supreme Court explained that the tagline, “standing alone, is not sufficiently specific to convince a reasonable factfinder that any particular beef producer, or all beef producers, would bе tarred with the content of each trademarked ad.” Id. at 2065-66. This was true even though the message was presumably conveyed in private media containing mostly privately-sponsored advertising. In contrast, the medium in this case, a government-issued license plate that every reasonable person knows to be government-issued, a fortiori conveys a government message.
B. Dissemination of a Government-Crafted Message by Private Volunteers Does Not Create a “Forum” for Speech Requiring Viewpoint Neutrality
Plaintiffs’ most intuitively inviting argument—that the government must be viewpoint neutral when it relies on like-minded volunteers to disseminate its message—cannot in the end invalidate the Act. Plaintiffs point to the following facts to support this aspect of their argument: (a) the government must receive one thousand advance customer orders for the “Choose Life” plate or Tennessee will not manufacture it; (b) the “Choose Life” message is communicated by private citizens’ affirmatively purchasing the plates and attaching them to their privately-owned vehicles; (c) the Tennessee government devotes no funds to disseminating the “Choose Life” message, but rather raises money by selling these plates to customers who wish to have “Choose Life” plates on their cars. While it is true that such voluntary dissemination itself qualifies as expressive conduct, the government‘s reliance on private volunteers to express its policies does not create a “forum” for speech requiring viewpoint nеutrality.
This conclusion is supported by negative inference from the one Supreme Court case dealing with license plate speech. In Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), New Hampshire embossed its state motto, “Live Free or Die,” on standard-issue license plates in the same way that Tennessee would stamp “Choose Life” on specialty plates. See id. at 707, 97 S.Ct. 1428. The Wooley Court characterized “Live Free or Die” as “the State‘s ideological message,” id. at 715, 97 S.Ct. 1428, and the State‘s “official view,” id. at 717, 97 S.Ct. 1428. The Supreme Court held that New Hampshire could not constitutionally prosecute vehicle owners for covering up the motto on their license plates, because by doing so the State would be unconstitutionally forcing automobile owners to adhere to an ideological point of view they disagreed with. Nowhere did the Court suggest that the
In general, the government does not create a “forum” for expression when it seeks to have private entities disseminate its message. In Johanns, for instance, the federal government paid for the “Beef. It‘s What‘s for Dinner” message and other promotional messages. 125 S.Ct. at 2059. Although these involved “print and television messages,” id., presumably published or broadcasted by hired private entities, the Court classified this and the rest of the beef promotions as government speech for First Amendment purposes. See id. at 2058, 2062-66. Likewise, in Rust v. Sullivan, the federal government allocated Title X funds to doctors for family planning counseling but forbade such doctors from discussing abortion with the program‘s patients. 500 U.S. 173, 178-83, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). In Rust, the Court recognized that when “the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (interpreting Rust). If in this case Tennessee drivers were paid by the government to display “Choose Life” plates, the Act would unquestionably be constitutional.
In this case, however, the carriers of Tennessee‘s message are unpaid. They are volunteers. Rather than receiving government money, they pay out of their own pockets for the privilege of putting the government-crafted message on their private property. Plaintiffs argue that this fact demonstrates that “Choose Life” is not purely the government‘s message but also the speech of the customers who purchase and display these plates—thus creating a “forum” for speech. While it is true that volunteers’ display of “Choose Life” plates expresses agreement with Tennessee, that fact does not mean that a First Amendment “forum” for speech has been created.
The doctors in Rust disagreed with the government‘s anti-abortion policy. But if they had been true believers in the policy and had volunteered to work in the program free of charge, the speech restrictions in Rust would still have expressed the government‘s anti-abortion viewpoint—and therefore qualified for government speech treatment. Similarly, the publications and television stations in Johanns that published or broadcasted beef advertisements would have conveyed a government-crafted message even if they had done so for free. There is nothing in the Supreme Court‘s decisions in Rust or Johanns that implies that the government has less right to control expressions of its policies when it relies on unpaid private people. No constitutionally significant distinction exists between volunteer disseminators and paid disseminators.
Plaintiffs’ view that volunteer dissemination of a government-crafted message creates a “forum,” if accepted, would force the government to produce messages that fight against its policies, or render unconstitutional a large swath of government
We cannot affirm the district court in this case without either (1) effectively invalidating all such hitherto-accepted forms of privately disseminated government speech, or (2) distinguishing these examples from the “Choose Life” specialty license plates.
Neither the district court nor the plaintiffs on appeal attempt to articulate a basis for distinguishing these examples. Government-printed pamphlets or pins saying “Register and Vote” or “Buy U.S. Bonds” are clearly government-crafted messages distributed by private individuals who have a First Amendment right not to disseminate them if they don‘t want to. Postage stamps saying “Win the War” or “Support Our Troops” are clearly government-crafted messages disseminated by private individuals who, under Wooley, also presumably have a First Amendment not to buy or use them if they don‘t want to. And license plates saying for instance “Spay or Neuter your Pets” are even more obviously indistinguishable from the license plates at issue in this case. Indeed, the State of Tennessee in this appeal, not advocating reversal of the district court‘s injunction but urging us not to invalidate the entire specialty license plate program, offers no tenable basis for drawing a distinction between the dozens of government messages available on Tennessee plates and the “Choose Life” message.
Of course the unstated distinction is that the “Choose Life” message is highly controversial. With respect to the “Choose Life” message, much more than in the above examples, there are large numbers of participants in the public discourse with an opposing view. Such a distinction, however, is entirely indefensible as a matter of First Amendment law, however much it might properly motivate the Tennessee legislature as a matter of policy. Such a distinction would fly in the face of the fundamental free speech principle that views expressed by substantial numbers are treated no differently by the First Amendment than extreme or way-out-of-the-mainstream views. Government
In the absence of a tenable distinction, invalidating the Act in this case would effectively invalidate not only all those government specialty license plate provisions that involve a message that anyone might disagree with, but also effectively invalidate all manner of other long-accepted practices in the form of government-crafted messages disseminated by private volunteers. We are not provided with a sound legal basis for making such a leap.
We recognize that the Fourth Circuit has invalidated a nearly identical specialty license plate law in South Carolina. See Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786 (4th Cir.2004). In Rose Judge Michael enunciated a rationale that neither of the other two panel judges joined, although both concurred in the judgment. See id. at 800 (Luttig, J., concurring in the judgment); id. at 801 (Gregory, J., concurring in the judgment). The reasoning of the Fourth Circuit judges is not persuasive, primarily for two reasons.
First, the Fourth Circuit opinions in Rose are in tension with the intervening case of Johanns. Johanns sets forth an authoritative test for determining when speech may be attributed to the government for First Amendment purposes. Rose relied instead on a pre-Johanns four-factor test of the Fourth Circuit‘s own
Second, none of the separate Fourth Circuit opinions explains how that court would treat such unexceptional examples of government-provided, privately disseminated speech as those described above. Without an articulated basis for distinguishing such examples, following the Fourth Circuit‘s lead in this case would invalidate wide swaths of previously accepted exercises of government speech. With no Supreme Court case requiring us to take such a step, we decline to do so.
IV.
For the foregoing reasons, the district court‘s order enjoining enforcement of the Act is REVERSE AND REMANDED for proceedings consistent with this opinion.
BOYCE F. MARTIN, Jr., Circuit Judge, concurring in рart and dissenting in part.
I concur in the Court‘s holding that the district court was not deprived of subject matter jurisdiction in this case by the Tax Injunction Act,
I believe that there are two major flaws with the majority‘s analysis in this case. First, the majority fails to properly characterize the specialty license plate program. It seems apparent to me that the state created the specialty license plate program to facilitate private speech (notwithstanding the government speech aspects inherent in the issuance of a license plate), and not to promote a governmental message. This fact, even conceding that there must necessarily be some governmental speech involved in the issuance of license plates, requires that the government be viewpoint neutral.2 Second, the majority errs by applying First Amendment compelled speech/subsidy doctrine to a case where, as the majority admits with respect to its analysis of the Tax Injunction Act, nothing is compelled. Because we are not dealing with compelled speech or compelled subsidies, I do not believe that the so-called government speech inquiry is wholly determinative of whether the First Amendment has been violated.
Although the government may generally speak and control its own message, it may not suppress contrary messages because of their viewpoint in a forum designed to encourage a diversity of views from private speakers.3
I.
A. Tennessee‘s speciality license plate program is a forum designed to encourage private speech, not a government program established to promote a governmental message.
The majority focuses on the Choose Life license plate without considering the license plate program as a whole and frames the question as “whether a government-crafted message disseminated by private volunteers creates a ‘forum’ for speech that must be viewpoint neutral.” This is itself a loaded question. First, it puts the cart before the horse by already deciding that the message is purely a governmental message. Second, by so phras-
Thus, I would start by determining the overall purpose of the speciality license plate program. When this is done, viewing the license plate program as a whole, and taking account of the fact that the government engages in speech by providing the actual license plates, it becomes clear that the speciality license plate “program was designed to facilitate private speech, not to promote a governmental message.” Legal Services Corp. v. Velazquez, 531 U.S. 533, 542, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 834, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). This conclusion, in contrast to the majority‘s, would require Tennessee‘s license plate program to be viewpoint neutral.
Tennessee requires all motor vehicles to have a license plate. Motorists can choose from ordinary license plates created by the Tennessee government or they can pay extra for personalized and specialty license plates. There are several standard Tennessee plates and there are approximately 150 specialty plates. As the majority notes, the specialty plates are created in consultation with private organizations and half of the profits may be devoted to the private non-profit organizations sponsoring the plates.
In my opinion, the fact that the state has permitted approximately 150 private organizations to create specialty license plates and the manner in which the state operates its license plate program demonstrates that the forum was created to facilitate private speech. See Rosenberger, 515 U.S. at 829-30, 115 S.Ct. 2510 (analyzing forum); Good News Club v. Milford Cent. Sch. Dist., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (applying forum analysis where private speech occurs on government property); Lamb‘s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 390-91, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (same); Sons of Confederate Veterans, Inc. v. Commissioner of the Va. Dep‘t. of Motor Vehicles, 288 F.3d 610, 622 (4th Cir.2002) (noting that where private speech is at issue, restrictions must be viewpoint neutral regardless of type of forum); Planned Parenthood of South Carolina, Inc. v. Rose, 361 F.3d 786 (4th Cir.2004) (same). The organizations with specialty license plates are numerous and diverse.5 The majority claims, however, in concluding that all of the license plates are pure government speech, that “there is nothing implausible about the notion that Tennessee would use its license plate program to convey messages regarding over one hundred groups, ideologies, activities, and colleges.” There may be nothing implausible about the majority‘s concept in the abstract;6 here, however, the evidence is clear that Tennessee wished to create a forum for private speakers. It cannot be ignored that the license plates represent a wide-array of viewpoints, some arguably conflicting, and many not germane to any governmental interest. See Legal Services Corp., 531 U.S. at 543, 121 S.Ct. 1043 (“And in Rosenberger, the fact that student newspapers exрressed many different points of view was an important foundation for the Court‘s decision to invalidate viewpoint-based restrictions.“) (citing Rosenberger, 515 U.S. at 836, 115 S.Ct. 2510); Sons of Confederate Veterans, Inc. v. Commissioner of the Va. Dep‘t. of Motor Vehicles, 305 F.3d 241, 242-43 (4th Cir.2002) (Williams, J., concurring in the denial of rehearing en banc) (“In essence, the Commonwealth has opened its license plates to myriad private speakers but wishes to restrict the message one of those speakers would express based on its disagreement with the viewpoint contained therein.“).
In addition to acknowledging the viewpoints already expressed in the forum, it is
I would contrast specialty plates with Tennessee‘s own plates where it does intend to convey a governmental message. For example, a new Tennessee plate issued in January 2006 was issued because “[Governor] Bredesen felt strongly [that the plate] should reflect the natural beauty of the state.” Press Releasе, available at http://tennessee.gov/safety/newsreleases/newplate.htm (last visited March 10, 2006). Bredesen stated that he wanted “this new plate to reflect the magnificence of our state, as well as to serve as a symbol of the pride Tennesseans feel to live on such a beautiful land.” That same press release notes that “[t]he Tennessee Department of Safety issues approximately 5.4 million passenger auto plates each year .... In addition, the state currently issues nearly 150 different license plates to reflect drivers’ special interests, such as schools, wildlife preservation, parks, the arts and children‘s hospitals.” Id.
Although there may be nothing “implausible” about a government establishing a license plate program in order to promote purely governmental messages, I believe the majority ignores the reality of the situation here—Tennessee is not promoting its own messages, but rather has “expend[ed] funds [or provided governmental property in the form of the license plate itself] to encourage a diversity of views from private speakers.” Legal Services Corp., 531 U.S. at 542, 121 S.Ct. 1043 (quoting Rosenberger, 515 U.S. at 834, 115 S.Ct. 2510).8 In this case, “[a] page of
B. The majority errs by applying the compelled speech/subsidy doctrine in a case where nothing is compelled.
Aside from having mischaracterized the purpose of the specialty license plate program, the majority also applies the wrong First Amendment doctrine. For purposes of the Tax Injunction Act inquiry, the majority properly concludes that the payments for specialty license plates are voluntary and not compelled. Nevertheless, when it turns to the merits of the First Amendment inquiry, the majority ironically treats this case as if it were a compelled speech or compelled subsidy case. I part ways with the majority because it I do not agree that Johanns v. Livestock Mktg. Ass‘n, 544 U.S. 550, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005) is controlling, and the majority relies almost exclusively on Johanns. The majority apparently takes Johanns to mean that the sleeping doctrine of “government speech” has been awakened and now controls all First Amendment analysis. I disagree.
Johanns is a case that addresses compelled subsidies—that is, the government forced someone to give it money to pay for speech. In Johanns, the Supreme Court described the “two categories of [compelled speech] cases.” Id. at 2060. The first category is true compelled speech cases—i.e., cases where “an individual is obliged personally to express a message he disagrees with, imposed by the government.” Id. In this category, the Court has taken a strong stand and invalidated “outright compulsion.” Id.; see West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (prohibiting state from requiring schoolchildren to recite the Pledge of Allegiance while saluting the American flag, on pain of expulsion); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (holding that requiring the plaintiffs to bear the state‘s motto, “Live Free or Die,” was impermissible compulsion of expression). The second category of cases is compelled subsidy cases—that is, cases “in which an individual is required by the government to subsidize a message he disagrees with.” Johanns, 125 S.Ct. at 2060. There are two subcategories to the compelled subsidy cases: (a) compelled subsidies to support a private entity‘s political message, see Keller v. State Bar of Cal., 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990); Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), and (b) compelled subsidies to support the government‘s message. It is in this subcategory—compelled subsidies to support the government‘s message—that Johanns fits.9 Thus, in compelled subsidy cases, the determinative issue is whether the speech is the government‘s (which is immune from First Amendment challenge) or a private entity‘s speech, which is unconstitutional, see Keller, 496 U.S. 1, 110 S.Ct. 2228; Abood, 431 U.S. 209, 97 S.Ct. 1782.
The reason is simple when one thinks of what the First Amendment harm is in each situation. When there is a compelled subsidy, the harm is being forced to give the government money to pay for someone else‘s message. When that message is another private message (despite tangen-
The majority here, however, extrapolates the so-called government speech doctrine from the compelled subsidy context of Johanns, and applies it, apparently, without limit, in all First Amendment cases. I disagree with this approach. First, if the majоrity‘s analysis applied to Barnette, Wooley, Keller, and Abood, the outcomes of all of those cases certainly could have been different. The majority here found several facts relevant to its decision. First, the government “crafted” the message. The same could be said in the earlier cases. The Pledge of Allegiance is the government‘s message. New Hampshire‘s government “crafted” its own motto. Based on the majority‘s broad interpretation of government involvement in speech, the fact that the government compelled membership and dues payments in Keller and Abood, could be interpreted to fall within the majority‘s understanding of government speech. The government had ultimate control over all of these messages. In each of those cases, the facts the majority found relevant here would indicate that the message was the government‘s own. But, this was not the approach the Su-
The government speech doctrine, as it is used in Johanns, is more appropriately utilized in the compelled subsidy context, where who is speaking is determinative, and if it is the government, consistent with its broad taxing authority, that speech is immune from First Amendment challenge. Johanns, 125 S.Ct. at 2068 (Souter, J., dissenting) (“[T]he Government argues here that the beef advertising is its own speech, exempting it from the First Amendment bar against extracting special subsidies from those unwilling to underwrite an objectionable message.“).11 Thus, if the plaintiffs here, who presumably disagree with the “Choose Life” message, were compelled to subsidize the production and distribution of “Choose Life” license plates, then Johanns would be on all fours with this case.12 We face an entirely different situation, however, and therefore Johanns is not determinative.
C. The “government speech” doctrine does not permit viewpoint discrimination when the government encourages a diversity of views from private speakers.
The Supreme Court‘s precursor cases to Johanns, Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) and Legal Services Corp., are instructive, as well as the Court‘s viewpoint discrimination cases. The majority briefly considers Rust, but misinterprets its holding and improperly applies it to this case. In Rust, Congress established Title X of the Public Health Service Act, “which provides federal funding for family planning services.” Id. at 178, 111 S.Ct. 1759. The Act authorizes the Secretary of the Department of Health and Human Services to “make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of
The Court rejected the plaintiffs’ First Amendment claim stating that “[t]he Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.” Id. at 193, 111 S.Ct. 1759; id. (noting that the government “has merely chosen to fund one activity to the exclusion of the other“). Thus, restrictions imposed upon federal grants, are permissible in certain circumstances when simply “designed to ensure that the limits of the federal program are observed.” Id.; but see Legal Services Corp., 531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63. The Court characterized the case, not as one where the government seeks to suppress an idea, but rather a “prohibition on a project grantee or its employees from engaging in activities outside of the project‘s scope.” Rust, 500 U.S. at 194, 111 S.Ct. 1759. Thus, “when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.” Id.
The Court focused on the fact that the program at issue involved a federal subsidy. Id. at 199, 111 S.Ct. 1759 n. 5 (“First, Title X subsidies are just that, subsidies.“). Consequently, the complaining parties in Rust could simply have declined to accept federal assistance. But, by voluntarily accepting federal monies, “a recipient voluntarily consents to any restrictions placed on any matching funds or grant-related income.” Id.
Contrary to the majority‘s insinuation here, the holding of Rust is not limitless and the Supreme Court itself explicitly stated as much. The Court stated that its holding was “not to suggest that funding by the Government, even when coupled with the freedom of the fund recipients to speak outside the scope of the Government-funded project, is invariably sufficient to justify Government control over the content of expression.” Id. at 199, 111 S.Ct. 1759. Accordingly, the Court “has recognized that the existence of a Government ‘subsidy,’ in the form of Government-owned property, does not justify the restriction оf speech in areas that have ‘been traditionally open to the public for expressive activity.‘” Id. at 199-200, 111 S.Ct. 1759 (quoting United States v. Kokinda, 497 U.S. 720, 726, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (additional citations omitted)). It proves too much to suggest, as the majority does, that any government involvement in speech turns that speech into government speech immune from First Amendment restrictions. Thus, Tennessee‘s license plate program falls not within the broader holding of Rust, but within the Court‘s caveat that the government, despite some involvement and despite providing a subsidy of sorts (here, providing the license plates for the messages), may not restrict speech in areas it has designed to facilitate private speech.
The Court later resolved a similar question in Legal Services Corp. v. Velazquez, 531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001), where it addressed the Legal Services Corporation Act. The Act established the Legal Services Corporation whose “mission is to distribute funds appropriated by Congress to eligible local grantee organizations ‘for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford
The Court noted that in Rust, it “did not place еxplicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech” but “when interpreting the holding in later cases, however, [the Court] ha[s] explained Rust on this understanding.” Id. at 541, 121 S.Ct. 1043. The Court acknowledged that viewpoint based funding decisions can be sustained where “the government is itself the speaker” or, “like Rust” where the government “used private speakers to transmit specific information pertaining to its own program.” Id. (citations and quotations omitted). The majority here latches onto the idea that Tennessee is using private speakers to disseminate its Choose Life message—that is, the license plate program is “like Rust.” As I have discussed above, however, Rust included a caveat that the majority fails to acknowledge. Because of that failure, the majority does not properly characterize the specialty license plate program, and it does not properly consider whether the specialty license plate forum has been traditionally open to the public for expressive activity. Rust, 500 U.S. at 199-200, 111 S.Ct. 1759.
As the Supreme Court held, contrary to the majority‘s belief here, “[n]either the latitude for government speech nor its rationale applies to subsidies for private
II.
With the preceding First Amendment doctrine issues in mind, I would hold that Tennessee created a forum to encourage a diversity of viewpoints from private speakers and therefore the Constitution requires viewpoint neutrality. In Rust, “the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program.” Rosenberger, 515 U.S. at 833, 115 S.Ct. 2510 (describing Rust). This is not a Rust case despite the majority framing it as such. See also Sons of Confederate Veterans, 305 F.3d at 246 (Luttig, J., respecting the denial of rehearing en banc) (“When a special license plate is purchased, it is really the private citizen who engages the government to publish his message, not the government who engages the private individual to publish its message, as in cases like Rust v. Sullivan [] and Wooley v. Maynard, for example.“).
The specialty license plate program itself has been open and available to a wide-rangе of private speakers to promote their own messages. The government‘s participation in the process by providing the actual license plate “in the form of Government-owned property, does not justify the restriction of speech in areas that have been traditionally open to the public for
Finally, I also cannot subscribe to my colleagues’ melodramatic doomsday predictions about what would occur should we hold that the Constitution requires that Tennessee‘s specialty license plate program be viewpoint neutral. The majority claims that viewpoint neutrality will require the statе to issue Ku Klux Klan and American Nazi Party specialty license plates. The simple answer in response to this suggestion is: Well of course that‘s true if viewpoint neutrality means anything. That is the same reason that Tennessee cannot prevent the KKK or Nazi Party from getting parade licenses on the same terms as other groups and the same reason that Tennessee cannot prevent these groups from espousing their views in the town squares.
Additionally, what my colleagues seem to miss, is the fact that Tennessee already
Moreover, Tennessee can constitutionally maintain viewpoint neutral regulations, such as the one already in place requiring at least 1,000 paid specialty plate orders before a plate is issued. See Good News Club, 533 U.S. at 106-07, 121 S.Ct. 2093 (discussing the difference between subject matter regulations and viewpoint discrimination). If the KKK and Nazi Party are able to pull together 1,000 proud, dues-paying members, who wish to display such license plates on their cars, however, they are entitled to do so the same as the Sons of Confederate Veterans, Penn State Alumni, antique afficionados, and members of pro-life and pro-choice organizations. There is also no evidence that the doomsday scenario the majority predicts has occurred in the Fourth Circuit. The government has not ceased to function. The state governments are not inundated with frivolous license plate proposals. The roads are not overcrowded with KKK license plates and license plates advocating reckless pet breeding.
In raising such examples as my colleagues do here, they seem to forget about the core purpose of the First Amendment. “[T]he First Amendment was not written for the vast majority of [Tennesseans]. It belongs to a single minority of one.” Sons of Confederate Veterans, 305 F.3d at 242 (Wilkinson, C.J., concurring in the denial of rehearing en banc). That currently disfavored messages are entitled to First Amendment protection should come as a shock to no one. In this case, the Choose Life message could easily have been Pro-Choice and the positions of the parties reversed. See Children First Foundation, 2006 WL 544502 (choose life organization suing state and arguing that viewpoint neutrality is required in specialty license plate forum); Planned Parenthood of South Carolina, 373 F.3d at 581 (Wilkinson, J., concurring in the denial of rehearing en banc). The First Amendment principles, however, remain the same.
III.
For the foregoing reasons, I would affirm the district court‘s decision enjoining
Romell BROOM, Petitioner-Appellant, v. Betty MITCHELL, Respondent-Appellee.
No. 03-4370.
United States Court of Appeals, Sixth Circuit.
Argued: Nov. 30, 2005.
Decided and Filed: March 17, 2006.