Mаry E. LEWIS, Appellant/Cross-Appellee, v. Quentin WILSON, In His Official Capacity as Director of Revenue of the State of Missouri, Appellee/Cross-Appellant.
Nos. 00-2149, 00-2181
United States Court of Appeals, Eighth Circuit
Submitted: March 14, 2001. Filed: June 12, 2001.
Rehearing and Rehearing En Banc Denied: July 30, 2001.
1077
III. CONCLUSION
Accordingly, we affirm the grant of summary judgment in favor of the appellee.
Erwin O. Switzer, III, argued, St. Louis, MO (M. Steven Brown, on the briеf), for Appellee/Cross-Appellant.
Before MORRIS SHEPPARD ARNOLD and HEANEY, Circuit Judges, and BATTEY,1 District Judge.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
When Mary Lewis requested a Missouri license plate with the letters “ARYAN-1” in 1983, the Missouri Department of Revenue (DOR) rejected her application. Because the relevant state law in effect at the time permitted the DOR to reject only those requests that were for plates that were obscene or profane, Ms. Lewis sued the DOR, contending that the plate that she requested was neither. Ms. Lewis prevailed, see Carr v. Director of Revenue, 799 S.W.2d 124 (Mo.Ct.App.1990), and the DOR issued her the “ARYAN-1” plate in 1990.
Two years after the Carr decision, and evidently in response to it, the Missouri legislature amended the law to stаte that “[n]o personalized license plates shall be issued ... which are obscene, profane, inflammatory or contrary to public policy” (emphasis supplied), see
Ms. Lewis appealed to the Missouri Administrative Hearing Commission, see
On cross-motions for summary judgment, the district court concluded that the DOR‘s refusal to renew Ms. Lewis‘s license plate on the ground that it was “contrary to public policy” was unconstitutional. See Lewis v. Wilson, 89 F.Supp.2d 1082, 1089-91 (E.D.Mo.2000). The district court refused, however, to grant an injunction requiring the DOR to issue the plate, see id. at 1091, and also refused to grant Ms. Lewis attorney‘s fees pursuant to
I.
Although the district court agreed with Ms. Lewis that the Missouri statute allowing the DOR to refuse to issue license plates that are “contrary to public policy” was unconstitutionally overbroad, see Lewis, 89 F.Supp.2d at 1090, the court refused to grant Ms. Lewis an injunction, believing that the DOR might have other, constitutional, reasons for rejecting the plate, see id. at 1091. We review de novo the district court‘s legal conclusions, see United States v. McMasters, 90 F.3d 1394, 1397 (8th Cir.1996), cert. denied, 519 U.S. 1071, 1099, 117 S.Ct. 718, 136 L.Ed.2d 636 (1997), but rеview the denial of an injunction for an abuse of discretion, see International Association of Machinists and Aerospace Workers v. Soo Line Railroad Co., 850 F.2d 368, 374 (8th Cir.1988) (en banc), cert. denied, 489 U.S. 1010, 109 S.Ct. 1118, 103 L.Ed.2d 181 (1989).
We ask first whether the DOR‘s refusal to renew the license plate violated Ms. Lewis‘s first amendment rights. Because the state of Missouri technically owns the physical metal plate on which Ms. Lewis‘s message is displayed, the DOR maintains that the plate is a nonpublic forum which gives the state at least a limited right to control the message that the plate contains. See Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 46-47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). We express some initial skepticism about characterizing a license plate as a nonpublic forum, because it occurs to us that a personalized plate is not so very different from a bumper sticker that expresses a social or рolitical message. The evident purpose of such a “forum,” moreover, if it is one, is to give vent to the personality, and to reveal the character or views, of the plate‘s holder. In any case, we need not determine precisely what kind of forum, if any, a personalizеd license plate is because the statute at issue is unconstitutional whatever kind of forum a license plate might be.
A restriction on speech is constitutional only if certain principles are adhered to. Among these principles is a requirement that the restriction be spеcific enough that it does not delegate unbridled discretion to the government officials entrusted to enforce the regulation. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 764, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). This case resembles cases like Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), that involve statutes requiring a speaker to obtain official permission to engage in a particular type of speech: In Cox, 379 U.S. at 556, permission wаs required to have a parade, and here permission is required to display a message on a license plate. In both Cox and this case the relevant statute gave little guidance to the officer entrusted to grant this permission.
These types of laws have generally been held to violate the first amendment. “It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not by use of a statute providing a system of broad discretionary licensing power,” id. at 557. Where a regulation requires that a speaker receive permission to engage in speech, the official charged with granting the permission must be provided specific standards on which to base his or her decisions. See Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123, 131, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). Without such standards, every application of the regulation “creates an impermissible risk of suppression of ideas,” id. at 129. Contrary to the DOR‘s assertion, this principle applies with as much force to civil statutes as it does to criminal laws. See, e.g., Plain Dealer, 486 U.S. at 764.
For Ms. Lewis to succeed in her challenge to the provision of the statute allowing the rejection of a message because it is “contrary to public policy,” she need not show that she was denied the “ARYAN-1” plate because of her viewpoint. “[T]he success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether thе administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so,” Nationalist Movement, 505 U.S. at 133 n. 10. Ms. Lewis, therefore, need show only that there was nothing in the ordinance to prevent the DOR from denying her the plate because of her viewpoint.
We see nothing in
The DOR‘s actions have themselves supplied proof that the phrase is unconstitutionally broad. The DOR first maintained that the word “Aryan” was itself contrary to public policy because of the message of racial superiority that the DOR asserts that the use of the word “Aryan” implies. See id. at 1086 n. 3, 1089. As the controversy with Ms. Lewis progressed, however, the DOR changed its “public policy” basis to the present one, namely, that of promoting highway safety by rejecting license plates that could incite so-called road rage, see id. at 1086 n. 3, 1089-90.
The very fact that the DOR could so readily switch justifications for its rejection of the plate illustrates the constitutiоnal difficulty with the statute. The DOR‘s first justification was one that, if not blatant viewpoint discrimination, certainly could reasonably appear to have been based on the viewpoint of the speak-
II.
We also conclude that the application of the statutory language to Ms. Lewis‘s case violated the first amendment. The DOR contends that it rejected Ms. Lewis‘s plate to prevent the occurrencе of road rage, a contention that we assume for purposes of this opinion is subjectively sincere. According to the DOR, drivers who are exposed to the “ARYAN-1” plate may become angry, resulting in road rage and thus creating a traffic hazard. See Lewis, 89 F.Supp.2d at 1086 n. 3, 1089.
The DOR believes that its concern with highway safety rather than the mere offensiveness of the “ARYAN-1” plate‘s message brings this case within the rule of City of Erie v. Pap‘s A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000), and cases like it. In Pap‘s, 529 U.S. at 293, 296, the Supreme Court upheld a ban on nude dancing where the city showed that the ban was enacted to prevent certain undesirable secondary effects, such as prostitutiоn and crime, and was not primarily aimed at suppressing the message conveyed by nude dancing. We disagree with the DOR‘s contention. While restrictions of speech because of the secondary effects that the speech creates are sometimes permissible, an effеct from speech is not secondary if it arises specifically from the content of the speech. See Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (opinion of O‘Connor, J.); see also id. at 334 (Brennan, J., concurring in part).
The DOR contends that Ms. Lewis‘s plate may be regulated because it is likely to provoke a violent response. We think, however, that “[t]he only reason why [this] expressive conduct would be especially correlated with violence is that it conveys a particularly odious message; because the ‘chain of causation’ thus necessarily ‘run[s] through the persuasive effect of the expressive component’ of the conduct” (emphasis in original), the possibility for violence is a primary effect of the message itself. See R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 394 n. 7, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), quoting Justice Souter‘s concurrence in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 586, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). While we do not disagree with the DOR that road rage is a conceivable consequence of the “ARYAN-1” plate, any road rage that might occur would result directly from the message of racial superiority that the plate would carry in the minds of some who read it. Road rage, therefore, is a primary effect of the plate, a distinction that prevents the statute from being saved under the “secondary effects” rationale of cases like Pap‘s.
Without evidence that Ms. Lewis has intеntionally sought to provoke a violent reaction or has directed at a particular individual “personally abusive epithets which ... are inherently likely to provoke violent reaction” (i.e., “fighting words“), Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), the mere possibility of a violent reaction to Ms. Lewis‘s speech is simply not а constitutional basis on which to restrict her right to speak. See id. at 23; see also Nationalist Movement, 505 U.S. at 134-35. “The argument
III.
Having determined that the “contrary to public policy” language in
As we have said, the district court correctly determined that the DOR failed in this litigation to advance any constitutional justification for failing to renew Ms. Lewis‘s plate. This should conclude the inquiry, for “[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionаlity of its actions,” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Ms. Lewis is not required to prove the absence of a constitutional basis for the DOR‘s action; she is simply required to make the initial showing that her speech has been restricted. Once Ms. Lewis made that showing, the burden fell on the DOR to advance a constitutional justification for its action, which it has failed to do.
The DOR contends that even if the “contrary to public policy” language is unconstitutional, it must nevertheless reject Ms. Lewis‘s plate because
Because the DOR has not shown that its denial of the “ARYAN-1” plate was constitutional, the district court abused its discretion by refusing to grant an injunction requiring the DOR to issue the plate. We therefore remand the case to the district court for the issuance of such an injunction. Because Ms. Lewis is еntitled to an injunction, furthermore, she is a “prevailing party” entitled to attorney‘s fees pursuant to
IV.
For the foregoing reasons, we affirm the judgment of the district court in part and reverse it in part, and remand the case for