By Maureen Hayden
CNHI Statehouse Bureau
Who would have thought the back of your car could become a free speech battleground?
Probably not the folks in Florida who, in 1987, started the trend of using state-issued specialty license plates to raise money for special causes.
Florida thought it was a good idea to honor the astronauts who had died in the 1986 Challenger space shuttle disaster by building a memorial to them. The state created and sold the special Challenger plate to fund it, raising millions of dollars for the project.
That triggered other states, including Indiana, to create a mechanism for state-issued license plates to become sources of revenue for projects beyond the states’ usual scope.
Now, for an extra fee of $40 beyond what it costs to license your vehicle, Hoosiers can pick from more than 100 state-issued specialty license plates to express their support for organizations that range from the National Rifle Association to the University of Notre Dame.
They’re popular: Almost a half-million Hoosiers bought specialty license plates last year, raising millions of dollars for their favorite causes.
The problem, though, arises when someone doesn’t like the cause. Last year, some conservative lawmakers in the Indiana Legislature tried to eliminate a specialty plate for a gay youth group. Their push failed, but the Bureau of Motor Vehicles later stripped the plates from the group and two other organizations, saying they wrongly traded low-digit plates for contributions. Those groups contend the practice is common.
The Indiana Legislature is likely to take up the issue in the next session, but there are no easy answers. Specialty license plates have caused havoc in almost every state that has them.
In South Carolina, for example, the Legislature recently approved a religious specialty license plate, with the slogan “I believe” and the image of a cross over a stained-glass window. The plate is being challenged in court by a group that promotes the separation of church and state.
Last year, the Arizona Legislature created a “Don’t Tread on Me” special license plate that raises money for tea party groups in the state. Some of the strongest protests came from tea party members themselves, who objected to the government bureaucracy created to dole out the dollars.
At least nine states have approved a Sons of Confederate Veterans’ specialty plate, emblazoned with the Confederate flag. But several did so only after the group sued.
About half the states have approved the sale of “Choose Life” specialty license plates that benefit “pro-life” organizations that promote adoption over abortion. But those plates have been challenged in court in several states on First Amendment grounds, with opponents arguing “viewpoint discrimination” because there is no “pro-choice” alternative. The Supreme Court has let stand some state rulings barring production of the plates.
A central question in the debate: Are the state-issued specialty license plates government speech or private citizens’ speech?
The First Amendment applies to government efforts to restrict free speech; it doesn’t apply to the state itself. But if the state sanctions license plates for certain private organizations to broadcast their messages, is it the state talking? Or is it just allowing some private citizens to talk while censoring others?
Those are some of the questions that the Indiana General Assembly will have to confront.
Maureen Hayden covers the Statehouse for the CNHI Statehouse bureau in Indiana. She can be reached at firstname.lastname@example.org.