Free Speech and the Limits of Legislative Discretion: The Example of Specialty License Plates

Abstract

This Article addresses the current specialty license plate controversy. It describes the legislative approval process used in most states, and more specifically details the legal challenges to states' issuance of “Choose Life” plates and refusal to issue plates with the Confederate flag. It sets out the constitutional background against which the specialty plate controversies take place, noting that government officials both among and within states differ as to whether, according to the existing categories in constitutional doctrine, their programs constitute a type of “government speech” or rather constitute private speech “forums.” It examines the structure of the current specialty plate programs in light of free speech values and the restrictions on the government's ability to be “selective” among private speakers. It demonstrates that specialty plate programs are private speech forums rather than nonforum government/private speech interactions, for which a greater degree of governmental discretion to be selective is allowed. As private speech forums, it argues that most of the current specialty plate programs violate the Constitution. Specifically, the range of legislative discretion to enact or reject legislation is fundamentally inconsistent with the limits on discretion that apply to an administrator of a speech forum. This Article explains how states can structure and administer a constitutional specialty plate program by moving it away from the legislature to an entity that can apply clear, non-discriminatory access standards in a consistent way that can be subjected to meaningful judicial review.

Keywords: Constitution, First Amendment, Free Speech, Specialty License Plates, Forum