Tuesday, October 26, 2010

Second Circuit Rules Vermont's Vanity-Plate Scheme Unconstitutional

Byrne v. Rutledge, No. 07-4375-cv
(2d Cir. Oct. 8, 2010)

Forget what you vaguely remember about free expression and recall the maxim that the law gravitates toward rational results (outside of ERISA and the Eleventh Amendment). Now read the following fact pattern and guess as to whether what is described complies with the First Amendment’s guarantee of free expression:
A state permits individuals to purchase vanity license plates for a fee. Vanity plate applicants must propose the seven-character number and letter combination that they wish to appear on their plate, but the combination may not touch upon certain subjects, including religion or any deity. Applicants must support their proposed combination with a signed statement attesting to the meaning that the proposed plate has to them; this statement and the gut instinct of line-level DMV clerks will be used to determine whether the plate references religion or a deity. Applicants who propose combinations that look religious, such as STJOHN, PSALM, SINNER, and BUDDHA, but who swear that the meaning is not religious, will receive their desired plates. Applicants who propose combinations that look meaningless – such as BVM22 and JMJ1 – but who swear that the meaning is religious, will not.

Of course, the state is Vermont, and the statutory provision in question is Vt. Stat. Ann. tit. 23, § 304(d). The Second Circuit has recently examined § 304 in Byrne v. Rutledge, No. 07-4375-cv (2d Cir. Oct. 8, 2010) (slip opinion is here), and unsurprisingly concluded that Vermont’s vanity plate scheme contravenes the free expression clause of the First Amendment as applied to a religious Vermonter who wished to purchase plate JOHN36TN, commemorating his favorite bible passage (the 6TNth verse of the 3d chapter of the Book of JOHN).

Free speech disputes can be resolved by applying a number of different analytical methods, but one of the most useful is forum analysis – that is, examining the nature of the location in which the expression takes place in order to determine whether the challenged restrictions upon expression are permissible. There are three types of fora, in descending order of their protectiveness of expression: (1) the traditional public forum or designated public forum, wherein content-based restrictions upon speech are permissible only where necessary to serve a compelling government interest (think streets and parks); (2) the limited public forum, a place opened to limited expression on certain topics, wherein restrictions on subjects outside the purpose of the forum need only be reasonable and viewpoint neutral (think city council meetings); and (3) the non-public forum, a space that has not been expressly opened to the public for communication, in which expression may be regulated by reasonable content-based restrictions that are viewpoint-neutral (think military bases). See generally, e.g., Hotel Employees & Rest. Employees Union v. New York Dep’t of Parks & Recreation, 311 F.3d 534, 544-547 (2d Cir. 2002) (collecting cases dealing with the three types of fora).

The first step in solving Byrne’s dispute with the DMV is to settle on what kind of forum a vanity license plate is. Normally, this would entail a careful, lengthy examination of the expressive location’s characteristics, but case law makes quick work of the task because the Second Circuit has already held that Vermont vanity plates are a non-public forum. See Perry v. McDonald, 280 F.3d 159, 168-169 (2d Cir. 2001).

That leaves the core of the dispute: whether Vermont’s prohibition against mentions of religion on vanity plates, combined with its unusual objective/subjective examination of plate applicants’ intended message, is reasonable in light of the purpose served by the forum and is viewpoint neutral.

The answer is no, for the reason that a prohibition against discussion of a subject is not the same as permitting discussion of the subject but limiting participation on the basis of the speaker’s views on the subject. By issuing plates reflecting drivers’ personal beliefs and spiritual philosophy such as STJOHN and BUDDHA, Vermont has effectively opened the vanity plate forum up to expression on spiritual values. Where the DMV runs afoul of the law is in its refusal to issue plates that signify a religious meaning to the applicant – turning away Mr. Byrne’s tribute to the bible while issuing co-op parking lot chestnuts like PEACE2U and LIVFREE silences those who would express a religious viewpoint on the subject of spirituality via their license plates. That’s the ballgame; all that’s left for the DMV is to pay for its lawbreaking. See 42 U.S.C. § 1988(b); Farbotko v. Clinton County, 433 F.3d 204, 208 (2d Cir. 2005).

Dan Barrett is the staff attorney for the ACLU of Vermont. This writing does not represent the views of his employer.

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