Licensing Free Speech

The Supreme Court on December 2 turned down a 1st Amendment case that eventually will have to be heard. The case directly involved an automobile license plate in Louisiana. Indirectly it involved some weighty questions of constitutional law.

The license plate depicts a pelican in the role that legend assigns to a stork. The pelican is carrying a newly born baby in a diaper sling. There is a large legend: “Choose Life,” plus the usual individualized numbers. The state Department of Public Safety will sell the special plates for a surcharge of $25 each, plus a small handling cost.

Under Louisiana’s law, adopted two years ago, proceeds from the sales will be deposited in a Choose Life Fund within the state treasury. A newly created Choose Life Advisory Council, appointed by the state secretary of public safety, will recommend disbursements.

The council will include representatives of the American Family Association, the Louisiana Family Forum and the Concerned Women for America organization. Council members will serve without pay.

The statute directs how the money may be spent-on counseling and other services for expectant mothers considering adoption for their unborn children. The law also directs how money may not be spent: “No monies deposited into the fund shall be distributed to any organization involved in, or associated with counseling for, or referrals to, abortion clinics, providing medical abortion-related procedures, or pro-abortion advertising.”

Three Louisiana taxpayers, joined by the New Orleans section of the National Council for Jewish Women, sued for an injunction to halt the program. They won a judgment in U.S. District Court, but a three-judge panel of the 5th Circuit reversed. The panel never reached the constitutional issues.

Speaking through District Judge William H. Barbour Jr., sitting by designation, the panel held only that the plaintiffs lacked “standing” to sue. They were unable to demonstrate how they themselves would be injured by sale of the plates and disbursement of the subsequent grants.

Viewed through a constitutional prism, the case offers more angles than a hexagram. On the one hand is a 10th Amendment argument for states’ rights. Louisiana has a right to adopt any laws that are not forbidden by the Constitution.

States constantly create special commissions to promote particular causes-grow more grapes, protect our beaches, learn to read! Why not a special council to promote adoption? Where in the Constitution does it say that Louisiana cannot Choose Life? If the pro-abortion folks want a pro-choice license plate, let them get their bill through the state legislature.

To which the Planned Parenthood folks make this reply: When the state creates a forum for the expression of political views, the state cannot constitutionally promote one opinion and deny the forum to an opposing opinion. Such a one-sided policy would violate the constitutional requirement for equal protection of the law.

Suppose a state offered a “Vote Democrat” license plate and created a commission to spend the proceeds solely on Democratic Party causes. Would the Republicans’ only recourse lie in sending more Republicans to Baton Rouge?

What of the establishment clause? The Constitution, as interpreted, forbids the state to pass any law respecting an establishment of religion. The abortion issue is deeply entangled with religious views.

The First Amendment also forbids laws that abridge freedom of speech. Is the Constitution violated by a law that provides a forum for only one point of view?

The issues raised in the Louisiana case will not go away. The Center for Reproductive Law and Policy, based in New York, notes that Florida, Alabama, Oklahoma, Mississippi and South Carolina also have adopted laws providing for “Choose Life” license plates. In Florida the program already has raised more than $1 million to be distributed by nonprofit organizations opposed to abortion.

This is a tough one to call. Once the issue of “standing” is disposed of, Louisiana’s venture into one-sided political advocacy remains on the table. We are dealing here with an idea-the idea that abortion is fundamentally wrong.

The state has provided a vehicle to promote that idea. But there is another idea-that it is fundamentally wrong to compel a woman to bear an unwanted child. The state explicitly shuns that idea.

Is this an abridgement of free speech? I don’t think so, and the high court isn’t prepared to say. Until a fully developed case comes along, we must leave it at that.