RECOMMENDED FOR FULL-TEXT PUBLICATION
`Pursuant to Sixth Circuit Rule 206
`File Name: 06a0099p.06
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`_________________
`
`No. 04-6393
`
`AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE;
`PLANNED PARENTHOOD OF MIDDLE AND EAST
`TENNESSEE, INC.; SALLY LEVINE; HILARY CHIZ; JOE
`SWEAT,
`
`Plaintiffs-Appellees,
`
`v.
`
`PHILIP BREDESEN, Governor of Tennessee; FRED
`PHILLIPS, Commissioner of Safety of Tennessee,
`Defendants-Appellees,
`
`FRIENDS OF GREAT SMOKY MOUNTAINS NATIONAL
`PARK, INC., a non-profit North Carolina
`Corporation,
`
`Defendant,
`
`NEW LIFE RESOURCES, INC.,
`Intervening Defendant-Appellant.
`
`X---->,---------------N
`
`Appeal from the United States District Court
`for the Middle District of Tennessee at Nashville.
`No. 03-01046—Todd J. Campbell, District Judge.
`
`Argued: November 2, 2005
`
`Decided and Filed: March 17, 2006
`
`Before: MARTIN, NELSON, and ROGERS, Circuit Judges.
`_________________
`COUNSEL
`ARGUED: James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for
`Appellant. Julie E. Sternberg, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New
`York, New York, Jimmy G. Creecy, OFFICE OF THE ATTORNEY GENERAL, Nashville,
`Tennessee, for Appellees. ON BRIEF: James Bopp, Jr., Thomas J. Marzen, Anita Y. Woudenberg,
`BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for Appellant. Julie E. Sternberg, Carrie
`Y. Flaxman, Caroline M. Corbin, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New
`York, New York, Jimmy G. Creecy, OFFICE OF THE ATTORNEY GENERAL, Nashville,
`Tennessee, Melody L. Fowler-Green, ACLU FOUNDATION OF TENNESSEE, Nashville,
`Tennessee, Susan L. Kay, VANDERBILT SCHOOL OF LAW, Nashville, Tennessee, Roger K.
`
`1
`
`

`
`No. 04-6393
`
`Am. Civil Liberties Union of Tenn., et al. v. Bredesen, et al.
`
`Page 2
`
`Evans, Donna Lee, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, New
`York, for Appellees. Mathew D. Staver, LIBERTY COUNSEL, Maitland, Florida, Mary E.
`McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, for Amicus Curiae.
`ROGERS, J., delivered the opinion of the court, in which NELSON, J., joined. MARTIN,
`J. (pp. 10-19), delivered a separate opinion concurring in part and dissenting in part.
`_________________
`OPINION
`_________________
`ROGERS, Circuit Judge. In this case we are required to decide the constitutionality of
`Tennessee’s statute making available the purchase of automobile license plates with a “Choose
`Life” inscription, but not making available the purchase of automobile license plates with a
`“pro-choice” or pro-abortion rights message. See TENN. CODE ANN. § 55-4-306. Although this
`exercise of government one-sidedness with respect to a very contentious political issue may be
`ill-advised, we are unable to conclude that the Tennessee statute contravenes the First Amendment.
`Government can express public policy views by enlisting private volunteers to disseminate its
`message, and there is no principle under which the First Amendment can be read to prohibit
`government from doing so because the views are particularly controversial or politically divisive.
`We accordingly reverse the judgment of the district court invalidating the statute on First
`Amendment grounds.
`
`I.
`Tennessee statutory law authorizes the sale of premium-priced license plates bearing special
`logotypes to raise revenue for specific “departments, agencies, charities, programs and other
`activities impacting Tennessee.” TENN. CODE ANN. § 55-4-201(j). The statute authorizing issuance
`of these license plates earmarks half of their respective profits for named non-profit groups
`committed to advancing the causes publicized on the plates. Id. § 55-4-215 to -217.
`The State of Tennessee takes the other half of the profits. See id. § 55-4-215(a)(2)-(3). Forty
`percent (of the total profits) goes to the Tennessee arts commission, while the remaining 10 percent
`goes to the state’s highway fund. Id. Tennessee will not issue a new specialty license plate until
`customers place at least one thousand advance orders. See id. § 55-4-201(h)(1).
`The Tennessee legislature has determined the price of specialty plates by statute. In general,
`they cost the same as a non-specialty plate plus a $35.00 fee (if the government issues the plate on
`or after September 1, 2002, as in this case). See id. § 55-4-203(d).
`In 2003, the Tennessee legislature passed a law (hereinafter “the Act”) authorizing issuance
`of a specialty license plate with a “Choose Life” logotype “designed in consultation with a
`representative of New Life Resources.” See id. § 55-4-306(b). Half of the profits go to New Life
`Resources, Inc. (New Life). See id. § 55-4-306(c)-(d). New Life’s half “shall be used exclusively
`for counseling and financial assistance, including food, clothing, and medical assistance for pregnant
`women in Tennessee.” Id. § 55-4-306(c). The Act strictly regulates the precise activities that these
`profits shall fund. See id. § 55-4-306(d). It also provides a comprehensive list of dozens of groups
`that must share in a portion of these profits. See id. It is undisputed that during legislative
`consideration of the Act, Planned Parenthood of Middle and East Tennessee “lobbied for an
`amendment authorizing a ‘Pro-Choice’ specialty license plate . . . , but the measure was defeated.”
`JA 231.
`
`

`
`No. 04-6393
`
`Am. Civil Liberties Union of Tenn., et al. v. Bredesen, et al.
`
`Page 3
`
`The plaintiffs in this action, the American Civil Liberties Union of Tennessee and others,
`filed a civil action in federal district court challenging the Act as facially unconstitutional, naming
`the Governor of Tennessee as defendant. New Life intervened as a defendant. The district court
`granted summary judgment to the plaintiffs, enjoining enforcement of the Act. The district court
`held that the authorization of the “Choose Life” license plate was not purely government speech.
`Relying largely upon Fourth Circuit precedent, the district court held that “both the State and the
`individual vehicle owner are speaking”—a “mixture” of government and private speech. JA 33-34
`(citing Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 793-94 (4th Cir. 2004); Sons of
`Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d 610, 615 (4th
`Cir. 2002)). Reasoning that providing for such “mixed” speech is not constitutional if doing so is
`discriminatory as to viewpoint, the district court found that the statute was clearly discriminatory
`as to viewpoint and enjoined enforcement of the Act. The district court expressly refrained,
`however, from reaching the question of whether the entire specialty license plate program was
`unconstitutional.
`New Life appeals. Although the Tennessee state defendants have not appealed, they have
`filed a brief urging this court not to strike down Tennessee’s specialty license plate scheme in its
`entirety.
`
`II.
`First, the district court was not deprived of subject matter jurisdiction in this case by the Tax
`Injunction Act (TIA), 28 U.S.C. § 1341, as argued by New Life. New Life claims that the extra cost
`for a “Choose Life” specialty license plate constitutes a tax that may not, under the TIA, be enjoined
`by a federal district court if a plain, speedy and efficient remedy may be had in Tennessee courts.
` Even making the somewhat artificial assumption that it is really the payments that are being
`challenged in this case,1 the payments are most closely analogous to payments for simple purchases
`from the government. Ordinary purchase payments are not taxes under the TIA, and neither is the
`extra payment for a specialty license plate. It follows that the TIA did not deprive the district court
`of subject matter jurisdiction in this case.
`This conclusion is supported by the longstanding distinction drawn in various legal contexts
`between taxes and ordinary debts. The Supreme Court for instance explained in New Jersey v.
`Anderson, 203 U.S. 483, 492 (1906):
`Generally speaking, a tax is a pecuniary burden laid upon individuals or property for
`the purpose of supporting the Government. We think this exaction is of that
`character. It is required to be paid by the corporation after organization in invitum.[2]
`The amount is fixed by the statute, to be paid on the outstanding capital stock of the
`corporation each year, and capable of being enforced by action against the will of the
`taxpayer. As was said by Mr. Justice Field, speaking for the court in Meriwether v.
`Garrett, 102 U.S. 472, 513:
`
`1Compare Hibbs v. Winn, 542 U.S. 88 (2004). In Hibbs, the Supreme Court held that the TIA did not bar an
`Establishment Clause challenge to a state income-tax credit for payments to certain organizations that give tuition grants
`to students attending religious schools. The Court explained that “in enacting the TIA, Congress trained its attention
`on taxpayers who sought to avoid paying their tax bill by pursuing a challenge route other than the one specified by the
`taxing authority.” Hibbs, 542 U.S. at 104-05. The Court also noted that cases applying the TIA generally “involved
`plaintiffs who mounted federal litigation to avoid paying state taxes (or to gain a refund of such taxes).” Id. at 106.
`Plaintiffs in this case are of course not seeking to avoid paying for a “Choose Life” license plate, and it is therefore at
`least questionable whether the TIA would apply even if the payment for the license plates were a “tax.” We need not
`reach the issue, however, because of our determination that no tax is involved here.
`2“In invitum” means “[a]gainst an unwilling person.” BLACK’S LAW DICTIONARY 787 (7th ed. 1999).
`
`

`
`No. 04-6393
`
`Am. Civil Liberties Union of Tenn., et al. v. Bredesen, et al.
`
`Page 4
`
`“Taxes are not debts. . . . Debts are obligations for the payment of
`money founded upon contract, express or implied. Taxes are imposts
`levied for the support of the Government, or for some special purpose
`authorized by it. The consent of the taxpayer is not necessary to their
`enforcement. They operate in invitum. Nor is their nature affected by
`the fact that in some States—and we believe in Tennessee—an action
`of debt may be instituted for their recovery. The form of procedure
`cannot change their character.”
`See also Fla. Cent. & Peninsular R.R. Co. v. Reynolds, 183 U.S. 471, 475 (1902) (“tax” defined as
`“enforced” contribution and distinguished from ordinary contractual debt); Patton v. Brady, 184
`U.S. 608, 619 (1902) (same); Alaska Consol. Canneries v. Territory of Alaska, 16 F.2d 256, 257 (9th
`Cir. 1926) (same).
`The Fifth Circuit has relied upon the definition of tax in Anderson to hold that a challenge
`to the collection of lease rent payments was not subject to the Tax Injunction Act. The Fifth Circuit
`explained,
`The State contends that the leases are in fact taxes, and thus the federal courts are
`barred by the Tax Injunction Act, 28 U.S.C. § 1341, from entertaining a challenge
`to the State’s actions to collect on the leases. This contention is without merit. The
`lease obligations are a creature of contract, not a mandatory obligation imposed by
`the state as taxes are.
`Lipscomb v. Columbus Mun. Separate Sch. Dist., 269 F.3d 494, 500 n.13 (5th Cir. 2001). The
`analysis would apply a fortiori to ordinary purchases, like the purchase of government bonds, or the
`purchase of a souvenir at a state park gift store. Such purchase payments can hardly be termed
`“taxes” as opposed to ordinary payments on voluntary contracts. This conclusion follows,
`moreover, regardless of what the government does with the sales income.
`In this case, Tennessee’s sale of specialty plates creates contractual debts to pay but imposes
`no tax. Instead of using its sovereign power to coerce sales, Tennessee induces willing purchases
`as would any ordinary market participant. The government confers all the same driving privileges
`on people who forgo specialty plates to buy standard-issue plates. Drivers’ only motive for buying
`such plates, therefore, must rest with the attractiveness of the “Choose Life” message as Tennessee
`has marketed it, not a desire to obey Tennessee’s will. Under Anderson and Lipscomb, these sales
`constitute regular contractual payments, not taxes.
`We recognize that there is some case law to the effect that cases like this one are precluded
`by the Tax Injunction Act. See Henderson v. Stalder, 407 F.3d 351, 354-60 (5th Cir. 2005); NARAL
`Pro-Choice Ohio v. Taft, No. 1:05 CV 1064, 2005 U.S. Dist. LEXIS 21394, at *16-*26 (N.D. Ohio
`Sept. 27, 2005). These cases proceed on the questionable assumption that the applicable test is the
`one for differentiating between a regulatory fee and a tax. See generally Hedgepeth v. Tenn., 215
`F.3d 608 (6th Cir. 2000). This test was created to answer a different question: whether a regulatory
`fee, often directed to a segregated fund for a special use related to the basis for imposing the fee, is
`or is not a tax for TIA purposes. See generally San Juan Cellular Tel. Co. v. Pub. Serv. Comm’n
`of P.R., 967 F.2d 683 (1st Cir. 1992). The classic non-tax regulatory fee
`is imposed by an agency upon those subject to its regulation. It may serve regulatory
`purposes directly by, for example, deliberately discouraging particular conduct by
`making it more expensive. Or, it may serve such purposes indirectly by, for
`example, raising money placed in a special fund to help defray the agency's
`regulation-related expenses.
`
`

`
`No. 04-6393
`
`Am. Civil Liberties Union of Tenn., et al. v. Bredesen, et al.
`
`Page 5
`
`Id. at 685 (citations omitted) (Breyer, J.). In contrast, a purchase price cannot be said to be
`“imposed by an agency upon those subject to its regulation.” Instead it is merely a contract price.
`The test for determining which compelled exactions are taxes and which are fees cannot logically
`be used to determine whether a payment is a compelled exaction in the first place. Under the
`Supreme Court’s basic definition of a tax, logically applied in Lipscomb, the TIA does not preclude
`federal jurisdiction over the plaintiffs’ claims in this case.
`Eight judges of the Fifth Circuit accordingly dissented from the denial of rehearing en banc
`in Henderson. 434 F.3d 352 (5th Cir. 2005) (Davis, J. dissenting). In an opinion with which we are
`in substantial agreement, the dissent acknowledged the accepted test for distinguishing between a
`regulatory fee and a tax, but explained that “this does not mean that the extra charge for a specialty
`plate must be one or the other.” Id. at 355. It does not follow, in other words, that if “the charge is
`not a regulatory fee . . . it must be a tax.” Id. Relying in part on the Ninth Circuit’s reasoning in
`Bidart Brothers v. Calif. Apple Comm’n, 73 F.3d 925 (9th Cir. 1996), the Fifth Circuit dissent
`reasoned that, “the relevant question is whether this charge is a tax and if the answer to this question
`is no, the TIA does not apply regardless of whether the charge is characterized as a regulatory fee,
`a charitable donation or something else.” Henderson, 434 F.3d at 355. Thus even though the Fifth
`Circuit dissent found the charge for the Louisiana “Choose Life” plate not to be a regulatory fee, the
`charge was not a tax either, in part because “the charge is not ‘imposed’ by the legislature; because
`it is entirely optional and voluntary on the part of Louisiana citizens electing to pay the extra charge
`for a specialty plate.” Id. at 356.
`
`III.
`On the merits we are faced with a purely legal issue: whether a government-crafted message
`disseminated by private volunteers creates a “forum” for speech that must be viewpoint neutral. No
`such requirement applies, at least with respect to state-produced specialty license plates like those
`at issue in this case.
`A.
`The “Choose Life” Specialty License Plate Bears a Government-Crafted Message
`“Choose Life,” as it is to appear on the face of Tennessee specialty license plates, is a
`government-crafted message. See Johanns v. Livestock Mktg. Ass’n, 125 S. Ct. 2055 (2005).
`Johanns stands for the proposition that when the government determines an overarching message
`and retains power to approve every word disseminated at its behest, the message must be attributed
`to the government for First Amendment purposes. See id. at 2062-66. In this case, Johanns
`requires the court to conclude that “Choose Life” is Tennessee’s message because the Act
`determines the overarching message and Tennessee approves every word on such plates.
`In Johanns, the Supreme Court held that federal government promotional campaigns to
`encourage beef consumption constituted government speech because the “message of the
`promotional campaigns is effectively controlled by the Federal Government itself.” Id. at 2062. In
`these campaigns, however, the federal government did not explicitly credit itself as the speaker. See
`id. at 2059 (messages bore the attribution, “Funded by America’s Beef Producers”).
`More specifically, the “message set out in the beef promotions” counted as government
`speech because “from beginning to end [it is] the message established by the Federal Government.”
`Id. at 2062. Congress “directed the implementation of a coordinated program of promotion” that
`includes paid advertising to advance the “image and desirability of beef and beef products.” Id. at
`2062-63 (internal quotation marks omitted). Congress and the U.S. Secretary of Agriculture
`enunciated “the overarching message and some of its elements,” while leaving the “remaining
`details to an entity whose members are answerable to the Secretary.” Id. at 2063. Also, the
`“Secretary exercises final approval authority over every word used in every promotional campaign.”
`
`

`
`No. 04-6393
`
`Am. Civil Liberties Union of Tenn., et al. v. Bredesen, et al.
`
`Page 6
`
`Id. The Supreme Court concluded that when “the government sets the overall message to be
`communicated and approves every word that is disseminated,” it is government speech. Id.
`Johanns supports classifying “Choose Life” on specialty license plates as the State’s own
`message. The Tennessee legislature chose the “Choose Life” plate’s overarching message and
`approved every word to be disseminated. Tennessee set the overall message and the specific
`message when it spelled out in the statute that these plates would bear the words “Choose Life.”
`TENN. CODE ANN. § 55-4-306. Tennessee, like the Secretary of Agriculture in Johanns, leaves some
`of the “remaining details to an entity whose members are answerable” to the State government.
`Tennessee delegates partial responsibility for the design of the plate to New Life, but retains a veto
`over its design. See id. § 55-4-306(b). The “Choose Life” plate must be issued in a design
`configuration distinctive to its category and determined by the commissioner. Id. § 55-4-202(b)(2).
`Thus, Tennessee’s statutory law, and its power to withdraw authorization for any license plate, gives
`the State the right to wield “final approval authority over every word used” on the “Choose Life”
`plate. As in Johanns, here Tennessee “sets the overall message to be communicated and approves
`every word that is disseminated” on the “Choose Life” plate. It is Tennessee’s own message.
`Plaintiffs argue that “Choose Life” on specialty plates should be treated not as Tennessee’s
`own message but as “mixed” speech subject to a viewpoint-neutrality requirement. Plaintiffs point
`to the following undisputed facts to support their view: (1) Tennessee produces over one hundred
`specialty plates in support of diverse groups, ideologies, activities, and colleges; (2) a private anti-
`abortion group, New Life, collaborates with the State to produce the “Choose Life” plate; and (3)
`vehicles are associated with their owners, creating the impression that a “Choose Life” license plate
`attached to a vehicle represents the vehicle owner’s viewpoint. These facts are however consistent
`with the determination that “Choose Life” on a Tennessee specialty plate is a government-crafted
`message.
`First, there is nothing implausible about the notion that Tennessee would use its license plate
`program to convey messages regarding over one hundred groups, ideologies, activities, and colleges.
`Government in this age is large and involved in practically every aspect of life. At least where
`Tennessee does not blatantly contradict itself in the messages it sends by approving such plates,
`there is no reason to doubt that a group’s ability to secure a specialty plate amounts to state approval.
`It is noteworthy that Tennessee has produced plates for respectable institutions such as Penn State
`University but has issued no plates for groups of wide disrepute such as the Ku Klux Klan or the
`American Nazi Party. Plaintiffs’ position implies that Tennessee must provide specialty plates for
`these hate groups in order for it constitutionally to provide specialty plates supporting any
`institution. Such an argument falls of its own weight.
`Second, as Johanns makes clear, the participation of New Life in designing the “Choose
`Life” logotype has little or no relevance to whether a plate expresses a government message. See
`125 S. Ct. at 2062-63. In Johanns the Supreme Court upheld the beef marketing scheme as
`government speech even though the development of details was left to an entity “answerable” to the
`Secretary of Agriculture. Id. So long as Tennessee sets the overall message and approves its details,
`the message must be attributed to Tennessee for First Amendment purposes. See id.
`Third, Johanns also says that a government-crafted message is government speech even if
`the government does not explicitly credit itself as the speaker. Many of the promotional messages
`in Johanns bore the attribution “Funded by America’s Beef Producers.” Id. at 2059. The Supreme
`Court explained that the tagline, “standing alone, is not sufficiently specific to convince a reasonable
`factfinder that any particular beef producer, or all beef producers, would be tarred with the content
`of each trademarked ad.” Id. at 2065-66. This was true even though the message was presumably
`conveyed in private media containing mostly privately-sponsored advertising. In contrast, the
`
`

`
`No. 04-6393
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`Am. Civil Liberties Union of Tenn., et al. v. Bredesen, et al.
`
`Page 7
`
`medium in this case, a government-issued license plate that every reasonable person knows to be
`government-issued, a fortiori conveys a government message.
`B.
`Dissemination of a Government-Crafted Message by Private Volunteers Does Not
`Create a “Forum” for Speech Requiring Viewpoint Neutrality
`Plaintiffs’ most intuitively inviting argument—that the government must be viewpoint
`neutral when it relies on like-minded volunteers to disseminate its message—cannot in the end
`invalidate the Act. Plaintiffs point to the following facts to support this aspect of their argument:
`(a) the government must receive one thousand advance customer orders for the “Choose Life” plate
`or Tennessee will not manufacture it; (b) the “Choose Life” message is communicated by private
`citizens’ affirmatively purchasing the plates and attaching them to their privately-owned vehicles;
`(c) the Tennessee government devotes no funds to disseminating the “Choose Life” message, but
`rather raises money by selling these plates to customers who wish to have “Choose Life” plates on
`their cars. While it is true that such voluntary dissemination itself qualifies as expressive conduct,
`the government’s reliance on private volunteers to express its policies does not create a “forum” for
`speech requiring viewpoint neutrality.
`This conclusion is supported by negative inference from the one Supreme Court case dealing
`with license plate speech. In Wooley v. Maynard, 430 U.S. 705 (1977), New Hampshire embossed
`its state motto, “Live Free or Die,” on standard-issue license plates in the same way that Tennessee
`would stamp “Choose Life” on specialty plates. See id. at 707. The Wooley Court characterized
`“Live Free or Die” as “the State’s ideological message,” id. at 715, and the State’s “official view,”
`id. at 717. The Supreme Court held that New Hampshire could not constitutionally prosecute
`vehicle owners for covering up the motto on their license plates, because by doing so the State
`would be unconstitutionally forcing automobile owners to adhere to an ideological point of view
`they disagreed with. Nowhere did the Court suggest that the State’s message could not be so
`disseminated by those who did not object to the State’s motto, or even hint that the State could not
`put the message on state-issued license plates. “Choose Life” is Tennessee’s public message, just
`as “Live Free or Die” communicated New Hampshire’s individualist values and state pride. The evil
`in Wooley was that the automobile owners were compelled to disseminate the message; here
`automobile owners are not only not compelled, they have to pay extra to disseminate the message.
`In general, the government does not create a “forum” for expression when it seeks to have
`private entities disseminate its message. In Johanns, for instance, the federal government paid for
`the “Beef. It’s What’s for Dinner” message and other promotional messages. 125 S.Ct. at 2059.
`Although these involved “print and television messages,” id. at 2059, presumably published or
`broadcasted by hired private entities, the Court classified this and the rest of the beef promotions as
`government speech for First Amendment purposes. See id. at 2058, 2062-66. Likewise, in Rust v.
`Sullivan, the federal government allocated Title X funds to doctors for family planning counseling
`but forbade such doctors from discussing abortion with the program’s patients. 500 U.S. 173, 178-
`83 (1991). In Rust, the Court recognized that when “the government disburses public funds to
`private entities to convey a governmental message, it may take legitimate and appropriate steps to
`ensure that its message is neither garbled nor distorted by the grantee.” Rosenberger v. Rector &
`Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995) (interpreting Rust). If in this case Tennessee
`drivers were paid by the government to display “Choose Life” plates, the Act would unquestionably
`be constitutional.
`In this case, however, the carriers of Tennessee’s message are unpaid. They are volunteers.
`Rather then receiving government money, they pay out of their own pockets for the privilege of
`putting the government-crafted message on their private property. Plaintiffs argue that this fact
`demonstrates that “Choose Life” is not purely the government’s message but also the speech of the
`customers who purchase and display these plates—thus creating a “forum” for speech. While it is
`
`

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`No. 04-6393
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`Am. Civil Liberties Union of Tenn., et al. v. Bredesen, et al.
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`Page 8
`
`true that volunteers’ display of “Choose Life” plates expresses agreement with Tennessee, that fact
`does not mean that a First Amendment “forum” for speech has been created.
`The doctors in Rust disagreed with the government’s anti-abortion policy. But if they had
`been true believers in the policy and had volunteered to work in the program free of charge, the
`speech restrictions in Rust would still have expressed the government’s anti-abortion
`viewpoint—and therefore qualified for government speech treatment. Similarly, the publications
`and television stations in Johanns that published or broadcasted beef advertisements would have
`conveyed a government-crafted message even if they had done so for free. There is nothing in the
`Supreme Court’s decisions in Rust or Johanns that implies that the government has less right to
`control expressions of its policies when it relies on unpaid private people. No constitutionally
`significant distinction exists between volunteer disseminators and paid disseminators.
`Plaintiffs’ view that volunteer dissemination of a government-crafted message creates a
`“forum,” if accepted, would force the government to produce messages that fight against its policies,
`or render unconstitutional a large swath of government actions that nearly everyone would consider
`desirable and legitimate. Government can certainly speak out on public issues supported by a broad
`consensus, even though individuals have a First Amendment right not to express agreement. For
`instance, government can distribute pins that say “Register and Vote,” issue postage stamps during
`World War II that say “Win the War,”3 and sell license plates that say “Spay or Neuter your Pets.”4
`Citizens clearly have the First Amendment right to oppose such widely-accepted views, but that
`right cannot conceivably require the government to distribute “Don’t Vote” pins, to issue postage
`stamps in 1942 that say “Stop the War,” or to sell license plates that say “Spaying or Neutering your
`Pet is Cruel.”
`We cannot affirm the district court in this case without either (1) effectively invalidating all
`such hitherto-accepted forms of privately disseminated government speech, or (2) distinguishing
`these examples from the “Choose Life” specialty license plates.
`Neither the district court nor the plaintiffs on appeal attempt to articulate a basis for
`distinguishing these examples. Government-printed pamphlets or pins saying “Register and Vote”
`or “Buy U.S. Bonds” are clearly government-crafted messages distributed by private individuals
`who have a First Amendment right not to disseminate them if they don’t want to. Postage stamps
`saying “Win the War” or “Support Our Troops” are clearly government-crafted messages
`disseminated by private individuals who, under Wooley, also presumably have a First Amendment
`not to buy or use them if they don’t want to. And license plates saying for instance “Spay or Neuter
`your Pets” are even more obviously indistinguishable from the license plates at issue in this case.
`Indeed, the State of Tennessee in this appeal, not advocating reversal of the district court’s
`injunction but urging us not to invalidate the entire specialty license plate program, offers no tenable
`basis for drawing a distinction between the dozens of government messages available on Tennessee
`plates and the “Choose Life” message.
`
`3See Scott Catalogue No. 905 (1942). The example is hardly unusual, as United States postage stamps have
`carried a variety of government-crafted advocacy messages over the years. Examples include “Give Me Liberty or Give
`Me Death” (Scott No. 1144 (1961)), “Register and Vote” (Scott No. 1394 (1968)), “Giving Blood Saves Lives” (Scott
`No. 1425 (1971)), “Organ and Tissue Donation: Share Your Life . . .” (Scott No. 3227 (1998)), and “Breast Cancer, Fund
`the Fight, Find a Cure” (Scott No. B1 (1998)). See also Scott No. 1129 (“World Peace Through World Trade”), No.
`1142 (“And this be our Motto, in God is our Trust”), No. 1320 (“We appreciate our Servicemen”), No. 1343 (“Law and
`Order”), No. 1438 (“Prevent Drug Abuse”), No. 1455 (“Family Planning”), No. 1802 (“Honoring Vietnam Veterans”),
`No. 1831 (“Organized Labor Proud and Free”), No. 1927 (“Alcoholism You Can Beat It!”), No. 2102 (“Take a Bite out
`of Crime”).
`4See KY. REV. STAT. ANN. § 186.162(2)(y) (2005).
`
`

`
`No. 04-6393
`
`Am. Civil Liberties Union of Tenn., et al. v. Bredesen, et al.
`
`Page 9
`
`Of course the unstated distinction is that the “Choose Life” message is highly controversial.
`With respect to the “Choose Life” message, much more than in the above examples, there are large
`numbers of participants in the public discourse with an opposing view. Such a distinction, however,
`is entirely indefensible as a matter of First Amendment law, however much it might properly
`motivate the Tennessee legislature as a matter of policy. Such a distinction would fly in the face of
`the fundamental free speech principle that views expressed by substantial numbers are treated no
`differently by the First Amendment than extreme or way-out-of-the-mainstream views. Government
`speech disseminated by private volunteers, in other words, cannot have its constitutionality under
`the First Amendment depend on the small number of objectors to the government’s message, or the
`extreme nature of their views.
`In the absence of a tenable distinction, invalidating the Act in this case would effectively
`invalidate not only all those government specialty license plate provisions that involve a message
`that anyone might disagree with, but also effectively invalidate all manner of other long-accepted
`practices in the form of government-crafted messages disseminated by private volunteers. We are
`not provided with a sound legal basis for making such a leap.
`We recognize that the Fourth Circuit has invalidated a nearly identical specialty license plate
`law in South Carolina. See Planned Parenthood of S.C., Inc., v. Rose, 361 F.3d 786 (4th Cir. 2004).
`In Rose Judge Michael enunciated a rati