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Vanity Plates, the First Amendment, and a Judge on the Rise

3 years ago
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Every once in a while, a federal appeals court judge somewhere, generally unknown beyond her or his jurisdiction, will offer up for the rest of us a gem of a ruling, which both offers an interesting recitation of legal principle and explains itself in language accessible to ordinary people.

Ladies and gentlemen, I give you now the latest work of 2nd U.S. Circuit Court Judge Debra Ann Livingston, a Harvard Law School graduate, former federal prosecutor, and 2007 judicial nominee of former President George W. Bush. Her decision last week is perfect water-cooler fodder for a work week cut short by Columbus Day: It's the story of how four letters and two numbers became a constitutional case about how much "message" the government must allow in that tiny little space near your car's rear fender.

If you drive a car or truck, if you are ever a passenger in a car or bus, or if you otherwise pay any attention at all to license plates or freedom of speech or religion, you'll likely be intrigued by Judge Livingston's decision last week striking down a Vermont statute that prohibited so-called "religious messages" on vanity plates in the Green Mountain state. On behalf of two other colleagues on the 2nd Circuit, Judge Livingston ruled that Vermont couldn't bar license owners who wanted plates which contained a "combination of letters or numbers that refer, in any language, to a . . . 'religion' or 'deity.'"

It was a straightforward case. In April 2004, a fellow named Shawn Byrne applied for a license plate "JN36TN" which he intended as a reference to the biblical verse, John 3:16. His request was denied. So he sued the government asserting that the state's vanity-plates rules violated his First Amendment right to be free from religious discrimination. A lower court disagreed with him -- ruling that Vermont's policy was reasonable and "neutral" in its application toward religion. The 2nd Circuit overturned the decision.

Judge Livingston made two main points. She said that Vermont had opened up the door to allowing "religious messages" onto its plates to a point where it could no longer fairly say no to requests like the one Byrne had made. And then she used a series of examples to illustrate her point. A "motorist's personal philosophy, beliefs and values are all permissible and frequent topics of expression -- Vermont has issued plates such as CARP DM, PEACE2U, LIVFREE, and BPOSTIV, among others – provided the philosophies, beliefs, and values express a secular perspective. Those who wish to express a personal philosophy, belief, or value that reflects, even only subjectively, a religious view – e.g., PRAY, ONEGOD, SEEKGOD – have been prohibited from doing so.

"Similarly," Judge Livingston continued, "Vermont freely permits statements of identity and affiliation – e.g., BUTCHER, REBEL, ARMYMOM, GOYANKS; statements of love and admiration – e.g., THXDAD, ILUVLYN, MI3SONS, MISUDAD; and statements of inspiration – e.g., BEWILD, THNKPOS, HOPE4ME, DARE2BU – provided the statements express secular messages and perspectives. Those who would express themselves on matters of self-identity or make statements of love, respect, or inspiration from a religious viewpoint, however, through plates such as REV 3 20, THE REV, UM REV, and PSALM48, are excluded from the forum. It is, in other words, the `prohibited perspective, not the general subject matter' that leads to the exclusion."

As for the legal justifications offered by Vermont's state in defense of its vanity-plates law, Judge Livingston wrote: "... the state offers no rationale for how or why the combination GENESIS – which unquestionably represents, to many observers, a biblical reference – somehow ceases to represent a risk of `disruption and distraction' to other drivers or a risk of public `perception that the government favors certain ideas' simply because the motorist privately intends the combination as a reference to a rock group rather than the Old Testament." Somewhere, no doubt, Phil Collins and Peter Gabriel and the rest of the band are smiling.

Judge Livingston then delivered the coup de grace. "The infirmities in Vermont's application of its own statute are amply demonstrated by the case at bar. Byrne applied for the plate JN36TN, which the state refused to issue because Byrne's supplied meaning indicated his intent to refer to the biblical passage John 3:16. However, as Byrne argues, and the record supports, Vermont would have approved that very same combination had Byrne supplied a secular meaning for it – e.g., `[M]y name is John, I am 36, [and] I was born in Tennessee.'"

I do not know whether Vermont intends to appeal. If it does it can take succor in knowing that license-plate litigation (which includes suits over vanity-plates and also challenges to those state-sponsored specialty-plates like "I Believe" or "Respect Life") has become virtually a cottage industry in America. Last year in South Carolina, for example, a federal judge rejected an attempt by South Carolina to permit an "I Believe" specialty plate which also featured, in case the initial message was too implicit, a cross and a stained window. It will not be long, in other words, before the United States Supreme Court decides to weigh in.

In any event, Vermont will certainly have to re-write its vanity-plates regulations. You can bet, too, that attorneys general in other states have taken notice and instructed their associates to check the local vanity-plate regulations. Byrne the Associated Press reports, did not immediately return a phone call for comment. I'm guessing he still wants the plates. As for Judge Livingston, she's just written the sort of opinion that always seems to come up when a federal appeals court jurist is vetted for a spot as a justice on the United States Supreme Court. Just saying. I mean. JSTYNG.

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