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

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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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125 Comments

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Ric

Enjoyed the article, thanks.

October 14 2010 at 4:14 PM Report abuse +2 rate up rate down Reply
klasakt

This state was one of the first to "embrace' gay marriage as legal. This state votes nothing but liberal agendas constantly, both within the state and in the federal system. What did he expect? I lived there for 19 LONG months. I lived in the capital city. I thought when we moved there it would be like the image you conjure up when you think of the von Trapp family, or "Baby Boom", etc. It is not. Even with laws banning smoking in federal/state buildings or their vicinity, you smell it no matter where you walk. (I walked everywhere in Montpelier.) It is a "green, clean state!" Horse rubbish. At any time you need to watch where you walk on the side walks because even though they have their animals on leashes, the amount of animal excrement is ridiculous. And if you have ever been around drug users you know the smell, the attitude and the "un cleanliness that surrounds a lot of them. I have never seen such a large amount of dirty, filthy, tat'ed people in such a small area in my life ... and I lived outside of San Francisco, as well as other places in the US. I lived on an island 40 years ago as a child, with little running water and questionable electricity ... and the inhabitants there were poorer and cleaner then what I saw in this place. Why this man thought that he could get that licence plate approved in this state I have no idea. On a positive note, a visit to Lake Champlain and the surrounding areas are wonderful. Burlington and all parts north to Canada are really open and fresh and unique. I just didn't live there. I was stuck in Montpelier ... a dark, dreary place with a lot of ne'er do wells.

October 13 2010 at 1:09 AM Report abuse -1 rate up rate down Reply
cronkbrast

The USA founded on the principles of GOD/CHRIST has become so ANTT-GOD that it is sad! The government (and that is BOTH left & right) cares nothing about GOD except as a political pawn for the most part! Many speak of DISCRIMINATION against gays, blacks, etc. Yet no one is willing to step up to the plate until Judge Livingston appeared on the scene to DEFEND the FREEDOM OF SPEECH rights of the followers of JESUS CHRIST! And up until that moment Christians were being DISCRIMINATED on the ISSUS of VANITY PLATES. But it does not end there. There was the case a while back of the Home Depot employee who wore for quite some time a "God Bless America" button on his Home Depot smock. All was cool with Home Depot until one day this gentleman decided to bring the Word of God aka The Holy Bible with him to work to read on his lunch hour. With the PERCIEVED notion from Home Depot that the button now said "GOD Bless America" as opposed to "God Bless AMERICA" he was told to remove the button or be fired as no one is allowed to wear a religious button. DISCRIMINATION again!

October 11 2010 at 8:32 PM Report abuse rate up rate down Reply
vermont02

JUST DON'T TRY TO GET A PLATE WITH YOUR DECEASED PETS NAME ON IT. DMV WILL THING IT IS DRUG RELATED. I TRIED TO GET JAGR - DOG WAS NAMED AFTER PROFESSIONAL HOCKEY PLAYER. ANYBODY EVER HEAR OF HIM. DMV DIDN'T. MUST BE DRUGS.

October 11 2010 at 8:24 PM Report abuse +1 rate up rate down Reply
vtman

As a car owner registered in Vermont with vanity plates I can tell you that the at price the VDMV is charging for them one should have anything they want on the plate, vulgarity excluded. I pay for the privledge of haveing some personal expression to adorn my wheels, let me have what I darn well please. I have had nothing but complements and "Wow, nice, glad you can afford it" responces. The state of Vermont is rapidly becoming a nanny state in many more aspects than vanity plates.

October 11 2010 at 8:23 PM Report abuse +3 rate up rate down Reply
Catherine

Yay, Judge Livingston! Its about time that states followed the First Amendment. You go, Shawn Byrne! And GDBLESU!

October 11 2010 at 8:22 PM Report abuse +5 rate up rate down Reply
Jane

I would never think of telling another American citizen that their promised "freedom to worship" was just a joke. There are peole of all faiths in this nation,and each - according to our Constitution- has a right to worship as they please. I can't change you,and you will never change me. I am a Christian, whether you like it or not, and nothing you ever say orr do will change that. Every citizen of this country should have the right to feel the same. I can not be a true Christian, and deny that I am.

October 11 2010 at 8:05 PM Report abuse +5 rate up rate down Reply
orlandcaro

I think you should be able to about anything on your plate but they should really have to pay a lot for the ego of the things, PS many are to hard to figure out for the average person going down the freeway so they wasted their money anyway.JSTSAN

October 11 2010 at 7:34 PM Report abuse rate up rate down Reply
Tina Angel

I wouldnt mind the states offering plates that stated ones belifes if they carred an array of choices ie not just christian but pagen, jewish, muslem, body mod. or even athesist(sp?)but as it is they norm only carry the one

October 11 2010 at 7:26 PM Report abuse +1 rate up rate down Reply
1 reply to Tina Angel's comment
tyrebitre

Agreed: my state offers "Choose Life" plates but no plate for "Pro Choice". This is neither fair or balanced (but undoubtedly Fox approved). However, I have no objection to religious messages on vanity tags. I think if vanity tags are offered, there should be NO banned messages: people speak of "vulgar" and "offensive" tags - I am personally offended by a "GODSLUV" type message more than a "FOFFNDI" but don't think I should be able to stop you from having it. BTW: close on the spelling - atheist

October 16 2010 at 11:40 PM Report abuse +1 rate up rate down Reply
sandina

Need to have your car serve as a billboard to express your political or religious views? TRY A BUMPER STICKER! A license plate is produced using government funds--i.e., tax dollars--and is an official statement that the car has legal, government-issued permission to operate on the public ways. Allowing religious expressions and symbols thereon IS an unconstitutional "establishment of religion;" but denying permission for them is NOT a violation of the "free exercise of religion," since drivers are free to plaster their cars with as many religious statements and symbols as they want...just NOT with taxpayer subsidies. Allowing secular philosophical statements is NOT an "establishment of religion," as the secular is not religious---despite so many Christian fundamentalists and evangelicals insisting on characterizing the absence of religion as a "spiritual belief system" in and of itself. Teaching evolution is not a "religion." Wishing for peace is not necessarily a "prayer" unless addressed to a deity. The recent trend of conservatives deeming absence of religion a religion in and of itself is a lamentable and underhanded way to try to establish Christianity as America's official religion, making an end run around not just the intent of the founding fathers but the language of the Constitution itself. I am sick of these Tea Party "cafeteria constitutionalists" cherry-picking our founding document to justify and legitimize their biases while ignoring the rest of it.

October 11 2010 at 7:23 PM Report abuse -2 rate up rate down Reply
7 replies to sandina's comment

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